On November 4, 1999, the International Association of Machinists and Aerospace Workers, AFL-CIO (IAM or Organization), filed an application pursuant to 45 U.S.C. § 152, Ninth, alleging a representation dispute among Office Clerical Employees of United Airlines, Inc. (United or Carrier).

At the time this application was filed, these employees were not represented.

This matter was assigned for investigation to Benetta M. Mansfield.

BACKGROUND

On January 6, 2000, IAM filed challenges to the list of potential eligible voters alleging, inter alia, that 202 employees should be added to the list and are eligible to receive ballots in the election. The Carrier's original deadline to respond to the IAM's submission was January 13, 2000. Prior to January 13, representatives of the IAM and United requested an extension because they were meeting to reach an agreement on the Organization's challenges. United and the IAM agreed to the deletion of several hundred employees from the list and the addition of eighteen employees. However, they did not reach agreement on the IAM's contention that 202 employees should be added to the list. On January 19, 2000, United filed a position statement on the challenges.

On January 13, 2000, ballots were mailed to the original eligible voters identified by United. The ballot count was scheduled for February 10, 2000. On January 24, 2000, the Investigator ruled on the challenges⁽¹⁾ finding, in part, that of the remaining ninety-five employees IAM contended should be added to the list, fifty-five employees in various job positions should be added to the craft or class as eligible voters. The Investigator directed United to provide address labels by January 25, 2000. After receiving the Investigator's decision, United asked the Investigator whether it should supply address labels for all employees in the classifications ruled eligible. The Investigator responded that all employees in the job classifications were included. On January 27, 2000, the Board received a list of 500 additional "eligible voters" and mailing labels for the voters in the job classifications included by the Investigator.

On January 27, 2000, the Investigator asked IAM and the Carrier to submit by January 31, 2000, position statements on how the Board should handle the additional 500 employees. On January 28, 2000, IAM requested an extension stating that "several disturbing factors . . . have just come to light regarding the company's conduct during the election period." The Board granted the IAM's request until February 3, 2000.

On February 3, 2000, the Investigator was advised by IAM and United representatives that the IAM and United were attempting to resolve how the new voters should be treated. The participants requested an additional extension and impounding of the ballots. The Board granted an extension until February 10, 2000, for position statements, and until February 14, 2000, for responses, postponed the ballot count, and impounded the ballots.

On February 10, 2000, the IAM and United advised the Board that they failed to reach an agreement on how the new voters should be treated. Each submitted a timely position statement. On February 14, 2000, the Carrier responded to the IAM's position statement. Resolution efforts between the IAM and United, and the extension requested by the IAM, resulted in an additional sixteen-day delay in the process.

ISSUES

Should the election be rerun? If so, how should any re-run election proceed?

CONTENTIONS

IAM

The IAM requests that the Board void the current election, order a new election among the complete Office Clerical craft or class in mid-May 2000, and due to United's alleged interference with the election process, order a "Laker" ballot.⁽²⁾

The IAM argues that United intentionally failed to reveal a large number of employees and sought to exclude these employees by alleging "presumptions of eligibility or ineligibility" in the Board's Representation Manual after the Organization filed challenges. The IAM contends that United's "failure to provide complete and reliable information about the composition of the craft or class interferes with the NMB's procedures and its ability to conduct a fair election."

The IAM also contends that United interfered with the election when, on January 21, 2000, United's Chairman and CEO, James Goodwin, sent a letter to all "Administrative and Management Employees" announcing pay increases, effective in mid-April, as part of the Carrier's "Vision 2000" program. This information was released to the employees in the craft or class two days after the ballots were mailed, the IAM says.

UNITED

United requests that the Board send ballots to the additional employees entitled to vote without further delay. United contends that the voting period should be extended an additional twenty-eight calendar days from the date the additional ballots are mailed. On a new count date, the Board should count the impounded ballots and the additional ballots.

As to the IAM's allegations, United responds that the IAM's request for a Laker ballot at the "pre-count" stage is unprecedented and has been granted only in the most egregious situations.

Moreover, United states that there is no merit to the IAM's contention that it interfered with the election process by failing to include certain administrative employees on the list of potential eligible voters. United notes that there were substantial negotiations over the original list, which resulted in agreement to remove approximately 500 employees from the list. United states that its response to the IAM's challenges was in the good faith belief that the administrative employees the IAM sought to add are the alter egos of the managerial employees for whom they worked, and therefore ineligible. Finally, United states that the Vision 2000 program, including the pay increases, has been planned for three years, with IAM's full knowledge. Therefore, these allegations are without merit, United says.

FINDINGS OF LAW

Determination of the issues in this case is governed by the Railway Labor Act (RLA or Act), as amended, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:

I.

