November 21, 2001
Lance A. Bowling, Esq.
Anita Lechner Bosch, Esq.
E. Frederick Preis, Jr., Esq.
Counsel for Industrial Helicopters, Inc.
643 Magazine Street
New Orleans, LA 70130
Melvin S. Schwarzwald, Esq.
Schwarzwald & Rock
616 Bond Court Bldg.
1300 E. 9th St.
Mr. Kevin Kistler
Director, Organizing & Field Services
265 W. 14th St., 6th Floor
New York, NY 10011
Mr. William C. Sykes
110 Lincoln St.
Patterson, LA 70392-5826
Re: NMB Case No. R-6846
Industrial Helicopters, Inc./OPEIU
Gentlemen and Ms. Bosch:
This determination addresses the appeal filed by Industrial Helicopters, Inc. (Carrier) of Investigator Benetta M. Mansfield's November 9, 2001, eligibility ruling concerning Scott Rehm.
On October 1, 2001, the Office and Professional Employees International Union (Organization or OPEIU) filed an application to represent Flight Deck Crew Members on the Carrier. On October 19, 2001, and with a revision on October 22, 2001, the Carrier supplied the Board with a List of Potential Eligible Voters. The Board authorized an election on October 23, 2001. On October 26, 2001, the Board notified the participants that challenges and objections were due November 2, 2001, and responses to the challenges and objections were due on November 9, 2001.
On November 2, 2001, the Carrier challenged the eligibility of Rehm due to his termination by the Carrier. According to the Carrier, Rehm was terminated on October 30, 2001, for improperly charging the Carrier for per-diem food allowances for the past two years. The Carrier stated that pursuant to the Board's Representation Manual (Manual) Section 5.304, Rehm was ineligible to vote "unless an action for reinstatement has been filed before either a court or government agency of competent jurisdiction."
On November 8, 2001, the OPEIU responded. The OPEIU enclosed a time-stamped copy of a lawsuit filed on behalf of Rehm in the United States District Court for the Southern District of Texas. The lawsuit sought Rehm's reinstatement to employment with the Carrier. Therefore, the Organization contended that Rehm remained eligible to vote pursuant to Manual Section 5.304.
Rehm was sent a challenged ballot on November 9, 2001.
In the eligibility ruling on November 9, 2001, Investigator Mansfield ruled that Rehm was eligible pursuant to the Manual because Rehm had appealed the discharge to a court of competent jurisdiction and no final resolution of that matter had been reached. On November 14, 2001, the Carrier appealed the Investigator's ruling. The OPEIU responded to the appeal on November 16, 2001.
The Carrier's appeal of the Investigator's ruling states,
Rehm's termination was entirely justified based upon his own admission that he had defrauded the Company of per diem food allowance funds for nearly two years. There is absolutely no evidence that the decision to terminate Rehm was tainted by union animus or a desire to otherwise interfere with the . . . right to union representation.
The Carrier referred to the federal lawsuit as meritless.
The OPEIU responded that the Investigator's ruling should be upheld. The Organization asserts that the Carrier's appeal "provides no legitimate basis for challenging the Investigator's decision. The Carrier merely sets forth its self-serving contention that it believes Rehm's termination was justified."
45 U.S.C. § 152, Ninth, provides, in part, as follows:
[I]n the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election . . . .
The election "rules" established by the Board are set forth in 29 C.F.R. §§ 1206.1 through 1206.8, the Representation Manual, and Board Determinations. Section 1206.6 of the Board's Rules provides:
Dismissed employees whose requests for reinstatement account of wrongful dismissal are pending before proper authorities, which includes the National Railroad Adjustment Board or other appropriate adjustment board, are eligible to participate in elections among the craft or class of employees in which they are employed at time of dismissal. This does not include dismissed employees whose guilt has been determined, and who are seeking reinstatement on a leniency basis.
Section 1206.7 provides:
The Rules and regulations in this part shall be liberally construed to effectuate the purposes and provisions of the Act.
Manual Section 5.304 states:
Ordinarily, discharged or terminated employees shall be ineligible unless the discharge is being appealed through the applicable grievance procedure or an action for reinstatement has been filed before either a court or a government agency of competent jurisdiction. An individual shall not be considered eligible if the grievance or court action has been finally acted upon and the discharge has been upheld prior to the count of ballots (see NMB Rules, Part 1206.6).
The Board has consistently applied the above provisions to hold that terminated employees are eligible if their claims for reinstatement are still pending as of the scheduled date of the count. Virgin Atlantic Airways, Ltd. v. National Mediation Board, 956 F.2d 1245 (2d Cir.1992), cert. denied, 506 U.S. 820 (1992); Air Canada v. National Mediation Board, 478 F. Supp. 615 (S.D.N.Y. 1979); America West Airlines, Inc., 23 NMB 174 (1996); Emery Air Charter, 18 NMB 387 (1994); Virgin Atlantic Airways, 15 NMB 179 (1988).
The Carrier's appeal cites no precedent for its position. The Board will apply the provisions cited above, which deem Rehm eligible.
The record establishes that there is no basis for the Board to overrule the Investigator's ruling that Rehm is eligible. Therefore, the Carrier's appeal is denied. The count will take place as scheduled at 2 p.m., December 11, 2001.
By direction of NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff