25 NMB No. 97
June 29, 1998
Jay C. Counts, Esq.
Littler Mendelson, P.C.
A Professional Corporation
2001 Ross Avenue
Suite 2600, Lock Box 116
Dallas, TX 75201
Ray Benning, Director
National Airline Division
International Brotherhood of Teamsters
6242 Westchester Parkway, Suite 250
Los Angeles, CA 90045-4820
Re: NMB Case No. R-6598
Express One International, Inc.
This determination addresses the Carrier's January 8, 1998, appeal of Mediator Thomas Ingles' ruling that Express One International's pilots based in Brussels, Belgium are eligible to vote in an election to determine whether the Carrier's Flight Deck Crew Members desire representation. The applicant in this matter is the International Brotherhood of Teamsters (IBT). For the reasons set forth below, the Carrier's appeal is granted.
On May 13, 1998, Mediator Ingles ruled Brussels-based pilots eligible to vote. Mediator Ingles based his determinations in large part on the fact that the addresses provided by the Carrier for all but 12 of the 69 Brussel-based pilots were United States addresses. The Carrier and the IBT provided limited evidence to Mediator Ingles. As a result, in his ruling, Mediator Ingles provided the participants with an additional opportunity to submit evidence.
On May 20, 1998, the Carrier filed an appeal and submitted additional evidence in support of its appeal. Although provided an opportunity to do so, the IBT did not respond to the Carrier's appeal.
The Carrier asserts that the Mediator mistakenly relied upon the assertions of the IBT and the mailing labels for Brussels-based employees which included United States addresses. According to the Carrier, the fact that many Brussels-based pilots list United States addresses in their personnel files, does not change their status as permanently foreign-based pilots. The Carrier relies upon several Federal court cases which provide generally that the Railway Labor Act does not apply to foreign-based employees operating exclusively outside the United States. Additionally, the Carrier asserts that the evidence it has provided demonstrates that its Brussels-based pilots are based there permanently, and as such, are not eligible voters.
Express One began operating in Belgium in 1994, and has continued to do business there, except for a brief period of bankruptcy in 1995. According to Express One's General Counsel, Stephen Thompkins, due to the recent nature of Express One's Belgian operations, many of its Brussels-based pilots were hired originally in the United States. More recently, some of the newly hired Brussels-based pilots are citizens of European nations.
Express One is registered to do business in Belgium, maintains an office in Brussels, pays Belgian taxes, and is permitted to purchase and own property in Belgium.
According to George Casey, Vice-President-Planning for Express One, the Carrier's base assignments, including its Brussels assignments, are permanent. Casey further stated that pilots may change bases only if their seniority permits the change and a position at a different base is available.
According to Thompkins, Brussels-based pilots "engage in flight operations wholly outside the United States" and are dispatched and assigned from Brussels. Brussels-based pilots work under an Express One contract with European Air Transport, while United States-based pilots operate under Express One's contracts with third parties on behalf of the United States Post Office and on an ad hoc basis with other carriers.
Brussels-based pilots receive salary and benefits different from those pilots based in the United States. Brussels-based pilots also receive a per diem allowance, which totals approximately $1800 per month, that is not provided to pilots based in the United States. Additionally, Brussels-based pilots generally work two weeks on and two weeks off while most pilots based in the United States work one week on and one week off.
According to Casey, Express One does not have a mandatory base assignment rotation system which would require pilots to rotate to a Brussels assignment during their tenure with the Carrier. Nor does the Carrier have a one, two, or six month base assignment. All base assignments are permanent, unless a pilot changes bases as permitted by seniority and position availability.
According to Casey, the only bidding done regularly is for weekly route assignments. On Express One, each pilot is assigned to a crew. As explained by Casey, crew rotations, which may cover several weeks or months, list the weeks each pilot is expected to work. For each workweek, the pilot must bid for the routes he seeks to fly.
Express One provides Brussels-based pilots with a housing allowance. In lieu of the housing allowance, Brussels-based pilots may live in apartments leased by Express One for an unlimited period of time. Express One provides hotel accommodations to its pilots, whether based in the United States or Brussels, only on layovers or when they are otherwise away from their home base. Brussels-based pilots are provided hotel accommodations in Brussels only initially when awaiting more permanent housing arrangements.
According to Thompkins, several of Express One's Brussels-based pilots have availed themselves of Section 911 of the Internal Revenue Code which permits exemption from Federal Income Tax for bona fide residents of a foreign country. Express One has retained local legal counsel in Brussels to assist its pilots, as appropriate, to obtain foreign work permits and visas.
Section 5.310 of the Board's Representation Manual provides that "[o]nly employees based within the United States and/or its possessions are subject to Railway Labor Act jurisdiction." For purposes of determining eligibility in an election conducted by the Board, the controlling factor is whether or not these individuals are based within the United States, not "where the transportation [is]." Atlas Air, 25 NMB 181, 183 (1998).
There have been relatively few cases where the issue of eligibility of individuals who allegedly are foreign-based has been before the Board. Most recently, in Atlas Air, 25 NMB 181 (1998), the Board found eligible employees who were hired and permanently domiciled in the United States, who did not work under foreign visas or permits, and who are provided temporary hotel accommodations overseas. In Swissair, 16 NMB 146 (1989), the Board found Swiss nationals eligible because they were residents of the United States working under United States visas. In Japan Air Lines, Ltd., 4 NMB 112 (1967), the Board found Japanese nationals eligible where they were assigned to the United States for a minimum of three years and a maximum of seven, eight, or more years.
In Offshore Logistics, 11 NMB 144 (1984), the Board ruled foreign-based employees ineligible, based upon the fact that the individuals were stationed abroad for a minimum of six months to five or more years, and were parties to a special contract governing wages and work rules.
Based upon the facts and circumstances of this case, the Board finds that the employees at issue are based permanently in Brussels, and as such, are not eligible. While Express One's Brussels-based pilots may, as seniority and available positions permit, transfer to the United States, they are based in Brussels indefinitely and do not rotate to and from Brussels on a periodic basis. Brussels-based pilots bid only on Brussels-dispatched flights.
Additionally, Express One's Brussels-based pilots are provided with apartments or with a housing allowance, rather than hotel accommodations. Compare Atlas Air, supra. As was the case in Offshore Logistics, supra., Express One's Brussels-based pilots have different wages, benefits, schedules. Finally, Express One provides legal assistance to American pilots requiring foreign work permits or visas in Belgium.
Based upon the facts of this case in light of applicable precedent, the Board finds the individuals at issue are not eligible to vote. Their ballots, if cast, will not be counted and the count will take place as scheduled at 2:00 p.m. EDT, Monday, June 29, 1998.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff