26 NMB No. 21
Daniel M. Katz, Esq.
Counsel for Communications Workers of America
Katz & Ranzman
1015 18th Street, N.W., Suite 801
Washington, DC 20036
Harry A. Rissetto, Esq.
Sheldon M. Kline, Esq.
Counsel for American Airlines, Inc.
Morgan, Lewis & Bockius LLP
1800 M Street, N.W.
Washington, DC 20036-5869
Re: NMB Case No. R-6635
Gentlemen:
This determination addresses the December 3, 1998, letter from the Communications Workers of America (CWA) in which the Organization requests the Board to extend the voting period in the election among American Airlines' Passenger Service Employees. For the reasons set forth below, the Organization's request is denied.
I.
A. On October 8, 1998, CWA filed an application seeking to represent the craft or class of Passenger Service Employees on American Airlines. The Board found a dispute to exist on October 19, 1998, and authorized an all mail ballot election. Ballots were mailed November 12, 1998, and the count is scheduled for December 15, 1998. There are approximately 14,000 employees in the craft or class.
On November 30, 1998, CWA sent a letter to the Board maintaining that based upon the Organization's contact with "thousands" of employees it had learned that as of that time, "twenty percent are still waiting for the U.S. Postal Service to deliver their ballots." The Organization further asserted that "[m]any of these workers have requested replacement ballots but have not yet received these . . . ."
American responded on December 1, 1998. The Carrier stated its position that CWA's estimate was "grossly inflated." According to the Carrier, the addresses it provided the Board for the election are those which the Carrier uses for official company correspondence. American also referred to the Board's "time-tested procedures . . . [which] ordinarily result in the employee receiving a ballot in a timely fashion."
B. On December 3, 1998, CWA filed its request to postpone the count by one week. According to the Organization, as of that date, approximately ten percent of the electorate had not received their ballots. The Organization cited Section 12.301 of the Board's Representation Manual in support of its request.
The Carrier responded on December 4, 1998, that the Board should reject CWA's request. American argues that Section 12.301 requires "substantive evidence" and "extraordinary circumstances" to support requests to postpone ballot counts, and that the Organization has provided neither. In addition, the Carrier asserts that the Board's Notice of Election, posted throughout American's system, informs employees of procedures in the event they do not receive their ballots. The Carrier also notes that CWA had agreed to the election schedule, as referenced in the Investigator's letter of October 19, 1998, establishing the election period.
II.
A. Section 12.301 of the Board's Representation Manual specifically addresses requests to impound the ballots, not to extend the election period. However, the Board concludes, by analogy, that the considerations reflected by Section 12.301 are the principles applicable to CWA's request.(1) Accordingly, the issue before the Board in this case is whether CWA has provided "substantive evidence" of "extraordinary circumstances" which would justify extending the election period.
In the instant matter, CWA asserts that approximately 10% of the eligible employees have not received their ballots. The Organization asserted it had ascertained this information through telephone contacts with eligible employees, but did not provide any substantive evidence in support of its assertion. The Board's investigation has established, however, as of December 8, 1998, the cut-off for processing returns, that 350 ballots had been returned by the Postal Service as undeliverable. This represents approximately 2.5% of the electorate. Of the 350 ballots returned as undeliverable, 199 have been re-mailed with corrected addresses. The Carrier was unable to ascertain different addresses for 161 employees, which is approximately 1.2% of the craft or class. The names of any employees whose ballots have been returned as undeliverable and not re-mailed will be removed from the list of eligible voters, pursuant to Section 12.206-2 of the Board's Representation Manual.
B. The Carrier and the Organization were provided copies of the Board's "Notice of Election" more than one week in advance of the ballot mailing. The Carrier was required to post this "Notice" throughout its system. The "Notice" provides, in part:
SHOULD ANY ELIGIBLE VOTER FAIL TO RECEIVE A BALLOT WITHIN A REASONABLE TIME AFTER THE DATE OF THE MAILING OF THE BALLOTS, SUCH VOTER MAY REQUEST A DUPLICATE BALLOT FROM THE NATIONAL MEDIATION BOARD. This request must be signed by the eligible individual and forwarded to THE NATIONAL MEDIATION BOARD, WASHINGTON, D.C. 20572. NO REQUEST WILL BE HONORED IF RECEIVED AFTER December 8, 1998
As of December 8, 1998, the Board had received and processed 388 duplicate ballot requests from eligible voters, which is approximately 2.8% of the electorate. All duplicate ballots sent in response to requests received between December 2, 1998, and December 8, 1998, were mailed via express mail next-day delivery.(2) All ballots returned as undeliverable between December 2, 1998, and December 8, 1998, were also re-mailed using express mail next day delivery service.
Based upon its investigation, the Board finds insufficient substantive evidence to support a finding of "extraordinary circumstances" to justify extending the ballot count. The count will take place as scheduled at 11:00 a.m., Tuesday, December 15, 1998.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
1. With one limited exception, not applicable here, Trans World Airlines, 8 NMB 298 (1981), there appear to be virtually no Board decisions on point.
2. Duplicate ballot requests processed Saturday December 5, 1998, were sent express mail for Monday, December 7, 1998, delivery.
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