27 NMB No. 96

August 3, 2000

Fred F. Holroyd, Esq.

Counsel for Executive Air Terminal, Inc.

Holroyd, Yost & Evans

209 West Washington Street

Charleston, WV 25302

Mr. R. Thomas Buffenbarger, Int'l President

Mr. Robert Roach, 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-6752

Executive Air Terminal, Inc.

Gentlemen:

This determination addresses Executive Air Terminal, Inc.'s (Executive Air or Carrier) appeal of Investigator Eileen M. Hennessey's determination that Gary E. Dailey is eligible to vote in the election. For the reasons set forth below, the Carrier's appeal is denied.

On May 26, 2000, the International Association of Machinists and Aerospace Workers (IAM) filed an application alleging a representation dispute among the Mechanics and Related Employees of Executive Air.

On June 26, 2000, following an investigation, the Board authorized an election.

On July 5, 2000, the IAM filed challenges and objections to the Potential List of Eligible Voters. In part, the IAM alleged that Dailey should be included on the list of eligible voters because he is currently appealing his discharge. In support of this contention the IAM provided a copy of letter from Dailey's attorney to the Carrier demanding his immediate reinstatement. On July 12, 2000, Dailey, was mailed a challenged ballot.

The Carrier's response was received by the Board on July 12, 2000. The Carrier stated that Dailey was discharged on June 5, 2000, because he did not have a valid driver's license, a condition of his employment. The Carrier provided copies of a memorandum from Dailey's supervisor, a decision from the Deputy of Unemployment Compensation Division denying Dailey's claim for benefits and a June 7, 2000, letter from the Carrier's attorney denying Dailey reinstatement.

On July 21, 2000, Board Representative Hennessey, ruled Dailey was eligible based on Section 5.304 of the Board's Representation Manual. On July 24, 2000, Executive Air appealed the ruling, and filed a supplement to this appeal on July 27, 2000. The Carrier alleges that Dailey was discharged because he did not have a valid driver's license, which was a condition of employment; that Dailey's discharge was unrelated to his union activity; that the Carrier has no internal appeal procedure; and that no action for reinstatement has been filed before a court or government agency of competent jurisdiction. The Carrier supplemented its appeal on July 27, 2000, and attached a decision from the Board of Review, West Virginia, Bureau of Employment Programs, denying Dailey's appeal of the state's initial finding that he did not qualify for unemployment compensation.

On July 28, 2000, IAM responded that the Carrier's appeal was without merit and procedurally defective. First, the IAM alleges that Dailey filed an action in the Circuit court of Kanawha County, West Virginia, seeking reinstatement on July 28, 2000. Second, the IAM states that the Carrier's appeal is procedurally defective because it did not meet the Board's simultaneous service requirements set forth in Section 1.302 of the Board's Representation Manual (Manual).

Dailey has a law suit pending in which he claims that he was wrongfully terminated and has requested reinstatement. Thus, pursuant to Section 5.304 of the Manual, Board Representative Hennessey's ruling is correct.

In addition, the Carrier's appeal is procedurally deficient Section 1.302 of the Manual provides:

[Submissions] shall be simultaneously served on all other representatives by the same method as used for service on the NMB, if available, or if unavailable, by a substantially similar method which results in effectively identical time of receipt. ... Submissions not in compliance with the foregoing simultaneous service provisions will not be considered except in extraordinary circumstances.

In correspondence from the Board to the Carrier, dated May 30, June 14, and June 27, 2000, the Carrier was informed that all submissions to the Board must comply with the simultaneous service requirements set forth in Section 1.302 of the Manual. The Carrier filed its appeal and supplement with the Board by facsimile and by express mail. The Carrier sent these submissions to the IAM by regular United States mail. The Carrier's service of its appeal and supplement to the appeal in this matter did not comply with the Board's simultaneous service requirements. Therefore, the appeal will not be considered.

The Carrier's appeal is denied. The count will take place on August 9, 2000, as scheduled.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff