# Petition for Writ of Certiorari — Virgin Atlantic Airways, Ltd. v. National Mediation Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0697%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 820 ## Text . . ana Buprome eI 0) J FILED er MAY 13 1992 Ogaas Of pik CLE IN THE Supreme Court of the United States OCTOBER TERM, 1991 >_> VIRGIN ATLANTIC AIRWAYS, LTD., MARIO. BATISTA, LAWRENCE FRENCH, JULIO ROSA, JOSE MARCELLO GAR- CIA, JOHN AQUINO, and EDGAR LAMBERTUS, Petitioners, —_vVv.— NATIONAL MEDIATION BOARD, an agency of the United States of America, INTERNATIONAL BROTHERHOOD OF TEAM- STERS, LOCAL 851, ANTHONY FARINA, individually and as president of Local 851, INTERNATIONAL BROTHERHOOD OF TEAMSTERS AIRLINE DIVISION, WILLIAM GENOEBSE, individually and as Director of Internationa] Brotherhood of Teamsters Airline Division, R no espondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT PETITION FOR A WRIT OF CERTIORARI MICHAEL DELIKAT Counsel of Record JILL L. ROSENBERG ORRICK, HERRINGTON & SUTCLIFFE 599 Lexington Avenue New York, New York 10022 (212) 326-8800 Attorneys for Petitioners i QUESTIONS PRESENTED 1. Whether, as the Court of Appeals for the Second Cir- cuit held, this Court’s decision in Switchmen’s Union v. National Mediation Bd. (‘‘Switchmen ’s’’), 320 U.S. 297 (1943), precludes all meaningful judicial review of actions by the National Mediation Board in the conduct of union representation elections under the Railway Labor Act (‘‘RLA’’)? 2. To the extent that Switchmen’s can be read to preclude all meaningful judicial review of a certification of a bar- gaining representative by the NMB, should Switchmen’s (a 4-3 decision whose majority opinion was written by Justice Douglas) be clarified or overruled? FF PARTIES The Petitioners are Virgin Atlantic Airways, Ltd. (‘‘Virgin Atlantic’’), a ‘‘common carrier by air’’ within the meaning of Title I] of the RLA, and Mario Batista, Lawrence French, Julio Rosa, Jose Marcello Garcia, John Aquino and Edgar Lambertus, six of Virgin Atlantic’s fleet service employees covered by the NMB certification. Virgin Atlantic’s parent company is Voyager Travel (Holdings) Ltd. (U.K.) and Vir- gin Atlantic has no affiliates or subsidiaries other than wholly owned subsidiaries. Respondent National Mediation Board (the ‘‘Board’’ or ‘*‘NMB’”’) is an independent agency in the executive branch of the United States government charged, among other duties, with the obligation to investigate representation disputes among employees of carriers subject to the RLA, and of mediating disputes over changes in agreements between such carriers and representatives of their employees. Respondents International Brotherhood of Teamsters, Local 851 and International Brotherhood of Teamsters Air- line Division (collectively referred to as ‘‘Teamsters’’ or the ‘‘Union’’) are the labor organizations certified by the NMB as the representative of the craft or class of Virgin Atlantic’s fleet service employees for purposes of collective bargaining under the RLA. Respondents Anthony Farina and William Genoese are officers of the Union. TABLE OF CONTENTS REASONS FOR GRANTING THE WRIT.......... I. Il. Ill. THE NMB’S ACTIONS HEREIN ARE SUB- JECT TO FULL JUDICIAL REVIEW BECAUSE ITS STATUTORY POWER AND JURISDICTION ARE AT ISSUE........... THE ROLE OF THE FEDERAL COURTS IN ENFORCING THE RLA DEPRIVED THE NMB OF ANY AUTHORITY TO IGNORE THE RULING OF THE FEDERAL COURT IN HODGES V. VIRGIN ATLAN- EEE OS IE een meee SWITCHMEN’S SHOULD BE CLARIFIED OR OVERRULED TO THE EXTENT IT PRECLUDES MEANINGFUL JUDICIAL REVIEW OF ALL ACTIONS OF THE NMB WITH RESPECT TO CERTIFICATION OF BARGAINING REPRESENTATIVES ....... er CS hay awh hin Sach 604040 vk a ees a Ke 14 19 iv APPENDICES Appendix A Opinion and Judgment of the U.S. Court of Appeals - & ge Pr re er ree Appendix B Judgment and Order of the U.S. District Court for the pe a es. ee Appendix C Certification of National Mediation Board........... Appendix D ee ee - IE ck Wie ke catweea bt dasexeeuns Appendix E Text of National Mediation Board Rules Involved.... Appendix F Affidavit of Michael Delikat in Support of Plaintiffs’ Motion for Summary Judgment, filed March 7, 1991 Declaration of Charles R. Barnes, Executive Director of the National Mediation Board, filed December 19, PE Sa CE Naa RRR Cee ERE MERRIER Rea PAGE la 25a 28a 30a 33a 37a a re ee TABLE OF AUTHORITIES Cases PAGE Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) 16 Air Canada v. National Mediation Bd., 478 F. Supp. See Getic: CPTI caicididdcacuwhees choos. 11 -. Airline Dispatchers Ass’n v. National Mediation Bd., ° 189 F.2d 685 (D.C. Cir.), cert. denied, 342 U.S. 849 SOPON Soh bv nnseeensaccut) sbRcuuadieeecee eee 9, 10 Airline Stewards and Stewardesses Ass’n v. Trans World Airlines, 173 F. Supp. 369 (S.D.N.Y. 1959), aff'd, 273 F.2d 69 (2d Cir.), cert. denied, 362 U.S. MPEP OE PE EEE PEE EE NOUN AN LR on aN e. 10 British Airways v. National Mediation Bd., 685 F.2d we ee Se Ss dss ca pes Geka ancaee ele 17 Brotherhood of Ry. and Steamship Clerks v. Associa- tion for the Benefit of Non-Contract Employees, 380 We: WP GHD 2 60 no6 a xuncae nude bese ae 7, = Chicago & Northwestern Ry. Co. v. United Transp. ton, 402 U.S. SPO (1971) o.oo cn cn ccenasssscecas 15 Decker v. Linea Aeropostal Venezolana, 258 F.2d 153 (eG. GR. TUE ose eck sccksaee cee eee 14 Delpro Co. v. National Mediation Bd., 509 F. Supp. TS GP. TGR. FOE ie is do Cidectubscks cele 10, 13 Delpro Co. v. Brotherhood Ry. Carmen, 519 F. Supp. 842 (D. Del. 1981), aff’d, 676 F.2d 960 (3d Cir.), cert. denied, 459 U.S. 989 (1982) ............. wm, 33, 35 Hodges et al. v. Virgin Atlantic Airways, 88 Civ. 1370 GDIN. Y. SMO kvenddabaenninadee eee 3, 14 vi PAGE International Ass’n of Machinists & Aerospace Work- ers v. Trans World Airlines, 839 F.2d 809 (D.C. Cir. 1987), cert. denied, 488 U.S. 820 (1988)........... 17 International Bhd. of Teamsters v. Brotherhood of Ry. and Steamship Clerks, 402 F.2d 196 (D.C. Cir.), cert. denied, 393 U.S. 848 (1968) ................. 17 International In-Flight Catering Co. v. National Media- tion Bd., SSS F.ad 7i2 Oth Cir. 1977). cccccceces 12 International Longshoremen’s Ass’n v. North Carolina Ports Authority, 463 F.2d 1 (4th Cir.), cert. denied, mR errr rere ee rye rrr ee 9, 13 Maas v. Frontier Airlines, 676 F. Supp. 224 (D. Colo. POUT x 0'0sbackeanncvesncsess ¢beerkeenreeeeeeeeee 14 Philippine Airlines v. National Mediation Bd., 430 F. Me i es ry ee ee 12 Switchmen’s Union v. National Mediation Bd., 320 Cie PF CEs ces cdchbabenseea keene ean eee passim United States v. Feaster, 410 F.2d 1354 (Sth Cir.), cert. Gente, Fe: Wa. Fle Ce a0 ces bn ekeaee ew 9, 13 Virgin Atlantic Airways v. National Mediation Bd., ew Bee 2s Ae. | Peni eee 2 Virgin Atlantic Airways v. National Mediation Bd., 15 Ps. ROE COO 6k eRhawkee when ke been cee 4 Virginian Ry. Co. v. System Federation No. 40, 300 Cha SAS CST ce wdc cu sckune bes teenies 14 WES Chapter, Flight Engineers’ Int’l Ass’n v. National Mediation Bd., 314 F.2d 234 (D.C. Cir. 1962)..... 14 a | Vii PAGE Statutes 8 ee | yr a 2 Railway Labor Act Section 1, Fifth, 45 U.S.C. § 151, Fifth........... 1] Section 2, Third, 45 U.S.C. § 152, Third.......... 14 Section 2, Fourth, 45 U.S.C. § 152, Fourth....11, 14, 15 Section 2, Ninth, 45 U.S.C. § 152, Ninth......... 11, 12 Rules NMB Rule 1206.06, 29 C.F.R. § 1206.6............. 3, 11 NMB Representation Manual, § 5.304............... 3, i2 Other Authorities Jaffe, The Right to Judicial Review, 71 Harv. L. Rev. MINS 04 44 Baw 64s uescccawieenaeeieeca ees 16, 17 Sunstein, Interpreting Statutes, 103 Harv. L. Rev. 405 eee eT ee eC eT Te eee eee rerr orn 17 IN THE Supreme Court of the United States OCTOBER TERM, 1991 No. —> VIRGIN ATLANTIC AIRWAYS, LTD., MARIO BATISTA, -° LAWRENCE FRENCH, JULIO ROSA, JOSE MARCELLO GARCIA, JOHN AQUINO, and EDGAR LAMBERTUS, Petitioners, —_—vV— NATIONAL MEDIATION BOARD, an agency of the United States of America, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 851, ANTHONY FARINA, individually and as president of Local 851, INTERNATIONAL BROTH. ERHOOD OF TEAMSTERS AIRLINE DIVISION, WILLIAM GENOESE, individually and as Director of Internationa] Brotherhood of Teamsters Airline Division, Respondents. FRANK A. ROSENFELD, Department of Jus- tice, Washington, D.C. (Stuart M. Gerson, Assistant Attorney General, William Kanter, Department of Justice, Washing- ton, D.C., Andrew J. Maloney, United 3a States Attorney for the Eastern District of New York, Brooklyn, NY, Ronald M. Etters, General Counsel, National Medi- ation Board, Washington, D.C., of coun- sel), for Appellant Nat'l Mediation Board. JAMES A. MCCALL, Washington, D.C. (James T. Grady, General Counsel, Int’! Broth- erhood of Teamsters, Washington, D.C., Jeffrey P. Englander, Morrison, Cohen, Singer & Weinstein, New York City, of counsel), for Appellant Int’l Brotherhood of Teamsters. MICHAEL DELIKAT, New York City (Jill L. Rosenberg, Orrick, Herrington & Sut- cliffe, New York City, of counsel), for Appellees. MESKILL, Circuit Judge: These appeals and cross-appeals involve the validity of a review by the United States District Court for the East- ern District of New York, Glasser, J., of the certification of an employee representative under the Railway Labor Act (RLA), 45 U.S.C. § 151 et seq. The National Media- tion Board (NMB) is empowered by section 2, Ninth of the RLA, 45 U.S.C. § 152, Ninth, to investigate and resolve disputes among employees of a carrier by rail or air as to the identity of their bargaining representative. Once the carrier receives certification from the NMB that a particular individual or organization is the duly autho- ee 4a rized representative of a group of employees, the carrier is obligated to bargain with that representative. The district court erred in determining that it had juris- diction to review the union certification and incorrectly held that the certification was invalid. The court wrongly dismissed many of the counterclaims brought by the union against the carrier. The district court, however, correctly dismissed the union’s counterclaim concerning the status quo provisions of the RLA because there was no pre- existing bargaining relationship between the parties. Finally, we hold that the district court did not abuse its discretion in finding that the NMB violated Fed. R. Civ. P. 11 by filing a repetitive motion. BACKGROUND On February 17, 1988 the International Brotherhood of Teamsters, Local 851 (hereinafter, along with appellant International Brotherhood of Teamsters Airline Division, “Union”) filed an application with the NMB to investigate a dispute among certain employees of Virgin Atlantic Air- ways, Lid. (Virgin). There had been talk of unionization among this group of workers for several months prior to this application. Shortly after filing the application, the Union, along with several discharged Virgin employees, brought an action in federal court (the Hodges action) alleging that Virgin had unlawfully interfered with the right of the employees to select their own bargaining representative. The complaint alleged, among other things, that six employees had been discharged because they were vocal supporters of the Union. The discharged employees sought reinstatement. Two of the six were eventually Sa rehired by Virgin, but the remaining four did not work at Virgin after February 6, 1988. The NMB proceeded to investigate the representation dispute among the Virgin employees. In March 1988 an NMB representative held a conference with Virgin and the Union. Virgin requested that the four plaintiffs in the Hodges action not be included among those employees eligible to vote in any election held to determine repre- sentation. Under an NMB rule, discharged employees with pending reinstatement actions are eligible to vote. See 29 C.F.R. § 1206.6 (1991). Virgin recognized this rule, but argued that the four should not be allowed to vote because the Hodges action was merely an attempt to take advantage of that rule rather than a bona fide rein- Statement action. Virgin requested that the NMB stay its processing of the application until the district court ruled on the reinstatement claim. By the end of March, the NMB representative had authorized an election among the employees and had included the four Hodges plaintiffs among those employ- ees eligible to vote. The election was scheduled for April 25, 1988. The NMB representative explicitly informed the parties that they could appeal any decision of the repre- sentative to the NMB. Virgin did not appeal the decision to include the Hodges plaintiffs within the specified time. On April 19, 1988 Virgin sent a telex to the NMB with two requests. First, Virgin noted that the trial in the Hodges case had been scheduled for the same date as the election and requested that the count be moved to the fol- lowing day as Virgin wished its attorneys to be present at the vote count. Second, because the district court was expected to rule on the reinstatement claim promptly, Vir- gin requested that the challenged ballots be sequestered litle 6a and that, if those ballots proved determinative, the NMB postpone the count until the determination of the district court. The NMB responded the next day with a telex to Virgin that stated: “Due to eligibility questions raised by telex of April 19, 1988. . . the count of ballots. . . is postponed. Ballots received by the board. . . will be impounded at 2:00 p.m. on Monday, April 25, 1988 and counted at a later date after all questions of eligibility have been deter- mined.” On April 26, 1988 the NMB again communicated with Virgin and reversed its earlier position. It informed Vir- gin that the votes would be counted on April 27 and that all ballots from those eligible to vote as of the original April 25 count date would be included. Citing similar determinations in other cases, the NMB denied Virgin’s request for a delay in the count. On April 27, 1988 the district court in the Hodges action held that the four employees had not been dis- charged because of their union activity and thus were not entitled to reinstatement. Virgin informed the NMB of this decision immediately and again requested that the votes of the four employees not be counted. The NMB again denied this request and counted all the ballots. The Union received twelve of a possible twenty- one votes, including the four challenged votes. Thus, a majority of the eligible voters designated the Union as their representative. Had the four challenged ballots been excluded, the Union would not have had majority support. On May 2, 1988 the NMB certified the Union as the bar- gaining representative of the employees. Ta Despite the certification by the NMB, Virgin refused to bargain with the Union. Instead, Virgin solicited its employees to sign a prepared statement that read: “I have rethought my position regarding Virgin Atlantic and the Union and would like to collectively work with Man- agement for one year after which time I would like the option of considering a Union to represent me.” After repeated overtures to Virgin to negotiate, the Union called a strike on July 6, 1988. Virgin again refused to negotiate with the Union at a mediation session on August 8, 1988 called at the direction of the NMB. The striking workers, led by the Union, then engaged in sec- ondary picketing directed against United Airlines, a com- pany that did business with Virgin. See United Air Lines v. Airline Div., etc., 874 F.2d 110 (2d Cir. 1989). On October 11, 1988 Virgin and six of its fleet service employees filed this action in the United States District Court for the Eastern District of New York against the NMB, the Union and others. They sought to set aside the certification, claiming that the NMB had grossly violated the RLA, had violated the First and Fifth Amendments to the Constitution and had violated the Administrative Pro- cedure Act. Virgin also sought to enjoin picketing by the Union. The Union filed a counterclaim against Virgin, seeking enforcement of the NMB certification and alleging that Virgin had violated the RLA by unilaterally altering the terms and conditions of employment. The Union also alleged that Virgin had impermissibly interfered with the employees’ choice of a bargaining representative through the solicitation of signatures for the prepared statement. The NMB moved to dismiss the complaint. The NMB argued that its actions in certifying a bargaining repre- 8a sentative were not subject to judicial review except where the NMB had “grossly violated” the terms of the RLA. The NMB argued that no such violation had occurred and therefore the district court could not review the certifi- cation. On February 24, 1989, after briefing and oral argu- ment, the district court denied the NMB’s motion to dismiss. The district court recognized the limited judicial review available for NMB certifications. However, the court held that, because the NMB counted the votes of individuals who were not “employees” for purposes of the RLA, there was jurisdiction to review the certification “(ujpon the precise facts of this case.” The parties agreed that the litigation should be stayed pending an interlocutory appeal of the denial of the motion to dismiss to this Court. After a delay, the district court entered an order pursuant to 28 U.S.C. § 1292(b) for an interlocutory appeal in February 1990. On March 15, 1990 we, in our discretion, declined to permit the inter- locutory appeal to be taken and returned the matter to the district court. On June 6, 1990 the NMB filed a motion styled as a “Resubmitted Motion to Dismiss, or in the Alternative, for Summary Judgment.” That motion fundamentally relied on the same reasons the NMB had offered in its first motion to dismiss. After a hearing, the district court denied the motion on the basis of a local rule requiring that motions for reargument be made within ten days of the original decision and the law of the case doctrine. The district court imposed sanctions on the NMB under Rule 11 ror filing what was essentially the same motion that the court had denied over a year earlier. Virgin then moved for summary judgment and, after a hearing, the district court granted the motion in June 9a 1991. The district court held that the NMB had “grossly violated” the RLA by counting the votes of the four chal- lenged individuals. Therefore the district court held that the certification of the Union was invalid. The district court dismissed the Union’s counterclaims and granted summary judgment to the NMB on Virgin’s remaining claim that the certification violated the First and Fifth Amendments and the Administrative Procedure Act. Vir- gin, the Union and the NMB now appeal from the various determinations of the district court. DISCUSSION 1. The Certification The district court invalidated the certification on a motion for summary judgment pursuant to Fed. R. Civ. P. 56(c). That rule provides that a court should enter judg- . ment when “there is no genuine issue as to any material factand. . . the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In this case, the parties do not contend that any of the material facts are in dispute. The parties, however, disagree as to which of them is “entitled to a judgment as a matter of law.” The RLA provides that when there is a dispute between employees as to the identity of their representative the NMB should investigate and certify the identity of that representative. 45 U.S.C. § 152, Ninth. The jurisdiction of a federal court to review the certification of a bargaining representative by the NMB under the RLA has been held to be extremely limited. “The scope of judicial review and intervention is confined to ‘instances of constitutional dimension or gross violation of the statute.’” British Air- ———————E 10a ways Board v. National Mediation Board, 685 F.2d 52, 55 (2d Cir. 1982) (citations omitted). Virgin contends, however, that the NMB’s actions are susceptible to more exacting judicial review under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. The district court correctly rejected this contention. By its terms, the judicial review provision of the APA does not apply if “agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). As we have stated before, “ ‘[r]epresentation disputes,’ which involve controversies surrounding the designation and autho- rization of representatives of employees covered under the RLA, are committed to the exclusive jurisdiction of the NMB.” Air Line Pilots Ass'n v. Texas Int'l Airlines, 656 F.2d 16, 20 n.6 (2d Cir. 1981) (citations omitted). See also Railway Clerks v. Employees Ass'n, 380 U.S. 650, 658-60 (1965); Switchmens’ Union v. National Mediation Board, 320 U.S. 297 (1943). Therefore, review of the certifica- tion is not available under the APA. Thus, the certification here could properly be set aside only if the NMB grossly violated the RLA or violated some constitutional principle. The district court found that it had jurisdiction to review this certification because the NMB had grossly violated the terms of the statute. Virgin argues additionally that the certification violates the Con- stitution. We disagree with both contentions. a. Violation of the RLA As we noted in British Airways, “[i]nspection of the [RLA] reveals that there are relatively few commands capable of being violated.” 685 F.2d at 56. Nonetheless, the district court found that the NMB had grossly violated lla the statute by including in the representation election indi- viduals who were not “employees” of Virgin. Section 2, Ninth of the RLA provides that when a dis- pute arises among a Carrier’s employees as to the identity of their representative “it shall be the duty of the Medi- ation Board, upon request of either party to the dispute, to investigate such dispute and to certify. . . the name or names of the [representative] designated and authorized to represent the employees.” 45 U.S.C. § 152, Ninth. That section permits, but does not require, the NMB to “take a secret ballot of the employees involved.” /d. Section 1, Fifth, defines “employee” for purposes of the RLA as “every person in the service of a carrier (subject to its Continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate offi- Cial in the orders of the Interstate Commerce Commis- sion.” 45 U.S.C. § 151, Fifth. Virgin argues that, because a federal district court denied the challenged voters rein- statement, the NMB could not include them among the “employees” for purposes of the vote. However it is the NMB, not the federal judiciary, that determines voter eligibility in elections held pursuant to the RLA. Section 2, Ninth of the statute explicitly states that “[ijn the conduct of any election for the purposes herein indicated the Board shall designate who may par- ticipate in the election and establish the rules to govern the election.” 45 U.S.C. § 152, Ninth (emphasis added). The NMB has established a regulation that governs the participation by discharged employees in representation elections. 29 C.F.R. § 1206.6 states, in pertinent part: re 12a Dismissed employees whose requests for reinstate- ment [on] account of wrongful dismissal are pending before proper authorities. . . are eligible to partic- ipate in elections among the craft or class of employ- ees in which they are employed at time of dismissal. This does not include dismissed employees whose guilt has been determined, and who are seeking rein- statement on a leniency basis. 29 C.F.R. § 1206.6. Virgin claims that because the four dismissed employees’ claims for reinstatement were no longer “pending” when the votes were actually counted, inclusion of their votes violated the regulation. However, the NMB has a practice that “[wJhen the bal- lots in an election are impounded because of a question which requires resolution prior to the count, and the impounding results in a delay of the count beyond the count date. . . the status quo as it existed on the original count date must be preserved in order to prevent any change in the outcome as it would have been in the absence of the delay.” Altair Airlines, 7 NMB No. 254 (1980) (emphasis added); see also Continental Airlines, 14 NMB No. 29 (1987); Trans World Airlines, 13 NMB No. 64 (1986). Nothing in 29 C.F.R. § 1206.6 or the RLA prohibits such a practice. The NMB followed this practice here by, on April 27, counting the votes as they were on April 25, the original count date. On April 25, the four challenged voters had pending actions for reinstatement. Therefore, the NMB did not violate the regulation or the statute by counting the four ballots. Moreover, a major concern of an NMB representation investigation is to “insure the choice of representatives by the employees without interference, influence, or coercion 13a exercised by the carrier.” 45 U.S.C. 152, Ninth (empha- sis added); see Virginian Railway v. System Federation No. 40, 300 U.S. 515, 545-47 (1937). The NMB may properly use its power to designate participants in elec- tions to counteract or prevent carrier influence in the choice of a representative by the employees. In British Airways for example, we refused to examine the propriety of a certification where the NMB held an election among employees two years after determining voter eligibility. 685 F.2d at 54-56. Nothing in the RLA requires the NMB to stay elections pending resolution of a dispute over an allegedly wrong- ful discharge. Moreover, nothing in the statute mandates that, having once told the carrier that the election would be stayed, the NMB may not reverse its decision. In short, the NMB did not violate any command of the RLA. Therefore, the district court erred in setting aside the certification on the ground that the NMB had grossly violated the statute. b. Constitutional Concerns Virgin claims that the certification violated its right to due process of law guaranteed by the Fifth Amendment because the NMB violated (1) its own internal procedures and (2) the regulations set forth in the federal register. “(I]t is clear that the internal procedures manual of an executive agency does not create due process rights in the public.” Lynch v. United States Parole Comm'n, 768 F.2d 491, 497 (2d Cir. 1985). Thus, we need not address whether the NMB adhered to its internal procedures. However, an agency’s violation of a federal regulation relating to it may constitute a violation of due process. See Accardi v. Shaughnessy, 347 U.S. 260 (1954); Inter- a _ es l4a national House v. NLRB, 676 F.2d 906, 912 (2d Cir. 1982). Virgin argues that, by counting the votes of four discharged employees, the NMB violated 29 C.F.R. § 1206.6. As noted above, the inclusion of the four chal- lenged votes did not violate that regulation given the NMB’s practice of maintaining the status quo in the face of delays in the count of votes. Therefore, the NMB did not violate Virgin’s due process rights. Several Virgin employees join Virgin in objecting to the NMB certification of the Union as the employee repre- sentative. These individuals claim that the certification violated their First Amendment right of free association. They claim that the First Amendment guarantees them the right not to be represented by a group chosen by less than a majority of their co-workers. Not surprisingly, there is little support for such a propo- sition. The First Amendment right of free association has never been held to mandate “majority rule” in the labor relations sphere. If the First Amendment did protect indi- viduals from being represented by a group that they do not wish to have represent them, it is difficult to under- stand why that right would cease to exist when a majority of the workers elected the union. See Railway Employes’ Department v. Hanson, 351 U.S. 225 (1956) (upholding “union shop” provisions of the RLA against First Amend- ment challenges); Jnternational Ass'n of Machinists v. Trans World Airlines, 839 F.2d 809, 812 (D.C. Cir.) (dis- enfranchised employees did not have a First Amendment claim), cert. denied, 488 U.S. 820 (1988). The district court properly held that the certification in this case did not violate the First Amendment rights of any individual employee. 15a The NMB, therefore, did not violate any constitutional provision in certifying the Union as the representative of the Virgin employees. Because the NMB neither grossly violated the RLA nor violated the Constitution, the dis- trict court did not have the authority to set aside the cer- tification. British Airways, 685 F.2d at 55. The certification should be reinstated. 2. The Union’s Counterclaims The Union appeals from the district court’s entry of summary judgment in favor of Virgin on the Union’s counterclaims against Virgin. The Union asked the court for declaratory and injunctive relief, including a decla- ration that the NMB certification was valid, that Virgin’s unilateral changes in working conditions and refusal to recognize the Union violated the RLA and that the strike against Virgin did not violate the RLA. The Union also asked the district court to order Virgin to bargain with the Union. In part because the district court held that the Union certification was invalid, the court dismissed these counterclaims. As our discussion above indicates, the Union is entitled to a declaration that the certification is valid and that Vir- gin’s refusal to bargain with the Union violated the RLA. As we stated with regard to this very situation in United Air Lines: [T]he RLA is unambiguous with regard to the car- rier’s obligation once the NMB transmits that certi- fication to the employer: Upon receipt of such certification the carrier Shall treat with the representative so certified as the rep- resentative of the craft or class for the purposes of this chapter. ee l6a 45 U.S.C. § 152, Ninth (emphasis added). Thus, the carrier, Virgin, had an absolute duty under section 152 Ninth to sit down at the bargaining table with the union. 874 F.2d at 115. That “absolute duty” remains unfulfilled to this day and the Union is entitled to a declaration and an injunction to enforce that duty. The Union also claims that Virgin violated section 2, Third and Fourth. Section 2, Third provides, in pertinent part, that “no carrier shall, by interference, influence, or coercion seek in any manner to prevent the designation by its employees as their representatives of those who or which are not employees of the carrier.” 45 U.S.C. § 152, Third. Section 2, Fourth similarly prohibits employer interference in the selection of employee representatives. Id. § 152, Fourth. In support of this counterclaim, the Union asserts that Virgin discharged employees who were engaged in a strike designed to enforce the NMB certifi- cation and solicited employees to sign a prepared state- ment repudiating the Union. These actions, if proven, constitute interference by the carrier with the employees’ selection of a representative. See NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964) (increase in benefits, if undertaken to discourage support for union, unlawful under the National Labor Relations Act (NLRA)); Nazareth Regional High School v. NLRB, 549 F.2d 873, 883 (2d Cir. 1977) (Under NLRA, coercion normally may be inferred from the fact that supervisors are involved in soliciting signatures on anti-union petitions); cf. Broth- erhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383-84 (1969) (cases construing NLRA may be helpful in construing similar provisions of RLA). The counterclaim states a claim for violation of 45 U.S.C. § 152, Third and Fourth. Therefore, the district 17a court should not have summarily dismissed this counter- claim. The Union further alleges that Virgin, by unilaterally altering rates of pay, violated section 2, First and Seventh of the RLA, 45 U.S.C. § 152, First and Seventh. Section 2, First imposes a general duty on carriers to “exert every reasonable effort” to make agreements concerning work- ing conditions. 45 U.S.C. §152, First. Section 2, Seventh states, in pertinent part: No carrier. . . shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner pre- scribed in such agreements or in section 156 of this title. Id. § 152, Seventh. Section 156 of Title 45, section 6 of the RLA, in turn requires that carriers and representatives give each other thirty days written notice of “an intended change in agreements affecting rates of pay, rules, or working conditions.” As the district court recognized, the Supreme Court has held that the phrase “as embodied in agreements” limits this provision of the act to agreements reached after col- lective bargaining. Williams v. Terminal Co., 315 U.S. 386, 399-400 (1942). In Williams, the plaintiffs, employ- ees who had never engaged in collective bargaining with their employer, tried to halt unilateral changes in working conditions by the employer. At the time of the unilateral change in working conditions, one group of plaintiffs had authorized a representative under the RLA. That repre- sentative had, prior to the change, requested to bargain with the employer. The Court held that nothing in the RLA prevented changes prior to the actual existence of a collective bargaining agreement: 4 18a The institution of negotiations for collective bar- gaining does not change the authority of the carrier. The prohibitions of § 6 against change of wages or conditions pending bargaining and those of § 2, Sev- enth, are aimed at preventing changes in conditions previously fixed by collective bargaining agreements. Arrangements made after collective bargaining obvi- ously are entitled to a higher degree of permanency and continuity than those made by the carrier for its own convenience and purpose. Id. at 402-03 (emphasis added). The Supreme Court cast some doubt on the vitality of Williams’ interpretation of section 2, Seventh in Detroit & Toledo Shore Line RR. v. United Transportation Union, 396 U.S. 142 (1969). However, as the D.C. Circuit stated when faced with a similar problem, the Detroit & Toledo decision “plainly stops short of overruling Williams and leaves it binding in a case like the one before us where there has been ‘absolutely no prior history of any col- lective bargaining or agreement between the parties on any matter.’ ” Trans World Airlines, 839 F.2d at 814 (cita- tion omitted). Although some courts have held that something less than a formalized collective bargaining agreement may be sufficient to trigger the status quo provisions of the RLA, see International Ass'n. of Machinists v. Transportes Aereos Mercantiles, 924 F.2d 1005, 1008-10 (11th Cir.) (unratified agreement represented status quo), cert. denied, 112 S.Ct. 167 (1991), here there was not even that. The Union and Virgin never bargained with each other. Therefore, section 2, Seventh, does not apply. Similarly, where no steps toward bargaining have been taken, the unilateral alteration of rates of pay by an | 19a employer does not violate the section 2, First duty to “exert every reasonable effort” to make agreements. See Regional Airline Pilots v. Wings West Airlines, 915 F.2d 1399, 1402-03 (9th Cir. 1990), cert. denied, 111 S.Ct. 2891 (1991); Trans World Airlines, 839 F.2d at 814-15. The district court properly dismissed this counterclaim under this provision of the RLA. 3. Rule 11 Sanctions In February 1989 the NMB made a motion to dismiss Virgin’s action to set aside the Union certification. In that motion, the NMB argued that the district court did not have jurisdiction to review the certification, citing many of the cases and principles discussed above. The district court denied the motion. The district court recognized the limited nature of judicial review in this context, but held that on the precise facts of this case there was jurisdiction to review the certification. Approximately sixteen months after the original motion to dismiss was denied by the district court the NMB filed what it characterized as a “Resubmitted Motion To Dis- miss, or in the Alternative, For Summary Judgment.” In its memorandum supporting that motion, the NMB argued that the principles that it had argued in its original motion had been “reaffirmed” by intervening case law. The NMB argued that their motion was justified by Fed. R. Civ. P. 54(b), which provides, in pertinent part, that, unless the court expressly directs otherwise, any order or decision “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Fed. R. Civ. P. 54(b). The NMB asserted that this provision impliedly es 20a allows motions requesting that the court reverse one of its earlier decisions. The district court denied the motion. It held that the motion was in reality a motion to reargue the prior motion. As such, the motion was barred by a local rule that provided that such motions must be made within ten days. The district court held that the motion also should be denied based on the law of the case doctrine. It found that there was no significant new law presented in the motion. The district court found that the motion merely rehashed principles with which the court was familiar and that it had considered at the time of the first motion. The district court also held that the NMB’s theory under Rule 54(b) was totally without merit. In addition, the district court rejected the NMB’s asserted reason for filing the motion. The NMB stated at oral argument before the district court that the reason for the motion was to place the case in a posture that would allow for an appeal. The court concluded that, because the NMB had repeatedly objected to entry of summary judg- ment for Virgin—a device that would have allowed for an appeal to this court—the NMB was insincere in its avowed reason for the motion. The district court therefore held that that motion vio- lated Fed. R. Civ. P. 11 (Rule 11) and ordered the NMB to pay the reasonable costs incurred by Virgin in opposing the motion. Rule 11 states in pertinent part: The signature of an attorney or party constitutes a certificate by the signer. . . that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argu- ment for the extension, modification, or reversal of ee 2la existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. Fed. R. Civ. P. 11. The district court held that the filing of the motion was not justified by existing law or by a good faith argument for extension, modification or reversal of existing law. The court stated: “The reasons upon which the court based its denial of the motion were patent. Local Rule 3(j) and the law of the case doctrine, each of which was readily discoverable, would have counseled against the filing of this motion.” The NMB contends that the district court erred in find- ing that it violated the strictures of Rule 11 by making its second motion to dismiss. In reviewing the imposition of sanctions under Rule 11, “an appellate court should apply an abuse-of-discretion standard” to every aspect of the district court’s ruling. Cooter & Gell v. Hartmarx Corp., 110 S.Ct. 2447, 2461 (1990). However, “[a] district court would necessarily abuse its discretion if it based its rul- ing on an erroneous view of the law or on a clearly erro- neous assessment of the evidence.” /d. The NMB argues that because, as we hold today, it was correct on the merits of its motion to dismiss, the finding that the motion violated Rule 11 was an abuse of discre- tion. However, the district court did not impose sanctions on the NMB for the substance of its motion. The district court found that the NMB violated Rule 11 because mak- ing the motion at that juncture in the case, given Local Rule 3(j) and the law of the case doctrine, was not justi- fied by existing law or a good faith argument for the extension, modification or reversal of existing law. There- fore, the fact that the NMB was correct on the merits of 22a its motion does not mandate a determination that the Rule 11 sanctions constituted an abuse of discretion. Although we hold today that the district court erred in denying the NMB’s initial motion to dismiss, it was jus- tified in denying the resubmitted motion based on the law of the case doctrine. See 1B J. Moore, J. Lucas & T. Cur- rier, Moore’s Federal Practice J 0.404[4.—1], at 124-26. Similarly, the district court was within its discretion in characterizing the NMB’s “resubmitted” motion to dis- miss as in reality a motion for reargument and thus barred as untimely under Local Rule 3(j). The law of the case doctrine is admittedly discretionary and does not limit a court’s power to reconsider its own decisions prior to final judgment. See Arizona v. Cali- fornia, 460 U.S. 605, 618 (1983) (“Law of the case directs a court’s discretion, it does not limit the tribunal’s power.”); First Nat’l Bank of Hollywood v. American Foam Rubber Corp., 530 F.2d 450, 453 n.3 (2d Cir.) (“In this Circuit, the law of the case is a discretionary doctrine that need not be applied when no prejudice results from its omission.”) (citation omzitted), cert. denied, 429 U.S. 858 (1976). However, “where litigants have once battled for the court’s decision, they should neither be required, nor without good reason permitted, to battle for it again.” Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir.), cert. denied, 377 U.S. 934 (1964). The major grounds justify- ing reconsideration are “an intervening change of con- trolling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 4478 at 790. Accord, Doe v. New York City Dep’t of Social Services, 709 F.2d 782, 789 (2d Cir.) (dis- cussing law of the case in the appellate context), cert. denied, 464 U.S. 864 (1983). The district court explicitly 23a found that none of those reasons was present in this case. Even if Rule 54(b) allows parties to request district courts to revisit earlier rulings, the moving party must do so within the strictures of the law of the case doctrine. Given the deferential standard of review we must use in reviewing all aspects of a district court’s imposition of Rule 11 sanctions, we cannot say that the court abused its discretion in finding that the NMB’s position in making its motion was not justified. Judge Glasser’s prior deci- sion emphasized that there was jurisdiction to review the certification “[u]pon the precise facts of this case.” None of the intervening cases cited in the NMB’s memorandum supporting the resubmitted motion addressed the “precise facts of this case,” or even closely similar facts. Judge Glasser’s initial error in asserting jurisdiction was not so clear that the law of the case doctrine would be justifiably ignored. The imposition of the Rule 11 sanctions, there- fore, was not an abuse of discretion. CONCLUSION Because the procedures used by the NMB in deter- mining the identity of the bargaining representative of the contested group of Virgin employees neither grossly vio- lated the RLA nor raised any constitutional concerns, the district court had no power to review the certification of the Union in this case. The district court, therefore, also improperly dismissed some of the Union’s counterclaims. Because there was no prior history of collective bar- gaining between the parties, however, the district court correctly concluded that Virgin’s unilateral change in the terms and conditions of employment did not violate 45 U.S.C. § 152, Seventh. Moreover, the imposition of sanc- tions against the NMB for its resubmitted motion, given eee 24a the court’s prior narrow ruling on that subject, the local rule relating to reargument and the law of the case doc- trine, was not an abuse of discretion and thus we affirm the imposition of those sanctions. We therefore reverse the district court’s invalidation of the NMB certification of the Union as the representative of the employees at issue here. With the exception of the dismissal of the Union’s counterclaim under 45 U.S.C. § 152, Seventh, we reverse the dismissal of the Union’s counterclaims. We affirm the imposition of sanctions against the NMB under Rule 11. We vacate the judgment and remand to the district court for further proceedings not inconsistent with this opinion. 25a UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK Civil Action No. CV-88-3163 (ILG) Filed June 24, 1991 7 VIRGIN ATLANTIC AIRWAYS, LTD, et al., Plaintiffs, Vv. NATIONAL MEDIATION BOARD, et al., Defendants. ——>— _ JUDGMENT AND ORDER GLASSER, United States District Judge: This Court heard oral argument on plaintiffs Virgin Atlan- tic Airways, Ltd., Mario Batista, Lawrence French, Jose Marcello Garcia, John Aquino and Edgar Lambertus’ Motion for Summary Judgment on May 10, 1991. This Court also considered plaintiffs’ Motion to Dismiss the counter- claims of defendants Local 851, Anthony Farina, Interna- tional Brotherhood of Teamsters Airline Division and William Genoese (collectively ‘‘union defendants’’). Based upon the papers filed in connection with plaintiffs’ motions, the statements made at oral argument, the papers filed in connection with the National Mediation Board’s (‘‘NMB’’) two Motions to Dismiss or, in the Alternative, for Summary Judgment, filed on December 19, 1988 and June 5, 1990, and statements made at oral arguinents on February 24, 1989 and July 20, 1990, it is hereby ORDERED that: 1) Upon the precise facts of this case, this Court has juris- diction to review the defendant NMB’s certification of the union; | 26a 2) Summary judgment is granted for plaintiffs on the issue of this Court’s jurisdiction because the Court finds, for rea- sons it stated upon the record at the oral arguments on Feb- ruary 24, 1989 and July 20, 1990, that defendant NMB’s certification of the union as the bargaining representative grossly violated the Railway Labor Act; 3) The NMB’s May 2, 1988 certification in NMB Case Number R-5768 is null and void; 4) The union defendants’ counterclaims are dismissed for the reasons stated by the Court during oral argument on May 10, 1991; 5) Plaintiffs’ claims that the certification is invalid due to alleged ex parte contacts between the NMB and union defen- dants and that the certification violated the employees’ Fifth Amendment right to equal protection, both of which plain- tiffs withdrew in their May 7, 1991 Reply Brief, are dismissed with prejudice; 6) Summary judgment is granted for defendant NMB on plaintiffs’ claims that the certification violated the employees’ First Amendment rights to freedom of association and that the NMB’s actions violated the Administrative Procedure Act; 7) The Court considered, but finds it unnecessary to decide, plaintiffs’ alternative claim that the certification vio- lated the employees’ Fifth Amendment rights to due process because the Court has already determined that the certifica- tion is null and void since it constituted a gross violation of the Railway Labor Act; 8) Pursuant to the Court’s October 16, 1990 Order, plain- tiffs are awarded sanctions in the amount of $8,731.99, i.e., $7,801.25 in attorneys’ fees and $930.74 in other expenses. The NMB’s obligation to make this payment is stayed pend- ing appeal. If the United States Court of Appeals for the Sec- ond Circuit affirms this Court’s decision regarding sanctions, the National Mediation Board shall pay plaintiffs interest 27a from the date of this Order at a rate as established in 28 U.S.C. § 2516(b); and 9) This constitutes a final judgment pursuant to Rules 54 and 56, Federal Rules of Civil Procedure. Judgment shall be entered immediately upon the filing of this Order. So ORDERED, /s/ 1.L. GLASSER United States District Judge Dated: Brooklyn, New York June 14, 199] vv 28a [LETTERHEAD OF THE NATIONAL MEDIATION BOARD] 15 NMB No. 55 CASE No. R-5768 May 2, 1988 > In the Matter of the REPRESENTATION OF EMPLOYEES of VIRGIN ATLANTIC AIRWAYS Fleet Service Employees — CERTIFICATION The services of the National Mediation Board were invoked by the International Brotherhood of Teamsters-Airline Divi- sion (IBT), on February 8, 1988, to investigate and determine who may represent for the purposes of the Railway Labor Act, as provided by Section 2, Ninth, thereof, personnel described as ‘‘Fleet Service Employees’’, employees of the Virgin Atlantic Airways. At the time this application was received, these employees were not represented by any organization or individual. The Board assigned Board Representative Gale L. Oppen- berg to investigate. FINDINGS The investigation disclosed that a dispute existed among the craft or class of Fleet Service Employees, and by direc- tion of the Board the Board Representative was instructed to conduct an election by secret ballot to determine the employ- ees’ representation choice. 29a The following is the result of the election as reported by Board Representative William A. Gill, Jr., who was assigned to count the ballots in this case. Number of Employees Voting: IBT Number of Employees Eligible Fleet Service Employees 12 21 The National Mediation Board further finds that the Car- rier and employees in this case are, respectively, a Carrier and employees within the meaning of the Railway Labor Act, as amended; that this Board has jurisdiction over the dispute involved herein; and that the interested parties, as well as the Carrier, were given due notice of the Board’s investigation. CERTIFICATION Now, THEREFORE, in accordance with Section 2, Ninth, of the Railway Labor Act, as amended, and based upon its investigation pursuant thereto, the National Mediation Board certifies that the International Brotherhood of Teamsters- Airline Division has been duly designated and authorized to represent for the purposes of the Railway Labor Act, as amended, the craft or class of Fleet Service Employees, employees of the Virgin Atlantic Airways. By direction of the NATIONAL MEDIATION BOARD. /s/ CHARLES R. BARNES Charles R. Barnes Executive Director CRB/dsa 30a RAILWAY LABOR ACT, 45 U.S.C. §§ 151-188 Section 1. Fifth [45 U.S.C. § 151, Fifth] The term ‘‘employee’’ as used herein includes every person in the service of a carrier (subject to its continuing authority to supervise and direct the manner of rendition of his service) who performs any work defined as that of an employee or subordinate official in the orders of the Interstate Commerce Commission now in effect, and as the same may be amended or interpreted by orders hereafter entered by the Commission pursuant to the authority which is conferred upon it to enter orders amending or interpreting such existing orders: Pro- vided, however, That no occupational classification made by order of the Interstate Commerce Commission shall be con- strued to define the crafts according to which railway employees may be organized by their voluntary action, nor shall the jurisdiction or powers of such employee organiza- tions be regarded as in any way limited or defined by the provisions of this chapter or by the orders of the Commis- sion. Section 2. Third Designation of representatives. [45 U.S.C. § 152, Third] Representatives, for the purposes of this chapter, shall be designated by the respective parties without interference, influence, or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence, or coerce the other in its choice of representatives. Representatives of employees for the pur- poses of this chapter need not be persons in the employ of the carrier, and no carrier shall, by interference, influence, or coercion seek in any manner to prevent the designation by its employees as their representatives of those who or which are not employees of the carrier. | ' 3la Section 2. Fourth Organization and collective bargaining; freedom from interference by carrier; assistance in organizing or maintaining organization by carrier forbidden; deduction of dues from wages forbid- den. [45 U.S.C. § 152, Fourth] Employees shall have the right to organize and bargain col- lectively 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. No carrier, its offi- cers or agents, shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, or to use the funds of the carrier in main- taining or assisting or contributing to any labor organization, labor representative, or other agency of collective bargaining, or in performing any work therefor, or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization, or to deduct from the wages of employees payable to labor organizations, or to collect or to assist in the collection of any such dues, fees, assessments, or other contributions: Pro- vided, That nothing in this chapter shall be construed to pro- hibit a carrier from permitting an employee, individually, or local representatives of employees from conferring with man- agement during work hours without loss of time, or to pro- hibit a carrier from furnishing free transportation to its employees while engaged in the business of a labor organiza- tion. Section 2. Ninth Disputes as to identity of representatives; designation by Mediation Board; secret elections. [45 U.S.C. § 152, Ninth] If any dispute shall rise among a carrier’s employees as to who are representatives of such employees designated and authorized in accordance with the requirements of this chap- EE ———— 32a ter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute and to certify to both parties, in writing, within thirty days after the receipt of the invocation of its services, the name or names of the individuals or organizations that have been des- ignated and authorized to represent the employees involved in the dispute, and certify the same to the carrier. Upon receipt of such certification the carrier shall treat with the represent- atives so certified as the representative of the craft or class for the purposes of this chapter. In such an investigation, the Mediation Board shall be authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives in such manner as shall insure the choice of representatives by the employees without inter- ference, influence, or coercion exercised by the carrier. In 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, or may apy2int a committee of three neutral persons who after hearing shall within ten days designate the employees who may participate in the election. The Board shall have access to and have power to make copies of the books and records of the carri- ers to obtain and utilize such information as may be deemed necessary by it to carry out the purposes and provisions of this paragraph. 1 a naiennnaanecaeamemaaa ei 33a RULES OF THE NATIONAL MEDIATION BOARD 29 CFR Parts 1200-1209 Section 1206.6 Eligibility of dismissed employees to vote. [29 CFR 1206.6] Dismissed employees whose requests for reinstatement on 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 deter- mined, and who are seeking reinstatement on a leniency basis. 34a REPRESENTATION MANUAL TABLE OF CONTENTS* PAGE SECTION NO. *1.0 INITIAL NMB PROCESSING ] 2.0 NOTICE OF INTEREST ] 3.0 BOARD REPRESENTATIVE’S INVESTIGATION ] 3.1 Board Representative’s Objectives l 3.2 Intervention 2 3.3 Review & Maintenance of Loan File y 3.4 Board Representative’s Reports 2 3.401 Daily 2 3.402 Initial Report Form 2 3.5 Meeting With Representatives 3 ; 3.501 General Guidelines 3 3.501-1 Method of Contact 3 3.501-2 Type of Meeting 3 .502 Meeting With Employee Representatives 3 3.503 Meeting With Carrier Representatives 4 3.503-1 Access to Bocks and Records 4 3.503-2 Preliminary Information 4 3.503-3 Carrier Status 4 3.503-4 List of Potential Eligible Voters 5 *3.503-5 Cut-Off Date 6 4.0 DISTRIBUTION OF LIST OF POTENTIAL ELIGIBLE VOTERS 6 5.0 PRELIMINARY DETERMINATIONS 6 5.1 Craft or Class 6 Classifications 7 5.3 Eligibility of Individuals 7 ° Indicates Section amended by Board on November |, 1985. ——————— | 35a 5.301 Part Time Employees 7 5.302 Temporary Employees 8 5.303 Working in Another Craft or Class 8 5.304 Discharged Employees 8 5.305 Furloughed Employees 8 5.306 Leave of Absence 9 5.307 Probationary Employees v) 5.308 Working for Another Carrier 9 5.309 Contractor’s Employees 9 5.310 Individuals Based in Foreign Countries 9 5.311 Retired Employees 10 5.312 Officials 10 5.313 Preponderance 10 7 a7 * NATIONAL MEDIATION BOARD REPRESENTATION MANUAL Revised Edition—Effective November 1, 1985 5.0 PRELIMINARY DETERMINATIONS The Board representative should make preliminary determinations regarding craft or class and inclusion of individuals on the eligibility list before evaluating the showing of interest. In so doing the Board repre- sentative should be guided by the following principles: * * * > Eligibility of Individuals * * 5.304 Discharged Employees Ordinarily, discharged or terminated employees shall not be considered eligible unless the dis- charge is being appealed through the applicable grievance procedure or an action for reinstate- 36a ment has been filed before a court 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). » *. * | incline 37a UNITED STATES DISTRICT COURT | EASTERN DISTRICT OF NEW YORK 88 Civ. 3163 (ILG) ~ VIRGIN ATLANTIC AIRWAYS, LTD., MARIO BATISTA, LAWRENCE FRENCH, JULIO ROSA, JOSE MARCELLO GARCIA, JOHN AQUINO and EDGAR LAMBERTUS, Plaintiffs, —against— NATIONAL MEDIATION BOARD, an agency of the UNITED STATES OF AMERICA; LOCAL 851, International Brother- hood of Teamsters; ANTHONY FARINA, individually and as President of Local 851; INTERNATIONAL BROTHER- HOOD OF TEAMSTERS AIRLINE DIVISION; and WILLIAM GENOESE, individually and as Director of International Brotherhood of Teamsters Airline Division, Defendants. — AFFIDAVIT OF MICHAEL DELIKAT IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT STATE OF NEW YORK ) - Soe COUNTY OF NEW YORK ) Michael Delikat, being duly sworn, deposes and says: 1. I am a member of the firm of Baer Marks & Upham, counsel for Plaintiffs in this matter. I submit this Affidavit and the attached documents inm-support of Plaintiffs’ Motion for Summary Judgment. 2. Since 1988, I have served as counsel for Plaintiff Atlan- tic Airways, Ltd. (‘‘Virgin Atlantic’’ or ‘‘Virgin’’) in connec- tion with the events that form the basis of this lawsuit—the 38a representation dispute involving the fleet service employees of Virgin Atlantic, and the lawsuit entitled Hodges et al. v. Vir- gin Atlantic—and thus, am fully familiar with the matters set forth herein. 3. In February, 1988, the Internationa] Brothersod of Teamsters Airline Division (‘‘Teamsters Airline Division’’) filed an application with the National Mediation Board (‘“‘“NMB”’) for investigation of a representation dispute. 4. Within days after filing the Application for Investiga- tion of Representation Dispute, Local 851 of the Interna- tional Brotherhood of Teamsters (‘‘Local 851°’) and six former employees of Virgin, commenced an action in the United States District Court for the Southern District of New York, in the matter entitled Hodges et al. v. Virgin Atlantic Airways, Litd., 88 Civ. 1370 (LLS) claiming, inter alia, that Virgin Atlantic, a United Kingdom Corporation offering air service between London and the United States, had termi- nated six employees in retaliation for their support of Union representation. The action sought, inter alia, reinstatement of five of the six named individuals (one of the individuals had been reinstated prior to the commencement of the action). 5. Virgin Atlantic denied the material allegations of the Hodges complaint, asserting that the terminations, which occurred in the context of other employees being laid off in a reduction force, were done for reasons having nothing to do with union activity. 6. By commencing this action for reinstatement, Local 851 was able to obtain the necessary showing of interest to pro- ceed to an election, as the authorization cards of the dis- charged workers with an action for reinstatement pending were counted. 7. After denying a request by the Hodges plaintiffs for a preliminary injunction, the district court granted Virgin Atlantic’s request to consolidate the trial on the merits with the hearing on the preliminary injunction application and ordered expedited discovery. 39a 8. Virgin Atlantic’s request for an expedited disposition of the matter was based upon the NMB Rule that individuals with pending actions for reinstatement were eligible to vote and the fact that the inclusion of the four discharged individ- uals (one of the five individuals seeking reinstatement was ruled ineligible for reasons unrelated to the case, thereby leaving four disputed ballots) could have an outcome deter- minative impact on the election since the ‘‘unit’’ of employ- ees voting was less than twenty without these four. 9. The Hodges Court set April 25, 1988 as the date for the trial on the merits and, aware of the significance of determin- ing the status of the discharged individuals as quickly as pos- sible, announced that the Court would rule upon the claims for reinstatement at the conclusion of the evidence. 10. The NMB also set April 25, 1988 as the date for count- ing the ballots. 11. On April 19, by telex to the NMB with a copy to Local 851, Virgin Atlantic requested that the ballots of the dis- charged individuals not be counted until such time as the Hodges Court had determined whether or not such individ- uals should be reinstated to their former positions of employ- ment. A copy of Virgin’s April 19 telex is attached hereto as Plaintiffs’ Exhibit 1. 12. By telex dated April 19, 1988 to the parties, the NMB granted the request for postponement of the April 25 count dated until ‘‘a later date after all questions of eligibility have been determined.’’ A copy of the NMB’s April 19 telex is attached hereto as Plaintiffs’ Exhibit 2. 13. The Hodges court heard evidence on April 25 and con- cluded the trial of that action on April 26. That same day the NMB issued yet another decision by telex announcing that it would count ‘“‘all ballots of eligible employees’’ at 2 o’clock p.m. on Wednesday, April 27. A copy of the NMB’s April 26 telex is attached hereto as Plaintiffs’ Exhibit 3. 14. No reference was made in the April 26 telex to the NMB’s April 19 ruling that the count would be delayed until 40a ‘a later date after all questions of eligibility have been deter- mined.”’ 15. On April 27, 1988, at 11:30 a.m., the Hodges Court announced its decision dismissing the claims for reinstatement in their entirety and advised counsel that they could advise the NMB that ‘‘by my order entered on the record this morn- ing, the individual claims for reinstatement and backpay are dismissed.’’ The NMB was immediately advised by telephone and telex of this outcome. A copy of the portion of the trial transcript announcing this decision is attached hereto as Plaintiffs’ Exhibit 4. 16. At 2 o’clock p.m. on April 27, after again being advised of Judge Stanton’s decision to deny the requests for reinstatement of the four discharged individuals (as counsel for Virgin Atlantic, 1 was present at the ballot count), the NMB counted the ballots. Twelve ballots, including the four in contention, were cast for the Teamsters Airline Division. The NMB ruled that there were twenty-one eligible voters, including the four in contention. A copy of Virgin’s April 27 telex to the NMB is attached hereto as Plaintiffs’ Exhibit 5. 17. According to the NMB'’s determination, twelve out of twenty-one, or a majority, cast ballots for representation. If the four ballots had not been counted, the Union would have received eight votes out of seventeen eligible votes and would therefore not have obtained a majority. 18. On May 2, 1988, the NMB, on the basis of the dis- puted tally, issued a certification of the Teamsters Airline Division as the representative for purposes of the Railway Labor Act of the ‘‘employees’’ of Virgin Atlantic (the ‘‘Cer- tification’’). 19. On or about October 16, 1988, Virgin Atlantic and several of its employees commenced the instant action seeking to set aside the Certification on the grounds that the NMB had committed a violation of the Railway Labor Act by including the ballots of the four non-employees in the ballot 4la count in disregard of the Hodges Court’s ruling denying said individuals’ claims for reinstatement. 20. Attached hereto as Plaintiffs’ Exhibit 6 is a copy of the Notice and Rules of Election posted by Virgin Atlantic in connection with the election. 21. Attached hereto as Plaintiffs’ Exhibit 7 is a copy of the decision in Northwest Airlines, 14 N.M.B. 25 (1986). 22. Attached hereto as Plaintiffs’ Exhibit 8 is a copy of the decision in Rich Airlines, 14 N.M.B. 171 (1987). 23. Attached hereto as Exhibit 9 is a copy of pp. 55-58 of the Transcript of Motion dated February 24, 1989. 24. Attached hereto as Plaintiffs’ Exhibit 10 is a copy of this Court’s Amended Memorandum and Order dated March 1, 1989. 25. Attached hereto as Plaintiffs’ Exhibit 11 are copies of the district court and Ninth Circuit Court of Appeals deci- sions in Union of Flight Attendants, Local No. 1 vy. Air Micronesia, Civil No. 85-0125 HMF (D. Hawaii August 30, 1988), aff'd, (9th Cir. May 10, 1990). 26. Attached hereto as Plaintiffs’ Exhibit 12 is a copy of the decision in Union of Flight Attendants, Local No. | v. Continental Airlines, Case No. 88-3517 DT mee. (el. August 25, 1988). 27. Attached hereto as Plaintiffs’ Exhibit 13 is a copy of the Complaint in the instant action. 28. Attached hereto as Plaintiffs’ Exhibit 14 are copies of the Answers and Counterclaims of Defendants Local 851 and Teamsters Airline Division. /s/ MICHAEL DELIKAT MICHAEL DELIKAT 42a Sworn to before me this 7th day of March, 1991 /s/ RUTH D. RAISFELD Notary Public [NOTARY SEAL] ee 43a [EXHIBIT 2] 7105812780, APR 19 4:42 PM ’88 /Z\P NATIONAL MEDIATION WILLIAM GENOESE DIR BOARD NATIONAL AIRLINE DIVISION IBT 15 EAST 26TH STREET SUITE 1508 NEW YORK NY 10010, /FORM FAX 212-966-9706 + MICHAEL DELIKAT COUNSEL FOR VIRGIN ATLANTIC AIRWAYS STEPHEN KAHN COUNSEL FOR IBT DUE TO ELIGIBILITY QUESTIONS RAISED BY TELEX OF APRIL 19, 1988 FROM BAER, MARKS AND UPHAM, ATTORNEYS FOR VIRGIN ATLANTIC AIRWAYS THE COUNT OF BALLOTS IN NMB CASE R-5768 VIRGIN ATLANTIC AIRWAYS FLEET SERVICE EMPLOYEES AND IBT SCHEDULED IN THE OFFICES OF THE NATIONAL MEDIATION BOARD, WASHINGTON, DC AT 2:00 P.M. ON MONDAY, APRIL 25, 1988 IS POST- PONED. BALLOTS RECEIVED BY THE BOARD IN NMB CASE R-5768 WILL BE IMPOUNDED AT 2:00 P.M. ON MONDAY, APRIL 25, 1988 AND COUNTED AT A LATER DATE AFTER ALL QUESTIONS OF ELIGIBIL- ITY HAVE BEEN DETERMINED. YOU WILL BE INFORMED OF THE NEW DATE OF COUNT WHEN IT HAS BEEN SCHEDULED. ADDITIONALLY YOU MAY IF YOU WISH BE PRESENT WHEN THE BALLOTS ARE IMPOUNDED. JOINT KAHN, DELIKAT AND GENO- ESE. MAIL COPY TAIT, BOMPHY, LIEBMAN, OPPEN- BERG AND STROM. CHARLES R. BARNES, EXEC DIR, NATIONAL MEDATION BOARD TLX 89-2710 (DR/AK237) [EXHIBIT 4] UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 88 Civ. 1370 LLS > RICHARD HODGES, et al., Plaintiffs, Vv. VIRGIN ATLANTIC AIRWAYS, LTD., Defendant. April 27, 1988 11:00 a.m. Before: HON. LOUIS L. STANTON, District Judge > APPEARANCES STEPHEN H. KAHN, Attorney for Plaintiffs BAER MARKS & UPHAM Attorneys for Defendant MICHAEL DELIKAT, Of Counsel (Trial resumed) THE COURT: The court set this down today for announce- ment of its findings and decision, and these findings and con- clusions may later be amended or supplemented by the court, but not in such a manner as to change their basic tenor. 45a Either side may submit proposed amendments or supplemen- © tal findings or conclusions within ten days. From my observation of the witnesses, their testimony, documentary evidence and the submission of counsel, I find that the preponderance of the credible evidence establishes that: 1. Richard Hodges, Charles L. James, William Nicholson, Juan Plaza and Jose Soto are individuals residing in the State of New Jersey. They were employed by defendant Virgin Atlantic Airways, Ltd. in its Virgin Atlantic Cargo Division at its Newark, New Jersey facility in the position of freight agents until their employment was terminated on or about February 6, 1988. One or two weeks after that plaintiff Soto was rehired. 2. Plaintiffs James and Nicholson were hired in July and August 1987 to help Virgin Atlantic with its then increasing volume of work. In August 1987 Virgin Atlantic was expanded to a 24 hour operation. Its new customer, Summit Airlines, needed service around the clock and Virgin Atlantic used the opportunity to reschedule some of its other work as well. One of the reasons William Nicholson as hired was his prior experience with Summit work during his earlier employ- ment with Serv Air. Nicholson worked the night shift, and 50 to 60 percent of this time was spent on Summit work. 3. Reports and rumors of union activity were frequent at Virgin Atlantic. The major carriers are unionized so discus- sion of the topic of union organization was not unusual. Management was aware of that fact and was not disturbed by it although management did not favor unionization. 4. In November or December 1987 Jose Soto talked with several of the other employees about joining a food handlers union. No attempt was made to speak secretly. The talk died down quickly. Several of the employees believed that Colin Tubb, a Virgina Atlantic officer, had summoned Julio Rosa to his office and asked him about the union, asked him which Ieee 46a employees were involved and why they felt a union might be desirable. Nicholson testified that that was perceived as a threat, but there is no evidence that whatever Tubb said on that occasion discouraged or dissuaded anyone from being interested in the Teamsters organizing effort in January 1988. 5. The Teamsters effort to organize in January 1988 was discussed openly among the employees who made no effort to hide their actions. Indeed, Nicholson discussed it freely with two co-employees whom he believed to be supervisors. There is no evidence of any discouragement or interference by any member of management at any time with respect to that organizational effort except for a single speech given by Angelo Pusateri to a group of eight to ten employees at the warehouse on February 4, 1988. 6. When Pusateri spoke to the men on February 4 he was aware of the following facts: A. He knew that between August and the end of Decem- ber 1987 Virgin Atlantic had lost three of its five largest out- side customers. It had lost SMB, which because of an air crash was not using Newark Airport anymore; it had lost Highland Express which was in an English equivalent of Chapter XI] proceedings; and it had lost UPS which had obtained customs clearance to handle overseas air freight out of its own facility. Of Virgin Atlantic’s previous five major customers, this left only Summit and Air France. Summit itself had been the biggest of Virgin Atlantic’s out- side customers, responsible for a third of total cargo tonnage Virgin Atlantic handled. Summit was billed monthly and by January 15, 1988 it was approximately $60,000 in arrears. B. He knew that the Newark operation had started incur- ring losses in October, that it was necessary to cut expenses and that payroll should be reduced by 10 employees, a point on which Pusateri had been stalling because if he kept the Summit business he would need those employees to handle it. ieee 47a C. He knew that the Summit business was in peril. He had learned on that morning of February 4 that Summit intended to change a different cargo agent within a short time, and he had responded that Virgin Atlantic would stop handling Sum- mit’s business at the end of the following day if Summit did not -make payment. He had done that in the hope that Sum- mit would make that payment in order to continue its busi- ness and facilitate its transfer to its new agent. However, on February 4 Pusateri had no answer from Summit and did not know what they would do. And D, he knew that the employees at the warehouse were upset about the delays and the computation of their overtime and did not understand their shifts and benefits. He had been told that the situation was ripe for a union. Although he had no knowledge of any particular union activity, he knew that a teamster representative had been talking to the men on the premises recently. At the suggestion of Mr. Piol, Mr. Pusateri spoke to the group of men who were in the warehouse on February 4. He said that he had heard there were a lot of problems in the terminal, that they were unhappy with the pay and thought the company was cheating them on overtime and did not understand the shifts or their benefits. He explained person- nel changes in the company. Mr. Tubb was gone and Carmel Marnel, the new personnel manage., was preparing a manual listing the benefits which Pusateri pointed out were expensive and he felt the men would appreciate when they understood them. He said he understood there was talk about a union. He said that he believed a union would not solve their problems, that they could form a committee and their spokesman could come to him and that he had been a union shop steward and knew how that worked and didn’t think it was so great. He said that if faced with outrageous demands from a union, the company had the option of farming out the busi- ness as it had done when Virgin Atlantic was started. j “ae ; 48a He said they were having payment problems with Summit but that he did not expect major layoffs and hoped for new business and that they could work the problem out. He also pointed out that they paid a good salary scale, higher than their competitor, CDG. He asked what would make the company run smoother. Julio Rose mentioned lockers, improved heating and a micro- | wave oven. Pusateri said that he would look into it. Mr. James didn’t find this a satisfactory answer because Pusateri didn’t say when anything would be done. Pusateri maintains that he made no threat to terminate anyone who affiliated with a union. And in light of his union background and my observation of him as a witness during a | trial day of direct and cross-examination, I credit that testi- mony. However, his statement about farming out the work was interpreted as a threat to their employment by at least some of the employees. Nevertheless, all of the employees disre- garded the threat and continued undeterred with their union activities with the single exception of Julio Rosa who asked for the return of his union authcrization card. In fact, Hodges said to James that Pusateri was full of baloney and James agreed. 7. The following day Pusateri learned that no payment had been made by Summit and decided that it was necessary to eliminate the night shift and discharge ten people as well as cutting their costs. He instructed the duty managers to dis- charge ten people. It was not Pusateri who selected who should be cut. In fact, the discharge of ten people was excessive and left Virgin Atlantic unable to handle the work. On the managers’ complaints that too many had been let go, Jose Soto was hired a week or two later before the com- mencement of this suit and Michael Wilson and Roland Casey have since been rehired. 8. Alistair Bell and the other duty managers decided who would be discharged based on performance, attendance and | | | | i 49a seniority. Specifically the plaintiffs were discharged for the following reasons: Charles James because he had arrived late and was absent without notification and twice left from work without telling anyone and without punching out. Jose Sote because he had some absenteeism, although it was not as bad as some of the others. Richard Hodges because he had made inacurrate freight counts and weighings which created some problems. He had arrived late on several occasions. He had been reduced from checker to cargo agent. Once he had been sent home from work for refusing to help with work as requested. William Nicholson because of his history of lateness. He was part of the third shift, which was to be eliminated. His overall performance was poor, and he had been primarily hired in connection with Summit work. Juan Plaza had a history of no shows, especially around weekends. He had no home telephone so he could not be reached when they needed extra help and did not call in. Mr. Bell was unaware of any union activity by any of the named plaintiffs and the presence or absence of such activi- ties by any person on the list played no part in Bell’s selec- tion of their names. There is no evidence that such activities were discussed by Bell, Pauletti and Williams in deciding who should be discharged. 9. Mr. Kane was a leader of the Teamsters organizing drive. Mr. Butters handed out a card. Mr. Insalacco, Mr. Velazquez and Mr. Spencer all favored the union. None of them were laid off. Jose Soto was the leader of the food workers organization d-ive and although he was laid off, he was the first rehired before this suit was commenced. On the other hand, there is no evidence of particular union organizing activity on the parts of Michael Wilson, Roland Casey, Mary Insalacco, Elizabeth Robles, all of whom were laid off. There is no evidence that any employees who were retained had worse performance records than those who were 50a fired. Thus, there is no overall pattern of union discrimina- tion which emerges from the ten discharges. On those facts I reach the following conclusions: 1. The individual plaintiffs were not fired for union activity. 2. Even if union considerations had entered into the deci- sion to terminate the employees, the decisions would have been made in any event and reinstatement would not be required under the mixed motive doctrine. 3. Mr. Pusateri’s speech to the men was not an unlawful solicitation of grievances. The employees suggested lockers, improved heating and a microwave oven. Pusateri did not promise to remedy any of their grievances but only said that he would have the situation looked into. 4. Mr. Pusateri’s statement that Virgin Atlantic had the option to farm business out as had been done in the past, however innocently intended, was reasonably interpreted as a threat affecting the continued employment of the labor force. Either separately, or together with statements made to him by Colin Tubb in connection with the food handlers union or- ganization, these statements were sufficient to persuade Julio Rosa to request return of his authorization card, and whether separately or together, the effect of those statements was to influence Mr. Rosa, and that is chargeable to the employer. Plaintiff Soto has standing to raise that point. Accordingly, the plaintiffs’ claims for reinstatement and ‘ for back wages are dismissed; the application for an order that a corrective notice be posted is granted. The parties are directed to submit a proposed form of judgment on consent, if possible. If the parties cannot agree as to the form of the notice or the duration or location or locations where it should be posted, they may apply to the court within 15 days for its resolution of such matters. Does either counsel have anything further? MR. DELIKAT: Yes, your Honor, thank you. , 6 cnn Sla I have prepared a short form order which partially embodies your findings of fact and conclusions of law, the reason being I am about to catch a plane for Washington for the ballot count at 2:00 today. 1 would propose to show that to Mr. Kahn and propose to submit that to the court. I will read it. It says: Proposed Order. Whereas, the trial on the merits of within action was held on April 5 and 26, 1988; Whereas the court has this day announced its findings of fact and conclusions of law which may hereafter be amended or supplemented by the court; Now therefore it is hereby ordered that the individual claims for reinstatement of Plaintiff Hodges, Nicholson James and Plaza are hereby dismissed in their entirety, and it is further ordered that the parties hereto shall take such other actions necessary to effectuate the conclusions of law reached herein. I think that does allow for the submission of the order and the posting of the notice that your Honor has stated in his conclusions, and I would ask the indulgence of the court if Mr. Kahn would agree to that language, if we could get an order signed at this point given the exigencies of the circum- stances. MR. KAHN: Your Honor, I would respectfully oppose the proposed order. | certainly would not object to Mr. Delikat advising the NMB that you have dismissed the discharge claims, in fact, I will speak to the NMB or at least I will try to speak ‘to the NMB officials before 2:00 and I will advise them of the same, that you have done it, that nobody is going to shilly-shally about it. But that proposed order really doesn’t fairly encompass your conclusions or findings or your order and I don’t think that a document of that type which really serves only the convenience of the plaintiff in this suit should be entered. I have another comment on another subject. 52a THE COURT: Mr. Delikat, on your proposed order, I think you are free to advise the NMB or anybody else of the fact which is that by my order entered on the record this morn- ing, the individual claims for reinstatement and back pay are dismissed. At least one problem with your proposed order, probably easily remedied, is that it should provide, although my find- ings may be amended or supplemented, they may not be changed in substance. You had something else, Mr. Kahn. MR. KAHN: Two matters, your Honor.” Perhaps in trying to take notes and follow you I didn’t hear—fhere were proposed findings with regard to a company union being formed or Mr. Pusateri attempting to establish an in-house union and deal with a minority union. Was that encompassed in the findings, your Honor? THE CourT: I think those are words I never used in my findings. 1 found what he said and | reached conclusions, part of it violated the act. MR. KAHN: I would like to apply for an extension of the time to proposed amendments, the reason being that I don’t think we will have a transcript back in time to make pro- posed amendments. It was difficult to write down everything you said. THE Court: I don’t think the time is critical. It probably makes life easier for you, Mr. Delikat. Mr. DELIKAT:. I have no objection. THE CourT: How long would you like? MR. KAHN: Perhaps 20 days, your Horor. THE COURT: No problem. MR. KAHN: Could we extend our time to reach a notice, perhaps, to 20 days also? THE CouRT: Surely. MR. KAHN: Thank you. THE COURT: Court is adjourned. 53a [EXHIBIT 5] 62153590 62153590ESL UD /JULIBEAR NYK DATE: APRIL 27, 1988 TO: MR. CHARLES BARNES, EXECUTIVE DIRECTOR NATIONAL MEDIATION BOARD, WASHINGTON, pA. RE: NMB CASE NO. 4-5768. VIRGIN ATLANTIC AIR- WAYS DEAR MR. BARNES: PLEASE BE ADVISED THAT AT 11:20 A.M THIS DATE, JUDGE STANTON, THE UNITED STATES DIS- TRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, ANNOUNCED FINDINGS OF FACT AND CONCLUSIONS OF LAW ORDERING THE INDIVIDUAL CLAIMS FOR REINSTATEMENT OF PLAINTIFFS HODGES, NICHOLSON, JAMES AND PLAZA BE DIS- MISSED IN THEIR ENTIRETY. VERY TRULY YOURS, BAER MARKS & UPHAM ATTORNEYS FOR VIRGIN ATLANTIC AIRWAYS, LTD. BY: MICHAEL DELIKAT 62153590ESL UD 54a UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK CIV. No. 88-3163 (Judge Glasser) > VIRGIN ATLANTIC AIRWAYS, LTD., et al., Plaintiffs, v. NATIONAL MEDIATION BOARD, and INTERNATIONAL BROTHERHOOD OF TEAMSTERS, AIRLINE DIVISION, et al., Defendants. — DECLARATION OF CHARLES R. BARNES EXECUTIVE DIRECTOR OF THE NATIONAL MEDIATION BOARD Charles R. Barnes hereby dec!ares and states as follows: 1. I am the Executive Director of the National Mediation Board (Board) and I have held that position continuously since May, 1986. In my capacity as Executive Director, I am responsible for and oversee all representation matters arising under the Railway Labor Act (Act) which come before the Board. I am personally familiar with the regulations, policies, procedures and practices of the Board in connection with rep- resentation proceedings. From 1975 to 1986 I served at the NMB in the capacity of ~MeGator”, **Head Mediator’’, and ‘*Regional Head Mediator’’ 2. The Executive Director is the National Mediation Board’s chief executive officer and official custodian of the Board’s files and records, including those pertaining to all representation cases. This declaration is based on my review of those records, as well as on my personal knowledge. 3. On February 17, 1988, the International Brotherhood of Teamsters Airline Division (IBT) filed an application dated RcRREETarerermae eee 55a February 8, 1988 with the Board pursuant to Section 2, Ninth of the Act, seeking an investigation of an asserted representa- tion dispute among the fleet service employees at Virgin Atlantic Airways (Virgin Atlantic). (Attachment 1). This investigation was assigned NMB Case No. R-5768. (Attach- ment 2). 4. On February 22, 1988, the Board issued a telegram to Virgin Atlantic and the IBT advising them that Board Repre- sentative (Mediator) Gale L. Oppenberg would commence the investigation of NMB Case No. R-5768 on March 1, 1988 at Virgin Atlantic’s New York City office. (Attachment 3). In that telegram, the Board also requested Virgin Atlantic to furnish the Board with a list of potential eligible voters for Virgin Atlantic’s fleet service employees. 5. On March 1, 1988, Board Representative Gale L. Oppenberg arrived at the office of the Carrier’s attorneys to commence the field investigation in R-5768. After review of the employee list provided by Virgin Atlantic, the IBT sub- mitted a copy of a complaint and supporting documentation filed on February 29, 1988, in the United States District Court for the Southern District of New York. (Attachment 4). Said complaint sought, among other things, ‘‘immediate and full reinstatement to Richard Hodges, Charles L. James, William Nicholson, Juan Plaza and Michael Wilson to their former positions . . .”’ at Virgin Atlautic. 6. During the March 1, 1988, meeting in New York City Board Representative Gale L. Oppenberg notified Virgin Atlantic and the IBT that their challenges and objections to the list of potential eligitle voters furnished by Virgin Atlan- tic in NMB Case No. R-5768 were due no later than March 11, 1988. 7. On March 11, 1988, the Board received a letter from Virgin Atlantic objecting to the inclusion as potential eligible voters of Messrs. Hodges, James, Nicholson, Plaza, Soto and Wilson. (Attachment 5). Virgin Atlantic also requested that the Board ‘‘stay its processing of the application unti! the District Court makes a ruling on plaintiffs’ allegations’’. 56a 8. On March 14, 1988, the Board received a letter from the IBT requesting that Messrs. Hodges, James, Nicholson, Plaza, Soto and Wilson be included as potential eligible vot- ers pursuant to Section 5.304 of the Board’s Representation Manual. (Attachment 6). The letter also alleged ‘‘pervasive carrier interference with the election process’’ and requested an election by Laker ballot. 9. On March 15, 1988, counsel for the IBT telephoned the NMB to withdraw, while reserving the right to raise the mat- ter at a later dated, the IBT’s previous request received on March 14, 1988 for an election by Laker ballot. IBT stated this decision was based on the fact that it was more impor- tant to have a speedy election than to spend the time needed by the Board to develop a record on the question of carrier interference and a Laker ballot. 10. On March 21, 1988 the NMB issued a telegram, stan- dard in form, finding ‘‘a dispute to exist in R-5768’’ and authorizing a mail ballot election, the standard agency elec- tion procedure. The term ‘‘box’’ used in this telegram was an obvious typographical error and was not applied. (Attach- ment 7). The February 26, 1988 ‘‘cut-off date’’ directed by this telegram solely precludes individuals who were newly hired into the craft or class subsequent to that date from being eligible to vote. It does not preclude the NMB’s consid- eration of other eligibility evidence which may have devel- oped subsequent to the ‘‘cut-off date.’’ 11. On March 25, 1988 Virgin Atlantic submitted to the NMB address labels covering all employees on the list of potential eligible voters with the exception of three individ- uals the carrier stated were ‘‘no longer eligible.’’ (Attachment 8). 12. On March 29, 1988 Virgin Atlantic submitted address labels for the three individuals not submitted on March 25, 1988 while ‘‘reserving all rights’’ that said individuals were ‘‘ineligible to vote.’’ (Attachment 9). 57a 13. By letter dated March 30, 1988 (Attachment 10) NMB Mediator Oppenberg transmitted the ‘‘Official List of Eligi- ble Voters’’ as well as the Notice and Rules of Election in NMB Case No. R-5768 to Virgin Atlantic and the IBT. Medi- ator Oppenberg’s letter notified the participants in R-5768, that Messrs. Hodges, James, Nicholson, Plaza and Wilson were determined to be ‘“‘eligible voters’’ pursuant to NMB Representation Manual Section 5.304 due to their pending ‘faction for reinstatement’’. The list of eligible voters also reflected the fact that one of the individuals seeking reinstate- ment with Virgin Atlantic, Jose Soto, had been recalled to work. An appeal deadline of April 11, 1988 was specified. In addition, Mediator Oppenberg’s letter notified the partici- pants that the ballots would be mailed on April 1, 1988 and counted on April 25, 1988 as specified on the official Notice and Rules of Election. Consistent with established NMB pol- icy, Virgin Atlantic was requested to post the Notice and Rules of Election on carrier bulletin boards. 14. The NMB’s official Notice and Rules of Election uti- lized in R-5768 is standard in form and content. (Attachment 11). Consistent with NMB policy, the date for the ‘“‘COUNT OF BALLOTS’” is specified on the first page, which in this case was April 25, 1988. The election in R-5768 was by stan- dard mail ballot with the ballots mailed on Friday, April 1, 1988 and directed to be counted on Monday, April 25, 1988. This election period is quite within the NMB’s customary election duration. At the time the election period and count date were established the NMB was not aware of any antici- pated date or dates for the resolution of the court case relat- ing to the reinstatement of the five discharged employees found eligible by Mediator Oppenberg. 15. On April 11, 1988 the NMB received a letter from Vir- gin Atlantic requesting the deletion of Ms. Rapczynski, Ms. Quevedo and Mr. Ruiz from the ‘‘election eligibility list.”’ (Attachment 12). 16. On April 15, 1988 Mediator Oppenberg ruled by tele- gram that Ms. Rapczynski, Ms. Quevedo and Mr. Ruiz were iit cual 58a ineligible. (Attachment 13). An appeal deadline of April 22, 1988 was provided. 17. On April 19, 1988 the NMB received a telegram from Virgin Atlantic stating that ‘‘on April 25, Judge Stanton will hold a final trial on the merits and will determine whether said individuals were discharged in violation of the RLA.’’ The telegram also requested the NMB to take various steps to revise established NMB procedures so that the eligibility of Messrs. Hodges, James, Nicholson, Plaza and Wilson would be determined at some point subsequent to the official count date of April 25, 1988 if the Court had not ruled by then. (Attachment 14). 18. On April 19, 1988 the NMB received a telegram from Virgin Atlantic asserting that Mr. Michael Wilson was ineligi- ble to vote. (Attachment 15). Mr. Wilson was one of the individuals named in the reinstatement action involving Vir- gin Atlantic but he was subsequently recalled to work and then, according to the carrier’s letter he resigned ‘‘for a sec- ond time.’’ 19. On April 20, 1988 the NMB issued a telegram which advised the participants in R-5768 that ‘‘ballots received by the Board. . . will be impounded at 2:00 p.m. on Monday, April 25, 1988 and counted at a later date after all questions of eligibility have been determined.’’ (Attachment 16). This telegram did not change the official count date of April 25, 1988 but, rather, provided for the preservation of the eligibil- ity conditions as they existed on that date until the NMB could attend to the eligibility issues raised regarding Mr. Michael Wilson and other possible eligibility matters the agency was unable to attend to during the week of April 18, 1988. Ordinarily such matters would have been resolved prior to the April 25, 1988 count date but from April 18, 1988 to April 22, 1988 the entire NMB leadership and mediators were attending a special agency conference in Quebec, Canada. The necessary agency decisionmakers similarly were unavail- able on Saturday, April 23 and Sunday, April 24 preceding the count date. 59a 20. On April 26, 1988 the NMB issued a formal published decision, 15 NMB 170, which had been personally approved in writing by the Members of the Board in accordance with customary agency policy. (Attachment 17). Said decision reflected a consistent application of established NMB policy with regard to precluding changes in the official count date. The NMB’s determination that ‘‘the status quo as it existed on the original count date must be preserved”’ is fully consis- tent with my experience over the years as well as my under- standing of standard agency practice. 21. On April 26, 1988 the NMB received a telegram from Virgin Atlantic requesting that ‘‘the ballots not be counted until the court rules’. (Attachment 18). 22. On April 26, 1988 the NMB issued a telegram to Vir- gin Atlantic and the IBT containing the full text of the April 26, 1988 decision published at 15 NMB 170. (Attachment 19). 23. On April 26, 1988 the NMB issued a telegram confirm- ing that the ballot count physically would take place in Washington, D.C. on April 27, 1988. (Attachment 20). 24. On April 26, 1988 counsel for Virgin Atlantic and the IBT each called the NMB offices concerning the status, date aud time of the ballot count in R-5768. Hearing Officer David Strom took these phone calls. After inquiry, counsel for Virgin Atlantic was advised that any unresolved eligibility decisions would be made consistent with the Board proce- dures including the NMB’s Findings at 15 NMB 170. Conver- sation with counsel for the IBT pertained only to the date and time of the ballot count in R-5768. 25. On April 27, 1988 the ballots in NMB Case No. R- 5768 were opened, and counted. Ballots were received from 12 of the 21 eligible voters and all of these ballots were valid and cast for the IBT. The NMB April 27, 1988 Report of Election Results confirms these results. (Attachment 21). Consistent with the NMB’s ruling in 15 NMB 170 (Attach- ment 17), Michael Wilson was removed from the list of eligi- ble voters because it was reported to the NMB that prior to 60a 2:00 p.m., April 25, 1988: 1) he had been dismissed from the reinstatement action involving Virgin Atlantic; and 2) he had voluntarily resigned from Virgin Atlantic, after being rehired, on March 14, 1988. . 26. On April 28, 1988, the NMB received a telegram from Virgin Atlantic apparently sent on April 27 stating that the court would rule in the ‘‘Hodges’’ case ‘‘this morning’’ and noting various matters concerning eligibility and the count of ballots. (Attachment 22). 27. On April 28, 1988 the NMB received a telegram from Virgin Atlantic apparently sent on April 27 stating that the claims for reinstatement of Messrs. Hodges, Nicholson, James and Plaza had been ‘‘dismissed in their entirety.’’ (Attachment 23). 28. On May 2, 1988, the NMB issued a ‘‘Certification’’ in R-5768, 15 NMB 179, following approval by the Members of the Board. (Attachment 24). Said Certification officially declared that the IBT had been ‘‘duly designated and autho- rized to represent for the purpose of the Railway Labor Act, as amended, that craft or class of Fleet Service Employees, employees of Virgin Atlantic Airways.’’ 29. Copies of the NMB May 2, 1988 Certification in R- 5768 were sent to Virgin Atlantic and the IBT by the NMB’s transmittal letter dated May 2, 1988. (Attachment 25). 30. On June 24, 1988 the NMB received a transmittal letter dated June 22, 1988 from Virgin Atlantic as well as an attached letter dated May 20, 1988. (Attachment 26). The May 20, 1988 letter- stated that the NMB should not have counted the four ballots associated with the litigation before Judge Stanton. 31. On June 24, 1988 the NMB advised Virgin Atlantic that the issues raised in the Carrier’s May 20, 1988 letter pre- viously had been brought to the Board’s attention and resolved by the NMB’s decision of April 26, 1988. (Attach- ment 27). 6la 32. The Board’s ‘‘Representation Manual’’ conspicuously provides in a ‘‘Notice’’ on the cover page that the ‘‘manual provides general procedural guidance to the Board’s staff with respect to the processing of representation cases’’ and that its provisions are ‘‘neither obligatory’? on the Board ‘‘nor do they constitute the exclusive procedure for the Board’s investigation of representation matters.’’ Other appli- cable or potentially applicable portions of the Manual are included herein. (Attachment 28). 33. On October 31, 1988 the NMB received a copy of an “JUDGMENT AND ORDER”? in Richard Hodges, et al. v. Virgin Atlantic Airways, Ltd. which was signed by Judge Stanton on June 8, 1988 and ‘‘FILED”’ on June 9, 1988. (Attachment 29). This document states that the claims of Messrs. ‘‘Hodges, Nicholson, James, Plaza and Wilson are hereby dismissed in their entirety’’. In addition, the Court found that a ‘‘representative’’ of Virgin Atlantic had ‘‘vio- lated Section 2, Third and Fourth of the Railway Labor Act.”’ 34. The documents attached hereto are true copies of those portions of the official files of the Board referred to as **Attachments’’ in this declaration. I declare under penalty of perjury that the foregoing is true and correct. Executed on December 14, 1988, in the City of Washing- ton, the District of Columbia. /s/ CHARLES R. BARNES Charles R. Barnes Executive Director National Mediation Board 62a ATTACHMENT 1 Form NMB3 aproved. OMB No. 3140-0002 NATIONAL MEDIATION BOARD APPLICATION FOR INVESTIGATION OF REPRESENTATION DISPUTE TO THE NATIONAL MEDIATION BOARD, Washington, D.C. 20572 A dispute has arisen among the employees of VIRGIN ATLANTIC AIRWAYS as to who are the representatives of these employees designated and authorized in accordance with the requirements of the Railway Labor Act. The under- signed, one of the parties to the dispute, hereby requests the National Mediation Board to investigate this dispute, and to certify the name or names of the individuals or organizations authorized to represent the employees involved in accordance with Section 2, Ninth, of the Act. Parties to dispute INTERNATIONAL BROTHERHOOD OF TEAMSTERS AIRLINE DIVISION ~ (Petitioning organization or representative) Craft or class of employees involved If more than one craft or class, \ Estimated list separately \ Number of Employees 1. FLEET SERVICE \ 22 Evidence of representation \ This application is supported by (check, applicable box): L\ At least a majority, if the employees are represented. | \ ) ix At least 35%, if the employees are unrepresented. 