27 NMB No. 22
December 6, 1999
Archie Jennings, Esq.
The Law Center
Windward Passage Hotel
P.O. Box 442
St. Thomas, VI 00804
George H. Logan, Esq.
Counsel for Seaborne Virgin Islands, Inc.
Nichols Newman Logan & D'Eramo, P.C.
1131 King Street, Christiansted
St. Croix, US. Virgin Islands 00820-4971
Re: NMB Case Nos. R-6699 and R-6700
Seaborne Virgin Islands, Inc.
This determination addresses the October 15, 1999, letter from the Transportation, Technical, Warehouse, Industrial, and Service Employees Union (TTWISEU or Organization) in Case No. R-6699 and the October 18, 1999, Motion for Reconsideration filed by Seaborne Virgin Islands (Seaborne or Carrier) in Case No. R-6700. For the reasons set forth below, the Board declines to grant the relief sought.
On April 26, 1999, TTWISEU filed an application pursuant to 45 U.S.C. § 152, Ninth, seeking to represent various employees of the Carrier. After an initial investigation, the Board determined that the application covered two crafts or classes, Fleet and Passenger Service Employees (R-6699), and Mechanics and Related Employees (R-6700). On August 27, 1999, the Board authorized elections in the two crafts or classes. Ballots were mailed September 14, 1999, and the counts took place October 13, 1999.
In R-6699, the Organization received votes from six of the nineteen eligible voters. In R-6700, the Organization received votes from three of the five eligible voters. On October 15, 1999, the Board issued a Dismissal in R-6699, and a Certification in R-6700.
At 4:21 p.m., EDT, October 15, 1999, the Board received the Organization's letter. The Board received the Carrier's Motion on October 18, 1999.
The Organization alleges that two employees in R-6699 did not receive ballots. In addition, TTWISEU asserts that a letter sent by Seaborne's President during the election period threatened the employees and disparaged the Organization.
In its Motion for Reconsideration, the Carrier asserts that there were six eligible voters in R-6700, not five, and therefore, the Board should not have issued a Certification.
In response to TTWISEU's letter, the Carrier states that it had posted the Notice of Election and Sample Ballot at both its locations. Therefore, it contends that the employees were informed of the Board's procedures for requesting a duplicate ballot. The Carrier denies threatening employees or disparaging the Organization.
Section 14.0 of the Board's Representation Manual provides in part, as follows:
Allegations of election interference must be received in writing at the Board's offices no later than 4 p.m., eastern time, two (2) business days after the date of the count. Initial filings received beyond this deadline will not be considered timely absent extraordinary circumstances. Allegations of election interference must be accompanied by substantive evidence. The allegations and supporting evidence must present a prima facie case, otherwise the Chief of Staff will find an insufficient basis for further investigation, absent extraordinary circumstances which justify an exception to this standard procedure. Absent extraordinary circumstances, the count will take place as scheduled and, unless a prima facie case is established, a certification or dismissal will be issued.
Section 17.0 of the Board's Representation Manual provides:
Motions for Reconsideration of Board decisions concerning jurisdiction, craft or class, challenges or objections or election interference will be given consideration only upon the following circumstances: 1) the motion (original and one (1) copy) is received by the Chief of Staff within two (2) business days of the decision's date of issuance; 2) the motion is accompanied by a certificate of service which attests to its simultaneous service on the designated participants in the proceeding; and 3) the motion states with particularity the points of law or fact which the movant believes the NMB has overlooked or misapplied and the detailed grounds for the relief sought. Upon consideration of a Motion for Reconsideration, the NMB will decline to grant the relief sought absent a demonstration of material error of law or fact or under circumstances in which the NMB's exercise of discretion to modify the decision is important to the public interest. The mere reassertion of factual and legal arguments previously presented to the NMB generally will be insufficient to obtain relief. Reconsideration may not be sought from the Board's certification or dismissal.
Based upon several factors, the Board finds an insufficient basis to rescind either the Dismissal in R-6699 or the Certification in R-6700. First, both participants filed their submissions late. Second, even if TTWISEU had filed its letter by 4:00 p.m. EDT, on October 15, 1999, the submission did not establish a prima facie claim of interference.(1) Moreover, the Board's review of the record in R-6699 establishes that none of the employees filed duplicate ballot requests. Third, Section 17.0 of the Manual provides that reconsideration may not be sought from certifications or dismissals.
As to the Carrier's substantive contention, there were only five eligible voters in R-6700 because the ballot of one of the employees was returned as undeliverable within seven days of the count. Accordingly, pursuant to Section 12.302-2 of the Board's Representation Manual, the employee's name was removed from the list.
Neither Seaborne nor TTWISEU meets the standards set forth in Section 14.0 and 17.0 of the Board's Representation Manual for further investigation/consideration. The Dismissal in R-6699 and the Certification in R-6700 remain in effect.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Mr. Carl Kingston
Joel C. Glanstein, Esq.
1. See Midway Airlines Corporation, 26 NMB 248 (1999), Express One International, 25 NMB 420 (1998), and Fox River Valley Railroad, 20 NMB 251 (1993) for a discussion of the Board's evaluation of election interference allegations.