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National Labor Relations Board - Administrative Judge Opinions

May 22, 2009

34-RC-002205 (N.L.R.B. May. 22, 2009)

JD(NY)–18–09
Hartford, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
FEDEX HOME DELIVERY, AN OPERATING DIVISION
OF FEDEX GROUND PACKAGE SYSTEMS, INC.
Employer
And 34-RC-2205
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL 671
Petitioner
Richard Hughes, Esq., John Ferrer, Esq. and Doreen Davis, Esq., Morgan, Lewis & Bockius,
LLP, for the Employer.
Gabriel Dumont, Esq., Dumont, Morris & Burke, P.C., for the Petitioner.
Rick Concepcion, Esq., Counsel for the Regional Director.
SUPPLEMENTAL DECISION ON OBJECTIONS
Joel P. Biblowitz, Administrative Law Judge: This hearing took place in Hartford,
Connecticut on January 20, 2009 and April 13, 2009, and in Boston, Massachusetts on March
13, 2009 pursuant to a Decision and Order Remanding issued by the Board on September 29,
2008. By Decision and Direction of Election (DDE) dated April 11, 2007, the Regional Director
for Region 34 found that the Employer was an employer within the meaning of the Act, that it
would effectuate the purposes of the Act to assert jurisdiction, and rejected the Employer’s
argument that the petitioned for contract-drivers were independent contractors within the
meaning of Section 2(3) of the Act and found, rather, that they were employees within the
meaning of the Act. The Decision also found that Robert Dizinno shared a community of interest
with the other contract drivers, and that the Employer failed to satisfy its burden that Paul
Chiappa was a supervisor within the meaning of Section 2(11) of the Act.
At a secret ballot election conducted on May 11, 2007, the ballots were impounded
because the Employer filed a Request for Review of the April 11, 2007 DDE. The Board denied
the Employer’s Request for Review by Order dated May 22, 2007 and the tally of ballots took
place at the Board’s regional office on June 1, 2007, with the result that 12 votes were cast for
the Petitioner, 9 votes were cast against the Petitioner, and as there were 2 challenged ballots,
challenges were not determinative. On June 8, 2007 the Employer filed the following Objections
to Election on June 8, 2007:
1. During the critical period before the representation election on May 11, 2007,
Teamster Union Local 671, Affiliated with IBT (“Union”), by and through its agents and
others with whom it acted in concert, improperly conferred valuable benefits, including
legal services, to eligible voters and caused two civil actions on their behalf to
commence in the U.S. District Court for the District of Connecticut. The civil actions
identify six (6) voters as named plaintiffs. The Union’s conduct constitutes, among other
things, an impermissible benefit that interfered with laboratory conditions necessary to
conduct a free and fair election.
2. At the election, the Company challenged the ballots cast by Paul Chiappa and Robert
Dizinno, including for the reason that certain circumstances had changed since the time
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when the petition was filed. Before the Region counted the ballots, the Company notified
the Board Agent that it maintained its challenge to the ballots of Chiappa and Dizinno for
the reasons stated previously, and it objected to the Region opening and commingling
their ballots without first (1) counting the unchallenged ballots to determine whether all
challenged ballots were outcome determinative and (2) if so, giving the Company an
opportunity to present evidence in support of its challenges, conducting an investigation,
and then making a determination as to Chiappa’s and Dizinno’s eligibility. Over the
Company’s objection, the Board Agent opened and counted the challenged ballots of
Chiappa and Dizinno; however, he did not open and count the other two challenged
ballots (one by the Union and one by the Company). The count yielded 12 votes for the
Union and 9 votes for no union. The Board Agent’s conduct in prematurely opening and
counting challenged ballots was improper.
The Union and Board Agent’s conduct was improper and affected the outcome of the
election, which turned on three votes (two of which should not have been counted
without an investigation). For these reasons and the additional reasons that the Region
and the Company might discover, the Company requests that the results of the election
in the above-captioned matter be set aside.
In my Decision on Objections, I recommended that the Employer’s objections be overruled and
that the Regional Director issue an appropriate certification. The Board’s Decision and Order
Remanding found that I erred in failing to admit and consider certain evidence that is necessary
and relevant in determining the merits of each objection.
Objection No.1
In my Decision on Objections, I found that the Union did not initiate or pay any part of
the legal fees of the lawsuit brought by the unit employees against the Employer and therefore
the Union did not confer any valuable benefits to the employees, as alleged in Objection 1, and I
therefore recommended that the objection be overruled. In its Order Remanding, the Board
stated, inter alia:
By limiting the evidence here solely to the question of whether the Union directly
financed the Connecticut lawsuits, the judge failed to develop a complete record on the
objectionable benefits issue, i.e., did the Petitioner arrange or take credit for the
provision of free legal services for unit employees contingent on a favorable outcome for
the Petitioner in the election or, for that matter, on individual plaintiffs’ votes for the
Petitioner?
The Board remanded the case to me to “reopen the record to admit additional evidence and
make appropriate findings concerning the Petitioner’s involvement in the arrangement of legal
services and what its agents said to unit employees about those services.”
Pursuant to the Remand, unit and non-unit employees testified, as did Union
representatives and lawyers involved in the employees’ lawsuits against the Employer. I should
initially note that the witnesses in this supplemental hearing about Objection No. 1 were
“reluctant witnesses” and, in some cases, more hostile than that. They had all been subpoenaed
to testify by the Employer and were either plaintiffs in lawsuits against the Employer, union
representatives involved in organizing the Employer’s employees, or counsel in the lawsuits
against the Employer. Not surprisingly, their displeasure at being subpoenaed and testifying as
witnesses for the Employer was clearly evident. Although they clearly did not go out of their way
to strengthen the Employer’s case, I find no other evidence, or reason, to discredit their
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testimony. I also decline to find an adverse inference against the Petitioner, as argued by
counsel for the Employer in its brief.
William Gardner, who is employed by the Employer at its Boston facility, and is a union
steward for Teamsters, Local 25, attempted to assist the Petitioner in its organizing drive at the
request of Steve Sullivan, the Local 25 Director of Organizing. In this regard, he attended a
meeting that the Petitioner conducted on February 25, 2007 at its union hall. He testified that
about five unit drivers were present at the meeting and he made the drivers “aware” of the
lawsuit against the Employer. After the meeting, Gardner sent an e-mail to Anthony Lepore,
president and organizer for the Petitioner, saying that he had spoken to their class action
attorney, presumably attorney Maydad Cohen, saying that the attorneys would like to speak by
telephone to any driver who would be interested in becoming plaintiffs in the lawsuit. Gardner
also attended the Petitioner’s meeting just prior to the election. Between eight and fifteen unit
drivers attended this meeting, but he did not speak at this meeting and cannot recall any
discussion of the lawsuit at this meeting. Shortly thereafter, Sullivan sent an e-mail to Gardner
asking him to call twelve unit employees. Pursuant to that request, he spoke to at least two of
the drivers, told them that at the election for the Boston unit the Employer tried to intimidate the
employees, that they should stick together, and asked if they had any questions. He does not
recall any discussion of the lawsuit against the Employer in any of these telephone
conversations.
Lepore testified that drivers and union representatives from the Boston unit attended two
of the Petitioner’s pre-election meetings, but he does not recall any discussion about the private
lawsuit. Sullivan testified that Lepore asked him to have some of the Boston unit drivers contact
the Hartford unit drivers shortly prior to the election, and Sullivan asked Gardner and Wayne
and Cathy Curran to call some of the voters to tell them that it was okay to vote for the Union.
He also e-mailed Gardner and asked him to attend the meeting conducted by the Petitioner
prior to the election. Sullivan testified further that Local 25 paid Gardner on three occasions after
the election covering the Boston unit of the Employer. These payments were made to Gardner
in 2006 and 2007 because he spent a lot of time assisting him in organizing the Boston unit, and
in defending the objections to the election that were filed by the Employer in that election.
Sullivan was asked:
Judge Biblowitz: Did that have any connection at all with the Hartford election?
The Witness: Absolutely not.
Local 25 paid Gardner wages of $524 in 2007. He had no recollection of when he received this
money or for what period the wages were meant to cover. He received this money because: “I
made myself available to the Teamsters” during that period and assisted the Teamsters in area
organizing drives involving the Employer and “I basically was available for anything that they
needed.”
Chiappa testified that he attended the Petitioner’s meeting on February 25, 2007. Lepore
and Lucas attended for the Petitioner, but he was not certain whether Gardner, Welker or
Sullivan attended. Lepore and Lucas spoke at this meeting, saying that they were trying to get
the Teamsters elected and get a contract covering the Hartford drivers. He does not recall the
lawsuits involving the Employer being discussed. At the next meeting on March 25, he, Dizinno,
Lepore, Lucas and some other unit drivers were in attendance; he does not recall whether
Gardner, Welker or Sullivan attended this meeting, and does not recall any discussion regarding
the Fedex lawsuit. Lepore and Lucas spoke about the upcoming election and the hope that the
employees would be covered by a contract with the Employer. On April 16, 2007 Chiappa
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signed a retainer agreement with the Pyle Rome law firm, and the Hayber and Pantuso law
firms. He believes that he signed it at the Hayber office together with Dizinno, and fellow
employees Dave Trojanowski, Neville Edwards and Thomas Magno. Gardner, Sullivan, Lucas
and Lepore were not there. He learned about Hayber and Pantuso from Dizinno. The upcoming
Board election was not discussed at that meeting, and he cannot recall any communications
from either of these law firms between that meeting and the election. He attended the final
Union meeting prior to the election. Gardner, Sullivan and a few other Boston unit drivers were
present at this meeting. Gardner did not talk about the Fedex lawsuit; all he said was that the
Boston drivers had already elected the Teamsters as their bargaining representative. Edwards
testified that he signed his retainer on the same day as Chiappa with the same individuals
present and that he also learned about the Hayber law firm from Dizinno. Ignasiak signed his
retainer agreement on March 16, 2007 with Chiappa, Dizinno, Edwards, Trojanowski, Magno
and Anderson present, together with attorney Hayber and an attorney from Pyle Rome. The
Board election was not discussed at this meeting, and none of the union representatives were
present at the meeting. Trojanowski testified that he attended four or five union meetings prior to
the election, but cannot remember the dates of the meetings. He does not remember any of the
Boston drivers speaking at any of these meetings and does not know Gardner. Welker attended
one or more than one meeting, but he does not remember anything that Welker said at these
meetings. He signed the retainer agreement together with the other unit employees at the
Hayber law firm on April 16, 2007. There were no discussions of the election at this meeting.
David Welker, had been employed by the International Brotherhood of Teamsters for
three years until January 2009 as senior strategic research and campaign coordinator. In that
capacity, he coordinated Teamster organizing campaigns, assisted local unions in organizing
campaigns, and was in charge of the Fedex project, which was intended to publicize the
Employer’s operation and the MDL (Multi-District Litigation) lawsuits against Fedex. A principal
aim of the Fedex Project was to publicize what the Union considered the unfairness of the
Employer’s labor relations policies, especially to its drivers. He testified to some limited contact
with the lawyers representing the drivers in the MDL lawsuit in 2006, prior to any of the Hartford
drivers joining the lawsuit, and he spoke with Maydad Cohen, an attorney involved in the
lawsuit, at the initial hearing on Objections in July 2007. He prepared and distributed campaign
material to the local unions to be distributed to the drivers to notify them about the lawsuits in
order to encourage them to contact the attorneys handling the lawsuits. He was questioned
extensively about his participation in this program and the information and e-mails that he
transmitted to Local 671 and Local 25, in particular. Letters and leaflets were sent to the
Petitioner as well as other Teamster local unions in 2006 and 2007. These unions were asked
to distribute the leaflets and to participate in the union’s “Don’t sit out the fight campaign” that
was directed at the Employer. An essential part of the letters and distributions was to notify the
members (especially those who were employed by the Employer) of the website maintained to
keep the employees notified about the lawsuits maintained against the Employer. One of the
leaflets distributed to the local unions in May 2006 states, inter alia: “The drivers’ lawsuit will end
the talk and force action on truck payments, benefits, overtime and work rules. The law is clear
and strong. The law is on the drivers’ side. Contact the lawyers. Add your voice.” On July 25,
2006, the International wrote a letter to the Petitioner stating, inter alia: “I’d like to ask for your
participation in the next stage in our campaign to support the drivers at FedEx Ground/Home
Delivery. The drivers’ legal fight to end the ‘contractor’ classification at FedEx is reaching a
critical stage. The more drivers that step forward to join in the legal fight will mean a better
chance of victory in the courts.”
Welker spoke at the Petitioner’s meeting in December 2006 and gave the employees
information about the MDL lawsuit, including a one-page handout regarding the plaintiffs’
lawyers and the website referencing the lawsuit. At the February and May 2007 meetings, he
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discussed developments in the lawsuit and told them to go to the website to obtain more
information. He also said that the union was not a party to the lawsuit and was not involved in
funding or directing the lawsuit. On June 4, 2007, Welker sent an e-mail to Gardner entitled:
“BIG WIN”, stating: “Definitely a big step forward. CT guys did what they said they’d do- win the
election, file claims with the state govt and join the MDL…” He testified that Dizinno was the
only unit employee with whom he could remember directly discussing the lawsuit. Dizinno told
him that he wanted to pursue the lawsuit and Welker told him that it was up to him. In addition,
at the May 7, 2007 meeting, Lepore told him that there was a positive reaction among the
drivers to the lawsuit.
As stated above, most of the unit employees who agreed to participate in the lawsuit
against the Employer executed retainer agreements on about April 17, 2007; the resulting
lawsuit was filed on May 22, 2007. Attorney Maydad Cohen testified that sometime after the
Petitioner’s February meeting attended by Gardner, he received telephone calls from Dizinno,
Chiappa and two or three other unit employees asking about the lawsuit. He does not know
whether they got his name and telephone number from Gardner, from the lawsuit website, or
from some other source. He obtained their employment information and their employment status
and told them of the existence of the Massachusetts lawsuit as well as the MDL lawsuit. He also
attended a meeting at Attorney Hayber’s office with Dizinno, Chiappa and other unit employees
where retainer agreements were either discussed or signed.
Amidst all of this testimony about union meetings, meetings between lawyers and the
unit drivers, and e-mails and literature that Welker sent to the local unions in support of its
campaign against the Employer, it is important to focus on the specific issue that the Board
remanded to me: “did the Petitioner arrange or take credit for the provision of free legal services
for unit employees contingent on a favorable outcome for the Petitioner in the election or, for
that matter, on individual plaintiffs’ votes for the Petitioner?” [Emphasis added] As to the first
part of this Order, there is no evidence that the Petitioner arranged, or took credit, for the free
legal services. The unit employees knew that the lawyers involved in the cases were handling
the lawsuits on a complete contingent fee basis without any involvement of the Petitioner. The
sole evidence in this regard is that both Welker and Gardner publicized (at the Petitioner’s
meetings and on the union websites) and made the unit employees aware of the lawsuits, and
even encouraged them to contact the lawyers handling the lawsuit. However, even if the
evidence had established that the Petitioner arranged for, or took credit for, the free legal
services, the Board remand also required that the provision of free legal services was
contingent on a union victory in the election or individual employee votes, and there was not a
scintilla of evidence of that. I find no merit to this objection, and I therefore recommend that
Objection No. 1 be overruled.
Objection No. 2
In my Decision, I recommended that Objection 2 be overruled, finding that the Employer
did not satisfy its burden of establishing a change of circumstances in the job responsibilities for
employees Paul Chiappa and Robert Dizinno from the close of the hearing to the date of the
election on May 11, 2007, and that the region properly opened and counted their ballots on
June 1, 2007. The Board, however, found that the Board agent erred by commingling the ballots
cast by Chiappa and Dizinno prior to any consideration of the merits of the Employer’s claim
that changed circumstances justified the challenge to those ballots and remanded the hearing to
me to take evidence and make appropriate findings as to whether the challenges to these
ballots would have been sustained based upon changed job circumstances of Chiappa and
Dizinno and if so, whether the Board agent’s error affected the election.
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David Durette, who is employed by the Employer as a senior manager at its Manchester,
New Hampshire terminal, and Ray Finch, who is employed by the Employer as senior manager,
contractor relations for the northeast and New England areas, testified for the Employer
regarding Objection No. 2. Durette, whose jurisdiction includes the Hartford terminal involved
herein, testified that in early February 2007, prior to the representation hearing herein, he had a
conversation with Scott Hagar, the senior manager for the Hartford facility. It came about
because, while at the facility, he observed that Chiappa, who was the contractor who had
contracted with the Employer, had a mailbox at the facility (which was appropriate), but that
Dizinno, who was the contractor retained driver who was retained by Chiappa to assist him with
his routes, also had his own mailbox with his name on it (which Durette testified was not
appropriate), and he told Hagar that names on the mailboxes needed to be corrected to reflect
the contractor’s name only, whether an individual or a corporation. When Durette next visited
the facility he observed that Dizinno’s name was no longer on the mailbox. He testified that
during his employment with the Employer, a contractor retained driver was never allowed to
have his name on a mailbox at the facility where he/she was employed. Durette further testified
that senior managers or contractor relations managers sometimes have “business discussions”
with the contractors to discuss their operation, either positive or negative, or to discuss concerns
about their operation. At the same time that he told Hagar about the mailboxes, he also told him
that these business discussions are to be between him and the contractor, not the contractor
retained driver. He spoke to Hagar about this because he learned that Hagar had a business
discussion with Dizinno.
Finch, also testified that only contractors are allowed to have mailboxes at the
Employer’s facilities; contractor retained drivers are not permitted their own mailboxes and to his
knowledge, none have had mailboxes of their own. He further testified that the terminal
managers would generally have business discussions only with the contractor. However, daily
package coordination issues do not rise to the level of business discussions and in those
situations the terminal manager could have discussions with the driver. The Employer
introduced into evidence two Contract Discussion Notes dated March 28 and March 29 between
Hagar and Chiappa. In each, Hagar complained to Chiappa that there were DNAs (apparently, a
failure to deliver) on Dizinno’s route on the prior day and Chiappa responded that he had no
idea what happened. Hagar told Chiappa that it looks bad for the Employer when that occurs
and that Chiappa was responsible for correcting it.
In its remand of Objection No. 2, the Board stated:
Absent evidence about the alleged pre-election change in the job circumstances for
Chiappa and Dizinno, we cannot determine whether the opening of the ballots
improperly affected the election results…it was error for the judge to preclude litigation of
this changed-circumstances issue and then to find that the Employer failed to meet its
burden.
The party seeking to exclude an employee from the unit, in this case the Employer,
bears the burden of proving that the employee(s) should not be permitted to vote. NLRB v.
Kentucky River Community Care, Inc., 532 U.S. 706 (2001); Nurses United for Improved Patient
Healthcare, 338 NLRB 837 (2003). It follows that it is the Employer’s burden to establish that
changed circumstances in the employees’ jobs from the hearing to the date of the election
support its argument that they should no longer be included in the unit. The sole evidence
produced by the Employer to support this burden was the testimony of Durette and Finch that in
early February 2007, they told Hagar that only direct employees such as Chiappa, could have
their names on mailboxes at the facility, and that since Dizinno was a contractor retained driver,
he could not have his name on a mailbox, and Hagar complied with this order. They also told
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Hagar that major business discussions should only be between the supervisor and the directly
employed driver, not with contractor retained drivers.
In order to determine whether the Employer has satisfied its burden of a sufficient
change in job circumstances of Chiappa and Dizinno so that they should be excluded from the
unit, thereby making the commingling of their ballots objectionable conduct, it is necessary to
determine the basis of the Regional Director’s DDE to determine why he included Chiappa and
Dizinno in the unit. As regards Chiappa, although the DDE excludes multiple route contract
drivers, and Chiappa executed an agreement covering Dizinno’s Manchester route, he was
included in the unit, apparently because it was found that he was not a traditional multi route
contract driver. Rather, he agreed to the second route because Dizinno, a friend of his, was
about to be hired by the Employer as a contract driver, but was unable to purchase a delivery
vehicle because of poor credit. At the suggestion of the terminal’s manager, and “as a favor to
the Employer” Chiappa executed the agreement allowing Dizinno to cover what became his
Manchester route. There was a further understanding “that any supervisory issues that arose
would be strictly between Rogers [the manager of the facility] and Dizinno.” The only further
discussion of Chiappa in the DDE, is the finding that there is no evidence that he possessed or
exercised any supervisory authority toward Dizinno and therefore the Employer had failed to
satisfy its burden of establishing that he was a supervisor within the meaning of Section 2(11) of
the Act, and he was therefore included in the unit. As the Employer has established no change
in circumstances to Chiappa’s job responsibilities, I find that it remains the same, and that he
was, and is, an eligible voter.
