On February 1, 2001, the Express One Crewmembers Association (EOCA) filed an application with the National Mediation Board (Board) pursuant to 45 U.S.C. § 152, alleging a representation dispute among Flight Deck Crew Members of Express One International, Inc. (Express One or Carrier). At the time the application was filed, these employees were represented by the International Brotherhood of Teamsters (IBT).

The Board assigned Benetta M. Mansfield to investigate. On February 12, 2001, the IBT filed an initial position statement requesting that the Board dismiss the application. The IBT claimed that the two-year certification bar established pursuant to 29 C.F.R. § 1206.4(a) should be tolled due to Express One's refusal to bargain and the Carrier's judicial challenge to the IBT's August 6, 1998, certification in Express One International, 25 NMB 420 (1998).

For the reasons set forth below, the Board dismisses the application. The two-year certification bar set forth in 29 C.F.R. § 1206.4(a) is tolled and commences on July 6, 2000.

PROCEDURAL BACKGROUND

EOCA filed an application on February 1, 2001, seeking to represent the Carrier's Flight Deck Crew Members. On February 12, 2001, the IBT asked the Board to dismiss EOCA's application. On February 14, 2001, the Investigator advised the Carrier and EOCA that they had until February 22, 2001, to respond to the IBT's position and the IBT had until March 1, 2001, to reply.

On February 15, 2001, Express One filed a "brief" position statement with the Board reserving "the right to supplement this position statement in response to [the Investigator's] letter dated February 14, 2001, which established a briefing schedule on the certification-bar issue."

EOCA requested and received an extension to file its statement. On February 28, 2001, EOCA filed its position opposing the IBT's request and asked the Board to process the application. Also on February 28, 2001, the Carrier filed a position statement opposing the IBT's request.

On March 6, 2001, the IBT replied to EOCA and the Carrier. On March 9, 2001, Express One filed a response to the IBT's March 6 submission. On March 12, 2001, the IBT sent a letter to the Investigator denying the assertions in the Carrier's March 9 "unauthorized" submission and requesting "that the Board not consider the submission . . . ."

On March 16, 2001, the EOCA requested a 20-day extension to submit affidavits addressing the misrepresentation issue which EOCA described as "critical to our case." On March 19, 2001, the IBT sent a letter to the Investigator objecting to EOCA's request, denying the EOCA's allegations, and stating that the allegations were irrelevant.

On March 21, 2001, the Investigator responded to EOCA and the Carrier stating:

The EOCA has already raised and addressed this issue in its February 28, 2001, position statement. To prepare that submission, the EOCA requested and received a 10-day extension from the Board. The EOCA could have submitted affidavits at that time and did not. In addition, the EOCA's "misrepresentation issue" allegations concern claims about the IBT's conduct following the Board's August 6, 1998, IBT certification. . . . These allegations were not timely raised following that certification.

The Carrier's, the EOCA's and the IBT's position statements constitute a complete record. In addition, the Board's Representation Manual Section 2.4 stresses the necessity for timely investigations. Therefore, the EOCA request . . . is denied. Finally, the Carrier's March 9, 2001, submission was not requested by the Board and will not be considered.

During the investigation in this case, the IBT supplied the Board with a copy of the District Court's Memorandum Opinion and Order granting summary judgment to the IBT; and evidence of the Carrier's refusal to bargain. The Board provided time for EOCA and the Carrier to present evidence in support of their allegations. Neither EOCA nor the Carrier supplied evidence to the Investigator.

ISSUE

Should the two-year certification bar in 29 C.F.R. §1206.4(a) be tolled? If so, when should the bar commence?

CONTENTIONS

IBT

The Board certified the IBT as the representative of the Carrier's Flight Deck Crew Members on August 6, 1998. Express One International, above. The IBT contends that following Board certification, Express One refused to bargain and filed a lawsuit in the United States District Court for the Northern District of Texas against the Board and the IBT. Express One International, Inc. v. National Mediation Board and International Brotherhood of Teamsters, 3-98-CV-2198-M (N.D. Tex. 1998). The IBT further states that during the pendency of the lawsuit, Express One refused to bargain.

The IBT asserts that on June 7, 2000, as part of an order granting summary judgment to the Board and the IBT, the district court directed Express One to bargain in good faith with the IBT. The IBT states that rather than bargain, Express One filed a motion for a stay pending appeal of the district court's order. On July 6, 2000, the district court denied the motion for a stay and Express One began to bargain with the IBT.

The IBT states that under the Board's decision in Virgin Atlantic Airways, 21 NMB 183 (1994), the two-year certification bar established by 29 C.F.R. § 1206.4(a) is tolled and deemed to run from the date of the district court's June 7, 2000, order granting summary judgment "or from any later date on which 'the courts act with finality to compel such bargaining.'" The IBT argues that the interest in stable labor relations underlying § 1206.4(a) requires that the bar be tolled. Finally, the IBT argues that the Carrier should not be permitted to "capitalize on its unlawful conduct" through a new certification election.

EOCA

EOCA requests that the Board process its application and authorize an election. EOCA asserts that the bar is not a total bar, citing the following example:

It would be inconceivable that the bar would be used in a situation where, after the Board has certified a labor organization to represent a group of employees, the leaders of that organization then become members of the communist party. If the employees then make application for investigation, would the Board dismiss based on the two-year certification bar, when the communist party membership of the union violates federal law, 29 U.S.C. § 504(a)?

EOCA cites three reasons that the IBT's request should not be granted. First, EOCA contends that the Board conducted a "minimalistic investigation" of the Carrier's interference allegations before issuing the certification of the IBT in the original case. Express One, 25 NMB 420 (1998).

Second, the EOCA contends that the IBT has engaged in threats and spread misleading information. EOCA asserts that the IBT in its original campaign assured the Carrier's employees that the employees would not be assessed dues until a contract was ratified. EOCA asserts that once the IBT was certified, the IBT local union stated that it would immediately require all flight deck crew members to pay IBT dues and that the IBT "would personally see to it that the carrier would no longer employ members of the EOCA, not in good standing with the IBT after contract ratification." EOCA claims this information was misleading. In addition, EOCA claims that the IBT misled approximately 30 flight deck crew members into paying dues by promising them "preferential interviews" with Federal Express.

Third, EOCA contends that the IBT did not and does not have the support of the majority of the employees. EOCA states that in the 1998 election, 81 Brussels, Belgium, based crew members were ineligible to vote. The Brussels contract has been terminated and the former Brussels based employees are part of the craft or class. EOCA argues this change doubled the size of the original craft or class.

Express One

Express One also requests that the Board process the application, investigate the dispute and authorize an election. Express One argues that the "competing equities in this unique situation weigh strongly in favor of the Board authorizing an election."

Express One argues that there are legitimate concerns about whether the purposes of the Act "were properly effectuated during the previous representation election." Moreover, Express One argues, there is no doubt that a majority of current flight deck crewmembers do not wish to be IBT-represented.

Express One also states that the Board needs to consider the serious misrepresentations and coercive conduct of the IBT alleged in EOCA's position statement. The Carrier states, in the alternative, that the Board should conduct a field investigation of the allegations raised by EOCA, or provide EOCA with additional time to prepare affidavits to support its allegations.

FINDINGS OF LAW

Determination of the issue in this case is governed by the Act, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:

I.

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

II.

The IBT and the EOCA are labor organizations and/or representatives 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 to designate who may participate as eligible voters in the event an election is required.

FINDINGS OF FACT

On April 6, 1998, the IBT filed an application with the Board concerning a representation dispute among the Carrier's Flight Deck Crew Members. The Board found a dispute existed. A count of ballots took place on June 29, 1998. Prior to the count, Express One advised the Board that an electronic message had been posted on America Online's (AOL) Aviation Bulletin Board under the screen name "ExpresONE". The message read:

For you vocal union supporters, I'd be watching your backs. We know who most of you are who are posting your anti-company propaganda. We're not stupid.

Express One asked the Board to take appropriate action with AOL to determine who was responsible for the posting. Express One promptly issued a notice to its pilots stating that it was not responsible for the posting. After the election count, in which a majority of the craft or class selected the IBT, Express One filed allegations of interference based on the AOL posting. Express One did not claim any other allegations of interference.

In Express One, above, the Board found that Express One failed to establish a prima facie case of election interference because the bulletin board posting was a "single, isolated incident" which the Carrier immediately disavowed. Therefore, the Board found no basis for further investigation and certified the IBT as the representative of the Flight Deck Crew Members on August 6, 1998.

Express One refused to negotiate with the IBT and filed a complaint in United States District Court for the Northern District of Texas seeking to overturn the certification. The IBT later filed another complaint, seeking an order compelling the Carrier to bargain. The two actions were consolidated by the district court. After discovery, briefing, and a hearing, on June 7, 2000, the district court granted the Board's motion for summary judgment and granted the IBT's motion for an injunction requiring Express One to negotiate with the IBT. The Court stated:

The law requires Express One engage in bargaining with the IBT, the elected representative of Express One's flight deck crew members. United Airlines, Inc. v. Airline Division, International Brotherhood of Teamsters, 874 F.2d 110, 114-15 (2d Cir. 1989) citing 45 U.S.C. § 152, Ninth. The NMB certified the IBT as the elected representative of Express One's pilots, and Express One must engage in bargaining with the IBT.

Express One International, Inc. v. National Mediation Board, International Brotherhood of Teamsters, Civil Action No. 3-98-CV-2198-M, Slip op. at 8 (N.D. Tex. 1998).

On July 5, 2000, Express One filed a motion for a stay pending appeal of the district court's order. The district court denied that motion on July 6, 2000. Subsequently, Express One began bargaining with the IBT.

DISCUSSION

45 U.S.C. § 152, First, states:

It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise, in order to avoid any interruption to commerce . . . .

Similarly, 45 U.S.C. § 152, Ninth, states that the carrier shall "treat with" the certified representative "upon receipt of such certification."

In order to enhance labor stability "by providing labor and management with a reasonable period of time to establish a collective bargaining relationship," the Board adopted the certification bar rule. See Jet America, 11 NMB 173 (1984). Therefore, at 29 C.F.R. § 1206.4, it states:

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:

(a) For a period of two (2) years from the date of a certification covering the same craft or class of employees on the same carrier.

In Virgin Atlantic Airways, 21 NMB 183 (1994), the Board considered facts similar to those presented here. There, the carrier filed a civil action to set aside the Board's certification. The IBT filed a counterclaim seeking enforcement of the Board's certification. On February 20, 1992, the U.S. Court of Appeals for the Second Circuit found that Virgin Atlantic's refusal to bargain violated the carrier's absolute duty under the RLA and the IBT was entitled to an injunction directing Virgin Atlantic to bargain and directed the district court to implement the order. Virgin Atlantic Airways, Ltd. v. NMB, 956 F.2d 1245 (2d Cir. 1992).

When another organization filed an application to represent the same group of employees on Virgin Atlantic in 1992, the IBT requested the application be dismissed. The Board dismissed the application and found that the certification bar commenced on the date the U.S. district court implemented the court of appeals' order. The Board stated:

[T]he Board finds that failure to treat the [other organization's] application as subject to the certification bar would undermine the statutory certification process, deprive the certified representative of a reasonable opportunity for collective bargaining, and permit the carrier's refusal to bargain to improperly influence the electorate if an election were held at this time. Moreover, acceptance of the application . . . would be in derogation of the Court of Appeal's findings.

Virgin Atlantic, 21 NMB 183, 198 (1994).

Neither EOCA nor Express One dispute the facts presented here. Instead each asserts that the bar should not be tolled because: 1) the Board's investigation of the prior interference allegations was not properly conducted; 2) the IBT does not have the support of the majority of the Flight Deck Crew Members; and 3) the IBT has engaged in serious misrepresentations and coercive conduct since the IBT's original certification.

The first claim is moot. Not only did the Board dismiss the interference case and certify the IBT, but also the district court upheld the IBT's certification.

As to the alleged loss of the IBT's majority support, Carrier actions including the refusal to bargain rendered the Board's certification ineffectual. These actions also deprived the IBT of the statutory right to bargain and may improperly have influenced the electorate. As the Board stated in Virgin Atlantic:

Without a policy that protects the status of the NMB's certification and the certified representative's bargaining authority a carrier conceivably could avoid its statutory duty to bargain altogether, thus rendering the Board's certification, and possibly any judicial bargaining orders, ineffectual.

Virgin Atlantic, above at 198.

The allegations of IBT post-certification misconduct and coercive behavior are untimely. Moreover, the way in which an organization treats dues is an internal union matter. Finally, both the Carrier and EOCA misinterpret the "except in unusual or extraordinary circumstances" standard in 29 C.F.R. § 1206.4. That standard establishes the exceptional circumstances in which the bar ought not to apply - not the circumstances when the bar applies.

The district court ordered Express One to bargain with the IBT on June 7, 2000. Express One filed a motion for a stay pending appeal of the district court's order. The district court denied that motion on July 6, 2000. Subsequent to the court's July 6 Order, Express One began bargaining with the IBT.

Under similar circumstances, the Board has held that the certification bar is tolled:

Against this background, the Board finds that failure to treat the VAAEA's application as subject to the certification bar would undermine the statutory certification process, deprive the certified representative of a reasonable opportunity for collective bargaining, and permit the carrier's refusal to bargain to improperly influence the electorate if an election were to be held at this time.

Id.

The Board concludes that the two-year certification bar commenced on July 6, 2000, the date the district court denied Express One's motion to stay.

CONCLUSION

The EOCA's application is dismissed pursuant to the two-year certification bar in 29 C.F.R. § 1206.4(a).

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable
Chief of Staff

Copies to:

Jay Counts, Esq.
Derek Braziel, Esq.
Stephen R. Thompkins, Esq.
Mr. Gary Walsh
Mr. Chuck Green
Mr. Pete Bitzker
Mr. Ray Benning
Mr. Don Treichler
William R. Wilder, Esq.