25 NMB No. 95

June 24, 1998

Mr. Charles L. Little

International President

United Transportation Union

14600 Detroit Avenue

Cleveland, OH 44107-4250

Mr. Taun Deverill

President

Big Sky Pilots Association

1306 Patriot Street

Billings, MT 59105

Mr. Kim B. Champney

President

Big Sky Transportation Co.

Billings Logan International Airport

1601 Aviation Place

Billings, MT 59105

Re: NMB File No. C-6636/Case No. R-5323

Big Sky Transportation Company

Gentlemen:

On May 13, 1998, the National Mediation Board received a letter from the United Transportation Union (UTU) requesting that the Board transfer the certification currently held by the Big Sky Pilots Association (BSPA) to the UTU to represent the craft or class of Pilots employed by the Big Sky Transportation Company (BSTC) for collective bargaining purposes.

According to the letter and the accompanying agreement, BSPA transferred its rights as the certified representative of Big Sky's Pilots. On May 14, 1998, the Board notified BSTC of the pending transfer of certification from BSPA to UTU and solicited BSTC's comments on the matter. BSTC responded on May 21, 1998 and expressed its concerns regarding the merger. UTU filed a response to BSTC's comments on May 26, 1998, and on June 3, 1998, BSTC filed additional comments.

I.

BSTC expressed concern that BSPA sent the resolution to its members by mail and its members voted by placing their ballots in an unsupervised ballot box located in the crew room. According to BSTC, there is no way to validate this procedure or to ensure that individuals did not vote more than once. BSTC asserts that this election did not comply with BSPA's Charter and By-laws because Flight Dispatchers may have voted in the merger, even though BSPA's Charter and By-laws limit membership to line pilots. BSTC also notes that only line pilots are covered by the Certification. Finally, BSTC asserts that its collective bargaining agreement with BSPA has expired and has no further force and effect.

The record reflects that, BSPA conducted a "ballot to be secretly voted upon by the membership" to approve the following resolution:

I want the Big Sky Pilot's Association (BSPA) to merge with the United Transportation Union (UTU) and have the UTU represent me as my collective bargaining representative in dealing with Big Sky Airlines on all matters relating to wages, hours, working conditions and fringe benefits.

Twenty-two members of the BSPA voted in favor of the resolution, three voted against the resolution, two ballots were rejected for failure to follow proper procedure and five individuals did not vote. According to Taun Deverill, the President of BSPA, ballots were placed in mail boxes in the ready room on May 3, 1998 and notice of the election was placed upon the bulletin board. The notice informed members that the election would continue until May 11, 1998. The ballot box was left in the ready room during the voting period. Deverill described the procedures used to ensure secrecy as follows:

The standard method for secret ballot elections was used. All ballots were identified and then sealed in an inner envelope, which was then sealed in an outer envelope that had the voter's name on it. The voter was required to sign the outer envelope. Once all signatures were verified with the proper names, all of the envelopes were opened and the inner envelopes [were] removed.

The BSPA Charter and By-laws does not specifically address a merger with another organization, but it does provide that, "the charter and its sections may be amended, added to, or repealed at any time by a majority vote of the membership . . . ." The charter provides further that an election will be held to decide "issues of concern directly affecting the membership's well-being as a whole or over which there is a clear difference of opinion . . . ." It appears that a merger would fall under this definition.

According to the UTU, the BSPA voted to include Flight Dispatchers within the organization last year. BSPA asked BSTC to recognize the Flight Dispatchers, but the Carrier refused. UTU does not claim that Flight Dispatchers should be included in the craft or class of Pilots.

II.

In most instances, the Board grants a transfer request based upon assertions contained in the request letters. See, for example, Northwest Airlines Foremen's Association, 18 NMB 446 (1991); Transtar Pilots Association, 14 NMB 377 (1987); Brotherhood of Railway, Airline & Steamship Clerks, 13 NMB 408 (1986); City of Prineville Railway Employees Union, 13 NMB 6 (1985); United Transportation Union, 11 NMB 228 (1984). As the Board noted in Transtar, 14 NMB 377, when the Board "is properly notified that representatives of employees as defined in 45 U.S.C. § 151, Sixth, of the Act, have merged, the Agency will recognize the new organization henceforth as the representative of the employees in the craft or class . . . ." The Board views an organization's decision to merge into another organization as an internal matter and will grant requests for transfers of certification based on union mergers unless it discovers evidence of fraud or gross abuse in the merger or transfer process. Northwest Airlines Foremen's Association, 18 NMB 446, 448 (1991).

The Railway Labor Act requires only that the Board investigate a transfer of certification based on a union merger rather than mandating any procedures for such an investigation. Continental Airlines, Inc., et al. v. National Mediation Board, 793 F. Supp. 330 (D.D.C. 1991), aff'd mem., 957 F.2d 911, cert. denied, 493 U.S. 974 (1992).

In the course of this investigation the Board does not find evidence of fraud or gross abuse in the merger or transfer process. Rather, a majority of BSPA's members voted in a secret ballot election to merge with UTU. BSPA's Charter and By-laws require only that a secret ballot election be conducted. It appears that BSPA took steps to notify its members of the election and to insure the secrecy of the vote.

In response to the Carrier's questions concerning the Flight Dispatchers and the most recent agreement between BSTC and BSPA, the Board is not concerned with the BSPA's composition or with the status of the labor agreement. They are not affected by this determination.

Based on its investigation, the National Mediation Board hereby finds that the Big Sky Pilots Association has merged into the United Transportation Union. Effective immediately, our records will be revised to reflect the transfer of the certification issued to Big Sky Pilots Association in NMB Case No. R-5323 to the United Transportation Union.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff