27 NMB No. 23

December 13, 1999

Daniel M. Katz, Esq.

Katz & Ranzman, P.C.

1015 18^th Street, NW.

Suite 801

Washington, DC 20036

Harry A. Rissetto, Esq.

Morgan, Lewis & Bockius

1800 M Street, NW.

Washington, DC 20036

Sheldon M. Kline, Esq.

Morgan, Lewis & Bockius

1800 M Street, NW.

Washington, DC 20036

Re: NMB Case No. R-6635

American Airlines, Inc.

Gentlemen:

This determination addresses the August 13, 1999, Motion for Reconsideration filed by the Communications Workers Union of America (CWA). The Organization seeks reconsideration of the standard one-year dismissal bar imposed in the Board's determination in American Airlines, Inc., 26 NMB 412 (1999). American Airlines filed a response opposing CWA's motion on August 20, 1999. CWA filed a reply on August 24, 1999, and the Carrier submitted a final response on August 31, 1999. For the reasons set forth below, CWA's motion is denied.

I.

In American Airlines, supra, the Board found that the Carrier's actions did not interfere with an election held among its Passenger Service Employees in December 1998. The Board dismissed CWA's application and applied the standard one-year bar contained in 29 C.F.R. § 1206.4(b) which commenced on the date of the dismissal.

CWA requests that the Board start the bar period effective December 15, 1998, the date of the ballot count, rather than August 11, 1999, the date of the Board's decision and dismissal. In support of this request, the Organization advances several arguments. CWA contends that 29 C.F.R. § 1206.4(b) is "unduly obstructive of organizing." CWA contends that a preferable practice is that of the National Labor Relations Board (NLRB) under the Labor Management Relations Act (LMRA). Under the LMRA, the one-year bar commences on the date the election is held. According to CWA, starting the bar period earlier would counteract the advantage held by American because of the Carrier's "superior access to the electorate." The Organization maintains that during the election and continuing through the present, American has used this access to "undermine support for unionization."⁽¹⁾

CWA argues further that "unusual or extraordinary circumstances" justify its request, and that the Organization should not be "penalized" because the Board's investigation into the interference allegations took eight months. The Organization cites America West Airlines, Inc., 21 NMB 362 (1994), in support of its position that when the Board finds "unusual or extraordinary" circumstances it will not impose a one-year bar. CWA also asserts that the purpose of the Board's Rule is to conserve agency resources.

In response, American argues that the Board should deny CWA's motion. The Carrier characterizes the Organization's motion as both an improperly-filed request for rule-making and a request for an advisory opinion. According to American, CWA has failed to meet the standards for Reconsideration set forth in Section 17.0 of the Board's Representation Manual. In addition, the Carrier asserts that the Organization has not established "unusual or extraordinary circumstances." American also maintains that CWA's citation of the NLRB's practice is inapposite because of the distinct differences between the statutory schemes of the LMRA and the Railway Labor Act (RLA). Finally, the Carrier argues that "stability of labor relations" is the basis for the Board's Rule, citing United Airlines, Inc., 8 NMB 642 (1981).

II.

A.

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 certification or dismissal.

The Board grants relief upon requests for reconsideration only under very limited circumstances. Further, the Board's review of the Organization's submission in support of its Motion for Reconsideration establishes that CWA has failed to state a sufficient basis for granting the relief requested.⁽²⁾ The Organization has not demonstrated a material error of law or fact. For example, in Virgin Atlantic Airways, 21 NMB 183, 186 (1994), the Board stated:

The Board recognizes the vital importance of the consistency and stability of the law as embodied in both NMB determinations and judicial decisions. Accordingly, the Board does not intend to reverse prior decisions on reconsideration except in the extraordinary circumstances where, in its view, the prior decision is fundamentally inconsistent with the proper execution of the NMB's responsibilities under the Railway Labor Act.

B.

29 C.F.R. § 1206.4(b) of the Board's Rules provides, in part, as follows:

Except in unusual or extraordinary circumstances, the National Mediation Board will not accept an application for investigation of a representation dispute among employees of a carrier . . . (b) For a period of one (1) year from the date on which: (1) The Board dismissed a docketed application after having conducted an election among the same craft or class of employees on the same carrier and less than a majority of eligible voters participated in the election . . . .

This Rule has been in effect in its present form since 1979.⁽³⁾ In United Airlines, supra, at 652, the Board stated, "[s]tability of labor relations is the basic reason for the adoption of the rule and continuous organizing . . . does not promote such stability as the drafters of the Railway Labor Act envisaged." See also Eastern Air Lines, Inc., 18 NMB 23 (1990).

Since 1979, the Board has found "unusual or extraordinary circumstances" to justify modifying the bar only on rare occasions. In America West, supra, at 366, the Board waived the bar because it had authorized a re-run election "over five years ago, but, due to litigation and other factors, [the election] still [had] not taken place." The Board also noted that "the Carrier does not object to the waiver of the bar."

Other examples of "unusual or extraordinary circumstances" include changes in systems or mergers. See, e.g., International Total Services, 20 NMB 537 (1993); Procedures for Handling Representation Issues Resulting from Mergers, Acquisitions or Consolidations in the Airline Industry, 14 NMB 388 (1987).

By analogy, the Board notes that it has either reduced or expanded the two-year certification bar under 29 C.F.R. § 1206.4(a) in cases where there has been a finding that certain conduct on the part of either carriers or organizations warrants a response from the Board. Many of these cases have involved actions which either violate the secrecy of the ballot, or otherwise undermine the Board's processes. Northwest Airlines, Inc., 26 NMB 269 (1999); Midway Airlines Corporation, 26 NMB 154 (1999); United Air Lines, Inc., 22 NMB 12 (1994). And, as in America West, supra, the Board also will alter the bar in the event of intervening litigation. US Airways, 26 NMB 323 (1999). None of the "unusual or extraordinary circumstances" cited above are present here.⁽⁴⁾

III.

The Board has carefully considered the record in this case, including the submissions from the CWA and the Carrier. Based upon its review, the Board finds no basis to grant the relief requested by CWA. The one-year bar will run from August 11, 1999, the date of the dismissal.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable
Chief of Staff

Copy to:

Richard Malahowski, Esq.

1. CWA has submitted copies of letters issued by the Carrier to Passenger Service Employees announcing new "employee/management interaction teams" and promising $500 to the employees for their input.

2. The Board notes that CWA does not seek reconsideration of any points presented to the Board previously, since the Organization did not request either a waiver or reduction of the bar as an alternative form of relief in its submissions prior to the Board's decision.

3. The Board's one-year dismissal bar has been in effect since 1954. In 1979, the Board modified 29 C.F.R. § 1206.4(b) to delete a footnote which excluded "employees of a craft or class who are not represented for purposes of collective bargaining."

4. CWA argues that the NLRB practice of commencing the bar as of the count date is more conducive to organizing efforts. The Board notes in this regard that a recent study found that the rate of organizational success under the RLA is significantly higher than that under the LMRA. Morris, A Tale of Two Statutes, Employee Rights and Employment Policy Journal, Chicago-Kent College of Law, Vol. 2, No. 2, p. 320 (1998). Further, the one-year election bar under the LMRA is dictated by the Statute. Nevertheless, the Board is aware that the 1979 amendment to § 1206.4(b) may have had results which were not intended. Therefore, the Board will further evaluate the appropriate application of the bar Rule relative to the RLA's underlying purposes.