25 NMB No. 80

April 24, 1998

Joseph L. Manson, III, Esq.

Verner, Liipfert, Bernhard,

McPherson & Hand

901 15^th Street, N.W.

Washington, DC 20005

Mr. Ronald G. Spann
International Organizer
United Paperworkers Int'l. Union
628 Derby Circle
Paducah, KY 42003

Re: NMB Case No. R-6588

Express I Airlines, d/b/a Northwest Airlink

Gentlemen:

This determination addresses appeals of Mediator Patricia Sims' rulings filed by Express I Airlines d/b/a Northwest Airlink (Carrier or Express I) and United Paperworkers International Union (UPIU). On February 24, 1998, UPIU filed an application seeking to represent Flight Attendants employed by Express I.

I.

On April 2, 1998, Mediator Sims ruled that individuals who were hired between the February 15, 1998, cut-off date for eligibility and the February 24, 1998, date on which the UPIU filed its application were not eligible to vote. The Mediator also ruled on the eligibility of several other individuals, including Leticia Boyd and Michelle Young. Mediator Sims ruled Leticia Boyd eligible as a working Flight Attendant and Michele Young ineligible as a temporary employee.

On April 7, 1998, UPIU appealed Mediator Sims' rulings regarding Leticia Boyd and Michelle Young. On April 9, 1998, the Carrier appealed Mediator Sims' rulings regarding individuals who became employees between February 15 and February 24, 1998. On that same date, the Carrier filed a response to UPIU's appeals.

II. Leticia Boyd and Michele Young

UPIU asserts that Leticia Boyd is not an eligible voter because she has not flown since December 1997, has not been scheduled to fly since that date, and has not appeared on any seniority list received since January 1998. In support of its contentions, on March 18, 1998, UPIU submitted a March 16, 1998, seniority list. Boyd was not included on that list. UPIU had previously submitted a seniority list revised as of March 10, 1998. Boyd is not on that list either.

UPIU asserts that Michele Young is included on the seniority lists as a part-time employee and, as such, should be eligible to vote.

The Carrier asserts that Boyd continues to be employed as a Flight Attendant and is eligible to vote and that Young, as a temporary employee, is not eligible. The Carrier asserts that Boyd was hired on November 21, 1997, and is currently employed by the Carrier as a Flight Attendant. The Carrier further asserts that Young is a temporary part-time employee and does not have an expectation of continued employment. Although the Carrier was given the opportunity to do so, it did not submit evidence in support of its assertions.

On April 2, 1998, Mediator Sims ruled Boyd eligible as a working Flight Attendant, and Young ineligible as a temporary employee.

Review of the record reveals that the seniority lists submitted by UPIU do not include Boyd, but do include Young, who is specifically listed as a part-time temporary employee. Young is listed, with an asterisk but no seniority number, as the last individual on the seniority lists, below those individuals hired after February 15, 1998.

Based upon the record in this case, the Board finds that Boyd and Young are not eligible to vote.

Although the Carrier supplied evidence supporting its other challenges and status changes, the record does not include evidence that Boyd maintains an employment relationship with the Carrier. The only evidence included in the record are the seniority rosters which do not include Boyd. The Board finds insufficient evidence that Boyd continues to have an employment relationship as a Flight Attendant with the Carrier.

Section 5.302 of the Board's Representation Manual, provides that temporary employees with a "present interest" are eligible to vote, so long as they "have a reasonable expectation of continued employment or re-employment in the craft or class." The Carrier's contention that Young does not have a reasonable expectation of continued employment is supported by the seniority lists noting Young's status as a temporary employee and by the fact that she is listed below individuals hired more recently. Based upon the record, the Board finds that Young, as a temporary employee, does not have a reasonable expectation of continued employment and is not eligible to vote.

III. The Cut-Off Date

A.

The Carrier appeals Mediator Sims' ruling that 34 individuals who were hired after the cut-off date are not eligible to vote. The Carrier asserts that three groups of individuals who were in training on the February 15, 1998, cut-off date set by the Board, but were hired by February 24, 1998, the date on which the Board received UPIU's application, should be eligible to vote. Specifically, the Carrier asserts that the individuals who graduated from training on February 13, 1998, and were hired on February 16, 1998, as well as the individuals who graduated from training on February 18, 1998, and were hired on February 20, 1998, and the individuals who graduated from training on February 20, 1998, and who were hired on February 23, 1998, were all hired and performing line functions before the Board received UPIU's application, and, therefore, should be eligible to vote.

The Carrier asserts further that it was unaware of UPIU's campaign when it hired Flight Attendants between February 15 and February 24, 1998 and therefore, "did not intend to 'pad' the list of eligible voters."

According to the Carrier, the 34 individuals constitute 26 percent of the craft or class and their exclusion would permit less than a majority of the craft or class to determine the results of the election. The Carrier calculates that if the 34 individuals are removed from the total number of employees who were sent ballots (129), then only 37 percent of the craft or class could determine the outcome of the election (48 of 95). Therefore, the Carrier asserts, that the outcome of the election would not reflect the desires of a majority of the craft or class. The Carrier asserts that all Flight Attendants hired before UPIU filed its Application should be permitted to determine whether they desire representation. Finally, the Carrier points out that, in other circumstances, the Board has adjusted the cut-off date to ensure a fair election.

UPIU asserts that the individuals at issue were not employed on the cut-off date and should not be eligible to vote.

B.

The Board's review of the eligibility list reveals that four of the 34 individuals hired between February 15, 1998, cut-off date and February 24, 1998, have resigned. Additionally, as a result of other status changes, the total number of Flight Attendants, including those individuals hired after February 15, 1998, is 119 (89 eligible, plus 30 new hires). According to the Board's calculations, the individuals hired after February 15, 1998, comprise an increase of approximately 25 percent of the craft or class.

C.

Section 3.5 of the Board's Representation Manual provides that, "[t]he cut-off date for determining eligibility to vote is the last day of the last payroll period ending prior to the date of receipt at the NMB's offices of the 'Application for Investigation of Representation Dispute.'"

Applying this principle to this case shows that the disputed individuals are not eligible to vote. It is undisputed that all of the individuals at issue were placed on the payroll after the February 15, 1998, cut-off date. The Board has upheld the use of the cut-off date to determine eligibility and refused to change the cut-off date to include new employees in numerous cases including, Western Pacific Airlines, 23 NMB 217 (1996); America West Airlines, Inc., 21 NMB 293 (1994); USAir, Inc., 16 NMB 63 (1988); and Piedmont Airlines, 9 NMB 41 (1981).

The Board does not change the cut-off date absent unusual circumstances. America West Airlines, Inc., supra. Circumstances in which the Board has changed the cut-off date include, but are not limited to, a five year delay and a turnover of clearly more than half of the craft or class. America West, 21 NMB at 299; Piedmont Airlines, supra. Additionally, the courts have upheld the Board's refusal to change the cut-off date absent unusual circumstances. Air Canada v. NMB, 478 F. Supp. 615 (S.D.N.Y. 1979), aff'd, 659 F.2d 1057 (1981), cert. denied, 454 U.S. 965 (1981); British Airways v. NMB, 533 F. Supp. 150 (E.D.N.Y.) aff'd, 685 F.2d 52 (2d Cir. 1982).

Most recently, in Western Pacific Airlines, 23 NMB at 215-216 (1996), the Board found no unusual circumstances existed which would justify including on the eligibility list four individuals who had been offered employment before the cut-off date, but began work between the cut-off date and the date of the Board's docketing letter. In that case, the four individuals would have increased the total number of eligible voters by approximately 21 percent, from 15 to 19 individuals. Western Pacific Airlines, 23 NMB 217 (1996).

After review of the evidence and argument in this case, the Board finds the circumstances here to be similar to the circumstances described in Western Pacific Airlines, 23 NMB 213 (1996). Here, as in Western Pacific, the Carrier seeks to include individuals hired between the cut-off date and the date the Board receives or dockets the application. However, simply increasing the employee complement by 25 percent is not an unusual circumstance. Where, as here, the increase in the number of employees does not result in turnover of more than half of the craft or class, the Board finds no unusual circumstances which would justify changing the cut-off date.

The Carrier relies upon America West, supra, to support its argument that, absent a change in the cut-off date, less than a majority of the craft or class could select a representative. However, in America West, the Board refused to change the cut-off date where 48.6 percent of the individuals on the original eligibility list had left the craft of class between the cut-off date in 1988 and the new election to be scheduled in 1993. There, although delay resulted from a carrier interference investigation and subsequent litigation, the Board refused to change the cut-off date for eligibility to vote in a re-run election ordered after the Board found carrier interference. The Board relied upon the fact that a majority of the members of the original craft or class continued to be eligible to vote, as well as the added concern that the election was a re-run in response to election interference.

CONCLUSION

Based upon the facts and circumstances of this case, the Board finds Leticia Boyd and Michele Young are not eligible to vote. Further the Board finds that all individuals hired by the Carrier as Flight Attendants after the February 15, 1998, cut-off date are not eligible. Their ballots, if cast, will not be counted. The count will take place as scheduled.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to: Patricia Sims, Mediator