As regards Dizinno, the Employer alleges that the testimony of Durette and Finch
regarding removing Dizinno’s name from his mailbox and that business discussions should be
with Chiappa, rather than Dizinno, represent a sufficient change of circumstances to remove
Dizinno from the unit. Like the situation with Chiappa, this determination demands a close
reading of the DDE to determine why Dizinno was included in the unit. The Employer, in his
brief, alleges that Dizinno was included in the unit because at one point prior to the election, his
name was on a mailbox at the facility, and also prior to the election, the Employer had business
discussions with him, rather than Chiappa, about delivery problems on his route. As stated by
counsel for the Employer, the DDE discusses the mailbox and business discussions under the
classification: “Supervisory Status of Paul Chiappa and Unit Status of Robert Dizinno.” The
concluding paragraph of this subject states:
Beyond the dynamics of the business relationship between Chiappa and Dizinno, it
appears that the Employer treats Dizinno as a contract driver in his own right. In this
regard, unlike its treatment of other drivers hired by and working for contract drivers, the
Employer conducts all discussions regarding the Manchester route directly with Dizinno,
not with Chiappa. Such discussions include customer service issues and the amounts
that are due to temporary and supplemental drivers used by Dizinno for the Manchester
route during the peak season. In addition, at its Hartford Terminal, the Employer
maintains mailboxes for all it contract drivers, but not for other drivers, so that contract
drivers can receive direct Employer communications regarding a number of route-related
matters. From November 2004 through February 2007, the Employer maintained
separate mailboxes for Chiappa and Dizinno. On February 27, 2007, the second day of
the hearing in the instant matter, Dizinno’s name was removed from his mailbox without
explanation.
The Employer argues that these two factors relied upon by the Regional Director have
been nullified by the March 28 and March 29, 2007 Contract Discussion Notes and by the
removal of Dizinno’s name from his mailbox, as directed by Durette and Finch. Counsel for the
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Petitioner counters that, as stated in the DDE, his name was removed from the mailbox during
the hearing, and the Contract Discussion Notes introduced by the Employer are neutralized by a
similar note from Hagar to Chiappa, dated December 22, 2006, complaining about some
packages that Dizinno apparently did not deliver on his route. In addition, Finch testified that on
some less important issues, such as daily package coordination, the terminal manager could
have discussions directly with the driver.
The ultimate question is whether the Employer has satisfied its burden that the changed
circumstances have been sufficient to now exclude Dizinno from the unit. Reluctantly1 I find that
the Employer has sustained that burden as to Dizinno. The sole basis in the DDE for finding that
Dizinno should be included in the unit was the mailbox and discussions issue, and the credible
testimony of Durette and Finch establishes that those factors have changed since the hearing. I
therefore find that the evidence establishes that since the hearing, Dizinno’s situation has
changed sufficiently to make him an ineligible employee, and the Board agent should not have
opened, commingled and counted his ballot.
Conclusions
Based upon the above, I find that it was error for the Board agent to open, count and
commingle Dizinno’s ballot with the other ballots, despite the Employer’s continuing challenge to
Dizinno’s ballot. However, I have also found that changed circumstances did not affect
Chiappa’s inclusion in the unit and while it would have been more appropriate not to open,
commingle and count his ballot, it was harmless error to do so. Because the vote was 12 for the
Petitioner and 9 against the Petitioner, with 2 other challenged ballots, I cannot determine
whether the Board agent’s error in opening, commingling and counting Dizinno’s ballot affected
the election. I recommend that the Regional Director determine the eligibility of the remaining
two challenged ballots. If one or both of them are found to be eligible, their ballot(s) should be
opened and counted. On the other hand, if neither of them are found to be eligible then the
three vote difference establishes that the error regarding Dizinno’s vote could not have affected
the result of the election.2
Dated, Washington, D.C. May 22, 2009
____________________________
Joel P. Biblowitz
Administrative Law Judge

1 I say reluctantly because the election took place two years ago.
2 Under the provisions of Sec. 102.69 of the Board’s Rules and Regulations, exceptions to
this Report may be filed with the Board in Washington, DC within 14 days from the date of
issuance of this Report and Recommendations. Exceptions must be received by the Boad in
Washington by June 2, 2009.