63a Signed at NEW YORK this 8 day of FEBRUARY, 1988 Name /s/ WILLIAM F. GENOESE (Signature of applicant) WILLIAM F. GENOESE Title DIRECTOR, AIRLINE DIVISION 64a ATTACHMENT 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 88 CIV. > RICHARD HODGES, CHARLES L. JAMES, WILLIAM NICHOLSON, JUAN PLAZA, JOSE SOTO, MICHAEL WILSON and LOCAL 851, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, Plaintiffs, —against— VIRGIN ATLANTIC AIRWAYS, LTD., Defendant. > VERIFIED COMPLAINT AND JURY DEMAND Plaintiffs, by their attorney Stephen H. Kahn, complaining of Defendant Virgin Atlantic Airways, Ltd. allege as follows: JURISDICTION AND VENUE 1. The jurisdiction of this court is invoked under the Railway Labor Act (‘‘RLA’’), 45 U.S.C. § 151 ef. seq. and the Fed- eral Aviation Act, 49 U.S.C. § 1371 (k)(4). 2. Venue lies in the Southern District of New York where Defendant has a place of business. NATURE OF ACTION 3. This is an action for injunctive and other equitable relief, including back wages and reinstatement, to restrain Defen- dant from engaging in, and continuing to engage in, wrong- ful and unlawful conduct violative of its employees’ rights of * * * ” self- 65a PARTIES 4. Richard Hodges, Charles L. James, William Nicholson, Juan Plaza, Jose Soto, and Michael Wilson (the ‘‘Individual Plaintiffs’’) are individuals residing in the State of New Jer- sey. The Individual Plaintiffs were all employed by Defen- dant Virgin Atlantic Airways, Ltd. (‘‘Virgin Air’’) in its Virgin Atlantic Cargo Division at its Newark, New Jersey facility in the position of freight agents until their employ- ment was wrongfully terminated on or about February 6, 1988. 5. Plaintiff Local 851, International Brotherhood of Team- sters (‘‘Union’’), an unincorporated association, is a labor organization with offices in Valley Stream, New York. 6. Virgin Air, a corporation, is a common carrier by air engaged in interstate commerce within the meaning of RLA Title II, § 201, 45 U.S.C. § 181, and is subject to the general duties of Title 1, § 2, of said Act, 45 U.S.C. § 152. 7. Virgin Air employs approximately twenty-two employees, excluding managerial employees and office clericals, at its Newark cargo-handling facility. STATEMENT OF CLAIM 8. In late December, 1987, a union which upon information and belief is named the United Food and Commercial Work- ers Union, commenced an organizing campaign among the freight agents at Virgin Air’s Newark Facility. 9. In late December, 1987, Virgin Air’s Vice President, Colin Tubb, threatened to fire any employee who supported a union or attempted to unionize Virgin Air’s employees. Shortly thereafter, in response to Virgin Air’s threats, the Organizing drive was abandoned. 10. In January, 1988, the Plaintiff Union began an organiz- ing campaign among the employees of Virgin Air at its New- ark terminal. As part of its campaign, the Union met with 66a employees and requested that they sign cards authorizing the Union to both represent them and to request the National Mediation Board to conduct an election for representation purposes in accordance with the Railway Labor Act. 11. In mid-January, 1988, more than one-half of the non- managerial, non-office clerical employees employed by Virgin Air at its Newark facility signed union authorization cards. 12. Management officials employed by Virgin Air at its New- ark facility knew of the Union’s organizing campaign at least as early as January 20, 1988. 13. Beginning in January, 1988, Virgin Air engaged in a widespread and pervasive course of conduct to interfere with, influence and coerce its employees; to prevent them from des- ignating the Union as their representative; and to deny or question the right of its employees to join, organize or assist in organizing the labor organization of their choice. Such conduct has included the following acts: A. The president of Virgin Air’s Atlantic Cargo North American Division held a captive audience speech among some of its employees during which he threatened to dis- charge Union adherents, threatened to close Virgin Air’s Newark facility in order to discourage unionization; threat- ened to transfer all of Virgin Air’s work to another employer; and promised to improve wages and benefits if employees would abandon their support of the Union or any other labor organization. B. Various Virgin Air officials individually interrogated employees in order to discover their attitudes towards union- ization and to coerce employees to abandon their support of the Union. C. Various Virgin Air officials engaged in surveillance of employees and created the impression of surveilance in order to discourage employees from freely designating any union as their representative. 67a 14. Plaintiffs Hodges, James, Nicholson, Plaza, Soto and Wilson, all of the Individual Plaintiffs, were discharged from their employment with Virgin Air on or about February 6, 1988 because they supported the Union and in fulfillment of the threat to fire union adherents. Soto, alone among the Individua] Plaintiffs, has subsequently been recalled to employment. 15. The Railway Labor Act provides in relevant part at Sec- tion 2, Third and Fourth, 45 U.S.C. § 152, Third and Fourth: Representatives . . . shall be designated by the respec- tive y:arties without interference, influence or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence or coerce the other in its choice of repre- sentatives. Section 2, Third No carrier, its officers, or agents shall deny or in any way question the rights of its employees to join, orga- nize, or assist in organizing the labor organization of their choice and it shall be unlawful for any carrier to interfere in any way with the organization of its employ- ees. . . Or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization . . . Section 2, Fourth 16. The acts and conduct by Virgin Air alleged above vio- lates RLA Section 2, Third and Fourth, RLA § 152, Third and Fourth. 17. As a proximate result of Virgin Air’s wrongful conduct: A. The Individual Plaintiffs and their co-workers at Virgin Air’s Newark facility are fearful of losing their jobs because of the organizing campaign. B. The Individual Plaintiffs and their co-workers at Virgin Air’s Newark facility have been chilled in the exercise of their 68a rights to organize and freely choose a collective bargaining representative. C. Plaintiff Union’s organizing campaign has stalled. D. The Individual Plaintiffs will be deprived of their oppor- tunity to vote in the election which it is anticipated the National Mediation Board will conduct in the near future, this permanently depriving them of their statutory right to express their choice of representative. E. The Individual Plaintiffs have been deprived of their live- lihoods and will not be able to provide the necessaries of life for themselves and their families. 18. Virgin Air’s conduct has caused irreparable and continu- ing harm which cannot be remedied in an action at law or an administrative proceeding; and greater injury will be inflicted on the Individual Plaintiffs and the Union by the denial of injunctive relief than could possibly be inflicted upon Virgin Air by granting such relief. WHEREFORE Plaintiffs request the following relief: 1. That this Court issue a preliminary injunction: A) enjoin- ing and restraining Defendant, its officers, representatives, agents, servants, employees, and all persons acting in concert or participation with them pending final disposition of the matters in this lawsuit, from in any manner interfering with, influencing or coercing its employees in their choice of repre- sentative by any means including: threatening employees with economic or other reprisal because of their participation in activities on behalf of any union; interrogating employees about union activities; engaging in surveilance, or creating the impression or such surveilance of union activity; threaten- ing plant closure to discourage union activity; soliciting griev- ances or expressions of employee dissatisfaction, or promising benefits to discourage union activity; and interfer- ing with or influencing organizational activity or membership in the Union by laying off, discharging, or in any other man- ner terminating the employment of employees in order to dis- courage them from participating in union activity; B) 69a ordering Defendant to offer immediate and full reinstatement to Richard Hodges, Charles L. James, William Nicholson, Juan Plaza, and Michael Wilson, to their former positions, without prejudice to their seniority or other rights and privi- leges, and to refrain from interfering with, influencing, coerc- ing or discriminating against them or Plaintiff Jose Soto in the future, and to make all Individual Plaintiffs whole for all lost wages and other benefits which they lost as the result of their discharges, including interest; and C) Ordering Defen- dant to conspicuously post copies of this preliminary injunc- tive order at locations in Virgin Air’s Newark facility regularly frequented by employees without written comment thereon, for a period of sixty days. 2. That on final determination hereof, the Court issue a per- manent injunction restraining and enjoining the same acts and conduct and directing the same actions preliminarily ordered. 3. That Plaintiffs each be awarded $1,000,000 punitive dam- ages. 4. That Plaintiffs be awarded their costs. 5. That the Court grant to Plaintiffs such other and further relief that may be equitable, including the reasonable award of attorney’s fees for the public service performed. /s/ STEPHEN H. KAHN STEPHEN H. KAHN Attorney for Plaintiffs 35 Worth Street New York, New York 10013 (212) 966-8686 JURY DEMAND Plaintiffs demand trial by jury. /s/ STEPHEN H. KAHN STEPHEN H. KAHN 70a UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK 88 CIV. a RICHARD HODGES, CHARLES L. JAMES, WILLIAM NICHOLSON, JUAN PLAZA, JOSE SOTO, MICHAEL WILSON and LOCAL 851, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, Plaintiffs, —against— VIRGIN ATLANTIC AIRWAYS, LTD., Defendant. FLEET SERVICE of VIRGIN ATLANTIC AIRWAYS sought to be represented by INTERNATIONAL BROTHERHOOD OF TEAMSTERS (AIRLINE DIVISION) and currently UNREPRESENTED — REPORT OF ELECTION RESULTS The undersigned Board Representative of the National Mediation Board certifies that the results of the tabulation of baliots cast in the election held in the above case; and con- cluded. on the date indicated above, were as follows: _ 1. Number of eligible voters................... 2! to oe ee ee a ee 0 3. Votes Cast for INTERNATIONAL BROTHEROOD OF TEAMSTERS AIRLINE DIVISION - 92a 4. Votes Cast For —_ 0 5. Votes Cast For 0 — 6. Valid votes counted (sum of 3, 4 and 5)....... 12 For the NATIONAL MEDIATION BOARD /s/ W. A. GILL JR. W. A. Gill, Jr. Board Representative Attest: The undersigned party observer(s), present at the counting and tabulation of the ballots indicated above, do hereby cer- tify that the counting and tabulating were fairly and accu- rately done, that the secrecy of the ballot was kept inviolate; and that the results were indicated above. We also acknowl- edge service of this tally. For Carrier For [ILLEGIBLE] /s/ MICHAEL DELIKAT [ILLEGILBE] Atty [ILLEGIBLE] 93a ATTACHMENT 22 APR 28 7:36 AM ’88 NATIONAL MEDIATION BOARD EASYLINK MBX 5574877C001 27APR88 09:14/06:28 EST VIA: 62153590 TO: 62153590 62153590ESL UD /JULIBEAR NYK TO: MR. CHARLES BARNES, EXECUTIVE DIRECTOR NATIONAL MEDIATION BOARD, WASHINGTON, D.C. RE: NMB CASE NO. 4-5768. VIRGIN ATLANTIC AIRWAYS DEAR MR. BARNES: WE ARE IN RECEIPT OF YOUR SECOND TELEX YESTERDAY AGAIN DENYING OUR REQUEST AND WISH TO NOTE OUR CONTINUING OBJECTION. FIRST, THERE IS NO LOGICAL BASIS WHY A DECI- SION WAS ISSUED LAST WEEK ORDERING THAT THE BALLOT BE IMPOUNDED IN VIEW OF YOUR CONTRARY DETERMINATION YESTERDAY. MORE- OVER, NONE OF THE CASES CITED IN YOUR TELEX YESTERDAY ARE APPOSITE SINCE AT ISSUE HERE IS SECTION 5.304 OF THE REPRESENTATION MAN- UAL WHICH WAS NOT AT ISSUE IN ANY OF THE OTHER CASES RELIED UPON BY THE NMB IN REACHING ITS DECISION HEREIN. STRONG POLICY REASONS ALSO DICTATE A RESULT CONTRARY TO YOUR CONCLUSION. WE AGAIN STATE THAT THE ELECTORAL PROCESS WILL BE IRREPARABLEY PREJUDICED BY A COMMINGLING OF THE BALLOTS BEFORE A DETERMINATION OF THIS ISSUE. 94a IN ANY EVENT, GIVEN YOUR PRESENT INTENTION TO GO FORWARD DESPITE OUR PROTESTS, I MUST ADVISE THE BOARD THAT THE COURT IS ORALLY RENDERING A DECISION IN THE HODGES ACTION THIS MORNING AT 10:30 A.M. AT WHICH I MUST BE PRESENT. I THEREUPON INTEND TO CATCH THE FIRST AVAILABLE FLIGHT TO WASHINGTON, D.C., BUT IN VIEW OF THE SHORT NOTICE OF THE BAL- LOT COUNT AND THE COURT’S DECISION TO RULE AT_10:30 A.M., I WOULD REQUEST THE COURTESY OF THE BOARD IN DELAYING THE COUNT OF BAL- LOTS UNTIL 3:30 P.M THIS AFTERNOON. MINIMAL DUE PROCESS REQUIRES THIS BRIEF ADJOURN- MENT. FINALLY, 1 POINT OUT THAT THERE HAS BEEN NO DETERMINATION WITH RESPECT TO THE ELIGI- BILITY OF MR. WILSON, WHO WAS DISMISSED FROM THE INSTANT LAWSUIT ON THE MOTION OF THE PLAINTIFFS PRIOR TO 2:00 P.M. ON APRIL 25, 1988, AND HOW IN ANY EVENT, AFTER BEING RECALLED TO WORK AT THE CARRIER, RESIGNED TO ENLIST IN THE ARMED FORCES. VERY TRULY YOURS, BAER MARKS & UPHAM ATTORNEYS FOR VIRGIN ATLANTIC AIRWAYS, LTD. BY: MICHAEL DELIKAT 62153590ESL UD --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0697%3A1. Public record. Not legal advice.