25 NMB No. 104

July 20, 1998

Victor J. Van Bourg, Esq.

William A. Sokol, Esq.

Van Bourg, Weinberg,

Roger & Rosenfeld

180 Grand Avenue, Suite 1400

Oakland CA 94612

Joseph L. Manson, Esq.

Verner, Liipfert, Bernhard,

McPherson & Hand

901 15th Street, N.W.

Washington DC 20005-2301

Re:	NMB Case No. R-6446

LSG Lufthansa Services, Inc.

Gentlemen:

This letter addresses the question of the timeliness of the Hotel and Restaurant Employees International Union's (HERE's) charges of election interference in the recent election among Flight Kitchen and Commissary Employees employed by LSG Lufthansa Services, Inc. Based upon the unique circumstances discussed in this determination, the Board finds HERE's submission to be timely under the extraordinary circumstances involved. Accordingly, the Dismissal of this case is revoked.

I.

Section 14.0 of the Board's Representation Manual provides in pertinent part:

Allegations of election interference must be received in writing at the Board's offices no later than 4:00 p.m. two (2) working days after the date of the count. Initial filings received beyond this deadline will not be considered timely absent extraordinary circumstances.

II.

The ballot count in this case took place on May 28, 1998. One hundred and seventy-six employees were eligible to vote. Seventy-five of those employees voted for HERE and one employee checked the write-in space and left it empty. Three ballots were void. Since a majority of eligible voters did not cast ballots, shortly after 4:00 p.m. EDT on June 1, 1998, the Board issued a dismissal of HERE's application. At 5:58 p.m. EDT on that same day, HERE filed allegations of election interference.

On June 2, 1998, the Board asked HERE to show cause "why its allegations should not be treated as untimely."

On June 3, 1998, HERE responded, pointing out that the NMB, HERE's office, and its counsel's office are on different sides of the International Date Line from the employees on Guam and Saipan. Therefore, when, on May 29, 1998, on the mainland United States and Hawaii, HERE sought to compile the evidence supporting its filing, it was already Saturday, May 30, 1998, on Guam and Saipan.

Additionally, HERE points out that the Representation Manual requires that allegations be filed before 4 p.m. two working days after the ballot count, but does not specify Eastern time. HERE filed its allegations before 4:00 p.m. Pacific Daylight Time. Citing these extraordinary circumstances, HERE argues that "equitable tolling of the statute of limitations is absolutely appropriate in this case."

On June 8, 1998, LSG filed a response asserting that HERE's filing was untimely under Section 14.0 of the Representation Manual and should not be considered. LSG interprets Section 14.0 to require filing in Eastern time since all filings must be "received in writing at the Board's offices," and the Board's offices are in Washington, D.C. LSG points out that under HERE's interpretation of Section 14.0, the deadline for filing election interference charges would vary from case to case and from participant to participant, depending upon the location of counsel.

LSG also argues that due to the circumstance of a weekend falling between the two working days after the ballot count, HERE actually had two additional days, including two business days on Guam and Saipan. Therefore, LSG argues that the time differences involved do not constitute extraordinary circumstances.

Finally, LSG argues that HERE failed to establish a prima facie case of election interference as required by Section 14.0 because it has not provided substantive evidence in support of its allegations. HERE provided 11 affidavits to the Board, which were mentioned in the Certificate of Service but were not provided to LSG.1

III.

The Board finds that, in this case, the need to gather evidence from U.S. territories in the Pacific, across the International Date Line, constitutes extraordinary circumstances which justify waiver of the time limitations found in Section 14.0. The ballot count took place at 2:00 p.m. EDT on Thursday, May 28, 1998. At the time of the conclusion of the ballot count, some time after 3:00 p.m. EDT on Thursday, May 28, 1998, it was approximately 5:00 a.m. on Friday, May 29, 1998 on Guam and Saipan.2 Therefore, the employees on Guam and Saipan did not learn about the results of the election until Friday, May 29, 1998. By the time the business day began on Friday, May 29, 1998 at 9:00 a.m. PDT in California, it was 2:00 a.m. on Saturday, May 30, 1998 on Guam and Saipan. When the business week began on Guam and Saipan on Monday morning at 9:00 a.m., it was Sunday afternoon at 1:00 p.m. in California and Sunday 10:00 a.m. in Hawaii. As a result, HERE was faced with collecting evidence, in the form of affidavits from employees, over the weekend in Guam and Saipan, and in Hawaii and California. The Board has not encountered a two business day deadline where the business days for the organization and its counsel are different from the business days for the employees. As such, it is an extraordinary circumstance.

Review of Board cases over the past decade reveals only 3 cases, in addition to this one, involving issues arising on Guam and Saipan. The Board has already recognized the extraordinary circumstances involved in investigating representation disputes on Guam and Saipan by conducting the election at issue using an air express delivery service instead of the U.S. Postal Service to ensure the timely conduct of the election.

For these reasons, the Board finds the distance and time and date differences involved in investigating issues on Guam and Saipan constitute extraordinary circumstances for purposes of Section 14.0 of the Board's Representation Manual.

Since the Board has found extraordinary circumstances, the issue of whether the filing deadline required by Section 14.0 refers to Eastern time needs not be addressed. However, the Board notes that the requirement that charges of election interference be "received in writing at the Board's offices no later than 4:00 p.m." means that the deadline for such filings is 4:00 p.m. in the time zone (Eastern U.S.) in which the Board's offices are located.

CONCLUSION AND REVOCATION OF DISMISSAL

Based upon the facts and extraordinary circumstances set forth above, the Board accepts as timely HERE's allegations of election interference.3 Therefore, pursuant to Section 2, Ninth of the Act, 45 U.S.C. § 152, Ninth, the Board revokes its Dismissal in order to continue its investigation of this case. See Arkansas Midland Railroad Company/Comair, Inc., 23 NMB 260, 271-272 (1996); aff'd, Arkansas Midland R.R. v. NMB, 156 L.R.R.M. 2625 (W.D. Ark. 1997).

Investigation of HERE's allegations of election interference will proceed pursuant to Section 14.0 of the Representation Manual.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Mr. Gregory A. Elliott