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LSG LUFTHANSA SERVICES v. NATIONAL MEDIATION BD.

October 2, 2000

LSG LUFTHANSA SERVICES, PLAINTIFF,
V.
NATIONAL MEDIATION BOARD, DEFENDANT.



The opinion of the court was delivered by: Huvelle, District Judge.

MEMORANDUM OPINION

Before the Court is defendant National Mediation Board's Motion to Dismiss for Lack of Subject Matter Jurisdiction. In its complaint, plaintiff LSG Lufthansa Services ("LSG") challenges defendant's certification of the Hotel Employees and Restaurant Employees International Union (HERE) as the collective bargaining representative of the craft or class of LSG's in-flight kitchen and commissary employees on Guam and Saipan. Upon consideration of the pleadings and the entire record, and for the reasons stated below, the Court grants defendant's motion.

BACKGROUND

On February 1, 1996, HERE filed with defendant an application pursuant to section 2, Ninth of the Railway Labor Act, 45 U.S.C. § 152, et seq., alleging that a dispute had arisen as to the representation of "all restaurant and in-flight kitchen and commissary employees on Guam and Saipan including support employees" of LSG. Defendant docketed the case and began to investigate the dispute on February 5, 1996. On December 3, 1997, defendant determined that the proper craft or class was plaintiffs "in-flight kitchen and commissary employees employed on Guam and Saipan" and authorized a mail ballot election to determine whether HERE was to represent the craft or class. Only those individuals employed in the craft or class as of January 23, 1996 were eligible to vote. HERE requested that the election be conducted using an on-site ballot box, but defendant denied HERE's request and decided to use Federal Express delivery services to conduct the election.

Ballots were mailed on April 16, 1998, and the count was held on May 28, 1998. Of 176 eligible voters, 90 ballots were returned, 76 were deemed valid for representation,*fn1 and 75 contained votes for HERE.*fn2 On June 1, 1998, defendant dismissed HERE's application after finding that less than a majority of eligible employees had voted for representation. On that same date, HERE filed Allegations of Election Interference, claiming that plaintiff had threatened employees with loss of benefits if HERE won; made misrepresentations about HERE; threatened retaliation against HERE supporters; interrogated employees about HERE activities; transferred employees to other facilities; and interfered with the receipt of ballots by employees. On October 15, 1999, defendant rejected all but one of HERE's allegations, finding that delivery of employee ballot packages by plaintiff's management tainted the laboratory conditions of the election.

Based on its finding of interference, defendant ordered a rerun election to be held January 17-19, 2000. It concluded that an on-site ballot box would be used for the election in light of "the unique environment of Guam and Saipan." LSG Lufthansa Services, Inc., 27 NMB 18, 45 (1999). It further concluded that a "Laker"*fn3 ballot election was necessary "to ensure a sufficiently secret ballot box process." Id. Only those individuals employed in the craft or class as of January 23, 1996, the original eligibility cut-off date, were eligible to vote in the rerun election, and thus, 132 of the 225 employees were eligible to vote at the time of the rerun election. When the votes were tallied, there were 65 votes in favor of representation by HERE, 54 for "No Representation," and one void ballot.*fn4

On January 20, 2000, plaintiff filed Allegations of Election Interference, alleging that HERE interfered with the laboratory conditions of the election by providing legal assistance and representation for employees and engaging in coercive campaigning. Plaintiff also alleged that the original eligibility cut-off date of January 23, 1996 should not have been used and that use of a Laker ballot was not warranted. Plaintiff requested that defendant "issue a finding that plaintiff has stated a prima facie case, and afford it additional time within which to supplement [its] filing and further substantiate its allegations." (Crable Decl. Exh. 29 at 7). HERE filed a response on January 25, 2000.

On February 8, 2000, defendant issued findings rejecting plaintiff's allegations and certifying HERE as the designated and authorized representative of the craft or class of in-flight kitchen and commissary employees of LSG. Defendant found that plaintiff's claim that HERE provided assistance on legal claims did not state grounds for a claim for election interference; that plaintiff provided no evidence to support its claims that HERE engaged in coercive pro-union campaigning; and that plaintiff's allegations of establishing a wrong cut-off date and of improperly using a "Laker" ballot did not constitute allegations of election interference.

Plaintiff also alleges that it learned of a theft ring run by pro-union supervisors several days after the rerun election, but that in light of defendant's denial of additional time to provide further evidence of interference, it did not have the opportunity to bring the theft ring to defendant's attention.

Plaintiff now brings a complaint before the Court challenging defendant's certification of HERE as the designated and authorized representative of the craft or class of in-flight kitchen and commissary employees of LSG.

ANALYSIS

Standard of Review

According to Fed.R.Civ.P. Rule 12(b)(1), a claim may be dismissed if the court lacks jurisdiction over the subject matter. In deciding whether to dismiss, a court may "consider matters outside the pleadings without converting the motion into one for summary judgment." Federation for American Immigration Reform v. Reno, 897 F. Supp. 595, 600 n. 6 (D.D.C. 1995); see also 5A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1366 at 484-85 (2d ed. 1990) ("There has never been any serious doubt as to the availability of extra-pleading material on [12(b)(1)-(5), and (7)] motions").

A motion to dismiss may be granted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Plaintiff is entitled to all favorable inferences which can be drawn from those allegations, Federation for American Immigration Reform, 897 F. Supp. at 600 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), but "the court need not accept inferences drawn by plaintiff[] if ...


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