27 NMB No. 56

March 17, 2000

Steven Sawyer, Esq.

Assistant General Counsel

Mr. Joel P. Dant, Director-People Services

United Air Lines, Inc.

EXO-LD

P.O. Box 66100

Chicago, IL 60666

Gary S. Kaplan, Esq.

Seyfarth, Shaw, Fairweather & Geraldson

55 East Monroe, Suite 4200

Chicago, IL 60603-5803

Mr. R. Thomas Buffenbarger, Int'l President

Robert J. Roach, Jr., General Vice President

David Neigus, Esq.

International Association of Machinists &

Aerospace Workers, AFL-CIO

9000 Machinists Place

Upper Marlboro, MD 20772-2687

Re: NMB Case No. R-6710

United Airlines, Inc.

Gentlemen:

This determination addresses the February 28, 2000, Motion for Reconsideration filed by United Airlines, Inc. (United or Carrier). United seeks reconsideration of the National Mediation Board's (Board) February 23, 2000, decision which set aside an election before the ballots were counted, and ordered a re-run election. In connection with the re-run election, the Board ordered United to "provide an additional set of address labels for the entire List of Eligible Voters which the Board will provide to the [International Association of Machinists and Aerospace Workers (IAM)]." United Airlines, Inc., 27 NMB 221 (2000). For the reasons set forth below, the motion is denied.

I.

Procedural Background

In United Airlines, Inc., supra, the Board ordered a re-run mail ballot election after setting aside an initial election, without counting the ballots. The Board based its decision to rerun the election on voter confusion. While the facts surrounding the Board's decision are discussed more fully in United Airlines, Inc., supra, the principal circumstance which triggered the need for a re-run election was United's identification of 500 additional employees who were eligible to vote in the election.

After giving both the Carrier and the IAM an opportunity to comment on what actions, if any, the Board should take to address the addition of these new voters,⁽¹⁾ the Board ordered a re-run election and further ordered United to provide the Board with a set of home address labels which the Board would provide to the IAM.

II.

Positions of United and IAM

United asks the Board to amend its order to the extent that it "purports to state an intention to provide the IAM with home addresses of employees in the craft or class." United argues that the Board "relief" was never sought by the IAM. United also argues that it did not have the opportunity to address the appropriateness of providing address labels to the IAM, a proposition which United vehemently opposes. United states that the order is, therefore, a violation of its due process. Finally, the Carrier argues that the record is devoid of support for the provision of home addresses to the IAM because there is no finding of Carrier interference and the action violates the privacy rights of United's employees. As to the timeliness of United's motion, United states that its motion, which was dated February 28, 2000, is timely because the Board's order was ambiguous, and it did not understand that it was the Board's intention to provide labels to the IAM until United's Attorney, Steven Sawyer, spoke with the Board Investigator on Monday, February 28, 2000.

The IAM argues that United's motion is untimely. Moreover, the IAM states that the Board's order is not ambiguous. The IAM states that "the Order specifically calls for another set of labels in addition to those that United is required to supply for mailing ballots, and then sets forth where this additional set will go . . . ." The IAM also states that the Board's decision to provide it with address labels is both an appropriate response to the particular circumstances in this case and an appropriate exercise of the Board's broad discretion.

III.

Discussion

A. Timeliness

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. (Emphasis supplied)

The Board finds that United's motion is untimely. United received the Board's decision on February 23, 2000 and did not file its motion until 4:58 PM on February 28, 2000. On its face, the Carrier's motion is untimely, because the motion should have been filed before close of business on February 25, 2000.

Assuming, without deciding, that an alleged ambiguity in an order provides an acceptable reason for tolling a filing period, United's argument regarding timeliness is not persuasive for at least two reasons. First, the portion of the order which United challenges is crystal clear. In relevant part, the Board's decision directed the Carrier to "provide an additional set of address labels for the entire List of Eligible Voters which the Board will provide to the IAM." It is difficult to conceive the ambiguity perceived by United in this order.