United is a common carrier by air as defined in 45 U.S.C. § 181.

II.

IAM is a labor organization and/or representative as provided by 45 U.S.C. § 152, Ninth.

III.

45 U.S.C. § 152, Fourth, gives employees subject to its provisions "the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter."

IV.

45 U.S.C. § 152, Ninth, provides that the Board has the duty to investigate representation disputes and shall designate who may participate as eligible voters in the event an election is required.

DISCUSSION⁽³⁾

I.

Contentions Regarding Interference

The IAM contends that United's election interference merits rerunning the entire election utilizing a Laker ballot.

Section 14.0 of the Board's Representation Manual states,

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.

(emphasis supplied). Only in the most egregious circumstances has the Board interceded prior to a ballot count and found grounds to rerun an election. See Metroflight, Inc., 13 NMB 89 (1986) (carrier distributed a letter to all employees encouraging them to return ballots to Carrier officials). Cases cited by IAM are inapposite because they address post-election interference investigations.

Here, the Board concludes that IAM's allegations about United's additions to the eligibility list and the implementation of the Vision 2000 program do not require a pre-count investigation and determination.

II.

Re-Run Election

The Board reruns entire elections when there is a post-election finding of interference, laboratory conditions have been tainted such that a fair and free election is no longer possible, or if there is a substantial error in the election process. See, e.g., AirTran Airlines, 26 NMB 226 (1999) (mailing error in which no employees received ballots required rerun). The Board has also set aside and rerun elections where, although there is no finding of interference, the laboratory conditions required in representation elections are not present. See Trans World Airlines, Inc., 8 NMB 298 (1981).

The Board received numerous inquiries from United employees indicating confusion in the balloting process, and the eligibility of voters in this case. The Board finds that the events following submission of the original list, including the addition of 500 eligible voters, and the Board's subsequent decision to impound the ballots, has caused widespread voter confusion and uncertainty in this election. The Board has considered the alternatives, including an extension of the voting period to permit only the additional 500 eligible employees to vote. The Board has determined that this alternative would further confuse the situation.

The Board concludes that these circumstances require a re-run election for all voters on the List of Eligible Voters. The Board makes no finding of election interference, and therefore, the request for a Laker ballot is denied. The Carrier is directed to post the attached "Notice to Office Clerical Employees of United Airlines" immediately.

CONCLUSION AND ORDER

The mail ballot election conducted in this case is set aside and a new mail ballot election is ordered. Due to the need to print new ballots, the ballots shall be mailed on March 22, 2000. The Board will count the ballots at 11 a.m., EDT, on April 26, 2000.

Due to the delay in this election, within five days of the date of this decision, United will provide an additional set of address labels for the entire List of Eligible Voters which the Board will provide to the IAM. Since the period for challenges and objections has passed, only status changes will be accepted.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable
Chief of Staff

cc: Steven Sawyer, Esq.

Mr. Joel P. Dant

Gary S. Kaplan, Esq.

Mr. R. Thomas Buffenbarger

Mr. Robert J. Roach, Jr.

David Neigus, Esq.

1. United argued, and the Investigator found, that of the 202 proposed additions, eighty-two were already on the list; one was hired after the cut-off date; four were terminated; one had retired; twelve were already represented; and the Carrier was unable to confirm that seven names on the IAM's list were United employees.

2. On a Laker ballot, the choices are the Organization and "no representation." The majority of votes determines the outcome.

3. A statement of facts is unnecessary in this case because the Board's ruling is procedural.

NOTICE TO OFFICE CLERICAL EMPLOYEES

OF UNITED AIRLINES, INC.

The National Mediation Board mailed ballots to Office Clerical Employees of United Airlines on January 13, 2000.

On January 27, 2000, an additional 500 eligible voters who were not mailed ballots were added to the List of Eligible Voters. The Board impounded all returned ballots for the count scheduled on February 10, 2000, and held up mailing ballots to the 500 additional employees. The Board concludes that these events have created a great deal of confusion and uncertainty in this election.

THEREFORE, THE BOARD HAS DETERMINED THAT, BASED ON THESE CIRCUMSTANCES, THE ELECTION MUST BE SET ASIDE AND ORDERS A RE-RUN ELECTION. ALL BALLOTS ALREADY MAILED AND RECEIVED BY THE BOARD ARE VOID. ALL ORANGE NMB BALLOTS MAILED ON JANUARY 13, 2000, ARE VOID.

The Board will conduct a re-run election with new mailing and count dates as follows:

Ballots Mailed: March 22, 2000

Ballots Counted: April 26, 2000

A new sample ballot and Notice of Election will be sent to the Carrier by the Board on March 15, 2000. It will posted on bulletin boards beside this Notice.