Second, the Carrier did not even contact the Board to raise the alleged "ambiguity" until more than two days after receipt of the decision. United received the Board's decision on February 23, 2000, and did not attempt to contact the Investigator until after 5:00 p.m., on Friday, February 25, 2000. Thus, United's claim was untimely before it even contacted the Board about the alleged ambiguity.

Accordingly, the Board finds no persuasive reason for concluding that United filed a timely motion for reconsideration.

B. Merits

Even assuming, arguendo, the Carrier's motion was timely, the motion does not provide the extraordinary circumstances required by the Representation Manual for the Board to grant the relief requested by a motion for reconsideration.

The Board grants relief upon motions for reconsideration only in very limited circumstances. As the Board stated in Virgin Atlantic Airways, 21 NMB 183, 186 (1994),

The Board recognizes the vital importance of the consistency and stability of the law as embodied in . . . NMB determinations . . . .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.

Under 45 U.S.C. § 152, Ninth, the Board has broad discretion in the manner and methods it uses to determine the free choice of representatives by employees. The Board has often taken additional steps to ensure free choice when it found voter confusion. See USAir, Inc., 21 NMB 201 (1994) (Providing the organization with the home addresses of all eligible voters on furlough.); Trans World Airlines, Inc., 8 NMB 298 (1981) (Rerun election with new list due to inadequate initial list from carrier.)

When measured against the circumstances of this case, an order limited to providing address labels to an organization is hardly a radical means or method of insuring employee free choice and assuring that the laboratory conditions necessary for a fair election are maintained.⁽²⁾ Those circumstances include the late addition of a significant number of voters to the eligibility list; the impoundment of the ballots in the original election; the delay in the original count date and subsequent set aside of the original election without counting the ballots; the Board order of a second election with a second ballot to occur within a few months of the first election; and the voter confusion likely to result from this unusual sequence of events.

The Board's decision to provide the IAM with home address labels so that the IAM has a fair opportunity to address the voter confusion flowing from these circumstances is necessary to assure a fair election with a level playing field. The Board's order is required to accomplish its duty under Section 2, Ninth, to "insure the choice of representative" and to allow both the Carrier and the Organization an equal opportunity to address the unusual circumstances which led the Board to conduct two ballot mailings within a short period of time.

While United argues that it committed no election interference which warranted the Board providing the IAM with a home address list, the argument misses the point. The Board's order is not premised on Carrier misconduct. Instead, it is driven by the voter confusion resulting from the highly unusual events leading the Board to set aside the original election, without ever counting the ballots, and conducting a second election, close on the heels of the first.

United's argument that the Board is barred from ordering home addresses because the IAM did not request the addresses misunderstands the Board's decision. The Board is ordering the Carrier to provide home addresses because of its conclusion this step is required by the Board's statutory duty to "insure the choice of representative," to assure that laboratory conditions are met for the second election, and to level the playing field.

The Carrier's "due process" argument is moot. Notwithstanding the Board's finding that United's motion to reconsider was untimely, it has considered the Carrier's argument on the merits and rejected it for the reasons noted above.

Finally, the privacy arguments raised by the Carrier cannot be used by United to evade a legitimate order of the Board. The Board will, however, as part of its order, direct the IAM to maintain the confidentiality of the address list and use it for no purpose other than to communicate with the eligible voters regarding this representation matter.

IV.

CONCLUSION AND ORDER

The Board has considered the submissions by United and the IAM. The Board finds that the Carrier's motion is untimely. Accordingly, the motion is denied. Even assuming arguendo the motion was timely, United has not made the requisite showing for the Board to grant the relief requested. United is ORDERED to provide the additional set of address labels to the Board by 4:00 p.m., EST, on Tuesday, March 21, 2000. The IAM is ORDERED to maintain the confidentially of the address list and use it for no purpose other than to communicate with the eligible voters regarding this representation matter. /P>

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable
Chief of Staff

1. In its response, the IAM alleged, among other things, interference by the Carrier. The Board made no determination of the IAM's claim of interference beyond the finding that the allegations were not of such magnitude as to require a pre-count investigation of the allegations.

2. The procedure of providing the organization with employee home addresses is regularly followed by the National Labor Relations Board. See Excelsior Underwear, 156 NLRB 1236 (1966).