26 NMB No. 22
December 14, 1998
Daniel M. Katz, Esq.
Counsel for Communications Workers of America
Katz & Ranzman
1015 18th Street, N.W., Suite 801
Washington, DC 20036
Harry A. Rissetto, Esq.
Sheldon M. Kline, Esq.
Counsel for American Airlines, Inc.
Morgan, Lewis & Bockius LLP
1800 M Street, N.W.
Washington, DC 20036-5869
Re: NMB Case No. R-6635
American Airlines, Inc.
This determination addresses the appeals filed by the Communications Workers of America (CWA) and American Airlines of certain eligibility rulings made by Board Investigator Joyce M. Klein. For the reasons set forth below, the Board upholds the Investigator's rulings, with the exception of one individual.
On October 8, 1998, CWA filed an application seeking to represent American's Passenger Service Employees. The Board found a dispute to exist on October 19, 1998, and authorized an all mail ballot election using a cut-off date of October 2, 1998. Ballots were mailed November 12, 1998, and the count is scheduled for December 15, 1998.
On November 10, 1998, the Investigator met with representatives of the Carrier and the Organization in an attempt to narrow the eligibility issues. The Investigator issued oral rulings on November 10, 1998, and reduced the oral rulings to writing on November 13, 1998. Both participants filed appeals on November 20, 1998, and filed responses to the other participants' appeals on December 1, 1998. Each participant submitted evidence in support of its position. All individuals whose eligibility is at issue were sent "Challenged" ballots.
A. During the investigation, CWA challenged the eligibility of "Provisional Employees," asserting that as of the cut-off date these individuals were trainees, and that, therefore, they do not have a reasonable expectation of continued employment. The Carrier argued that these individuals are eligible because once they complete their training they can reasonably expect employment in American's reservations offices.
The Investigator ruled "Provisional Employees" ineligible because as of the cut-off date they were not performing line functions in the craft or class. The Investigator cited United Airlines, 18 NMB 181 (1991), and Simmons Airlines, 15 NMB 228 (1988), where the Board held that "absent substantive evidence of performance of line work in the craft or class," the Board does not consider trainees eligible.
B. The Carrier appealed the Investigator's ruling arguing that, were the Board to use its previous definition of "cut-off date," these individuals would clearly be considered eligible. Until 1980, the Board's practice was to establish the cut-off date as of the last day of the last payroll period prior to the Board Representative's arrival on the property to commence the investigation. The Board changed this policy in 1980 to avoid the problem of a carrier "padding" the list and impeding the representation investigation.(1)
According to American, the 140 "Provisional Colleagues" were not hired to "'pad' the list of eligible voters," and further they are currently working in the Carrier's reservations offices. The Carrier takes the position that the Board's change from its previous practice of establishing the cut-off date as the payroll period ending before the on-the-property investigation "operates inequitably because it gives . . . the union the unilateral right to determine and control the composition of the potential electorate . . . .", and further has the effect of disenfranchising employees who possess a "present interest" in the craft or class. (Emphasis in original). The Carrier cites the Board's decisions in USAir, Inc., 10 NMB 495 (1983), and Piedmont Airlines, 9 NMB 41 (1981), in support of its position that the Board should use a different cut-off date. In those cases, the Board changed the cut-off date due to "extraordinary circumstances."
In response, CWA maintains that the "Provisional Employees" were in training as of the cut-off date and had not performed line functions. Further, the Organization asserts that American "has failed to establish the extraordinary circumstances necessary to justify a departure from the usual cut-off date.
C. The Board has consistently applied 45 U.S.C. §§ 151, Fifth, and 181 to find trainees ineligible. In addition to its decisions in United Airlines, supra, and Simmons Airlines, supra, the Board has applied this policy in America West Airlines, 18 NMB 140 (1991), Rosenbalm Aviation, 15 NMB 313 (1988), Union Pacific Railroad, 15 NMB 289 (1988), and Midway Commuter, 15 NMB 278 (1988), accord, Air Line Pilots Association v. United Airlines, Inc., 802 F.2d 886 (7th Cir. 1986), cert. denied, 480 U.S. 946 (1987).
The Board notes that the two cases cited by the Carrier in support of using a different cut-off date are the only two cases where the Board has changed the cut-off date. Both cases involved significant turnover in the craft or class due to the passage of several years between the cut-off date and the election period, considerations not presented by the current dispute.
There is insufficient justification for departing from well-established Board practice here. The record establishes that American's "Provisional Employees" were trainees as of the cut-off date and are, therefore, ineligible.
Sales Associates and Clerical Associates
A. During the investigation, CWA also challenged the eligibility of Sales Associates and Clerical Associates, alleging that these individuals are "seasonal or casual" employees. American argued that the approximately 250 Associates are regular part-time employees who have an employer-employee relationship and a reasonable expectation of continued employment in the craft or class.
Investigator Klein ruled that Sales Associates and Clerical Associates are eligible. The Investigator based this ruling upon a number of factors, including: these employees work regular, identifiable schedules; receive travel benefits after they have completed a six-month probationary period; and they have federal and state taxes and FICA deducted from their paychecks. Further, American's regulations provide that "Associates" who do not work at least three consecutive months are terminated.
In support of her ruling, the Investigator cited Sections 5.301 and 5.302 of the Board's Representation Manual which provide guidelines for determining the eligibility of part-time and temporary employees, respectively.
B. CWA appealed the Investigator's ruling on the eligibility of Sales and Clerical Associates. The Organization cites American's regulations which state:
Associate employees status is reserved for circumstances where there is intermittent employment but no immediate intent for regular employment status. The Associate category is used for situations where help is needed for limited periods on an on-going basis.
The Organization also states that "Associates" receive pay and benefits "far inferior" to those of "regular employees within the craft or class."
In its response, American points out that employees in these job classifications were found eligible by the Board in American Airlines, 6 NMB 661 (1978). The Carrier also cites a number of Board decisions finding part-time employees eligible, including: Bemidji Aviation Services d/b/a Air Direct Charter, 21 NMB 377 (1994) (part-time employees ruled eligible despite receiving no benefits); American Trans Air, Inc., 18 NMB 392 (1991) (part-time employees who flew an average of 10 hours per month and receive only travel benefits ruled eligible); and Emery Air Charter, Inc., 18 NMB 387 (1991) (part-time employees paid on a per flight basis ruled eligible).
C. Section 5.301 of the Board's Representation Manual provides guidelines for determining the eligibility of part-time employees in part, as follows:
When investigating the eligibility of a part-time employee, the [Investigator] should determine (a) if the employee works an identifiable schedule during a specified time period; (b) whether the employee regularly relieves other employees; (c) what benefits the employee receives; (d) what deductions are taken from the employee's pay; and (e) any other relevant facts . . .
The [Investigator's] determination of eligibility . . . must take into consideration the varied operating practices on different Carriers . . . .
Section 5.302 provides, in part:
[O]nly those employees with a present interest regarding the craft or class in dispute are eligible to vote in an NMB representation election. Such policy is implemented with respect to temporary employees by examining whether or not the employees in question have a reasonable expectation of continued employment or re-employment in the craft or class.
The record in this case establishes that American's "Associates" work regular, identifiable schedules and receive travel benefits. Further, the Carrier deducts federal and state taxes plus FICA from the individuals' weekly paychecks. On the average, system-wide, these individuals work 16 hours per week. The "Associates" also do not receive travel benefits until they have worked a six-month probation period and they can be terminated for failure to work for at least three consecutive months. As these individuals clearly have an employee-employer relationship, the Board finds they are eligible. See Polar Air Cargo, 25 NMB 377 (1998).
Local Career Development (LCD) and Management
Development-Program (MDP) Employees
A. During the investigation, CWA challenged the eligibility of 72 LCD and MDP Employees on the basis that they are management officials. According to the Organization, these individuals, who participate in a one-year management training program, are exposed "to functional responsibilities of management," receive $1.00 per hour premium pay, do not perform line functions, and do not receive overtime pay. The Carrier argued in response that LCD's and MDP's are merely management trainees.
The Investigator ruled LCD's and MDP's eligible, based upon her application of the policy embodied in Section 5.312 of the Board's Representation Manual, as well as in several Board decisions, to the facts established by the investigation. Finding that these
individuals were "management trainees", the Investigator stated:
Review of the indicia of managerial authority demonstrates that those employees . . . have few. They do not have the authority to authorize or grant overtime, transfer, or establish assignments. LCD/MDPs do not create carrier policy, commit carrier funds, or adjust grievances. LCD/MDPs are below first level managers in the corporate hierarchy and receive an hourly premium for hours worked in a management trainee capacity, but not for those hours they spend on the phones. . . .
The Investigator further found that although employees perceive LCD's and MDP's as having the authority to evaluate, discipline or discharge, or to effectively recommend such actions, these actions are taken under the direction of managerial employees as a component of the training program. Further, employees who participate in these management training programs are not guaranteed management positions, and several employees have not been promoted after completing the training. The Investigator also found that these employees continue to perform Passenger Service work while in these programs.
B. CWA appealed the Investigator's ruling that LCD's and MDP's are not management officials. The Organization asserts that only those individuals with "understanding of leadership philosophies" and "previous management experience" are selected for these "two training programs." CWA argues further that LCD's and MDP's possess real managerial authority when they "fill in for permanent members of management . . . on medical leave or vacation . . . ." According to the Organization, LCD's schedule work and administer discipline for violations of carrier employment policies.
In its reply, American maintains that LCD's and MDP's do not hire, do not authorize or grant overtime, do not create Carrier policy, do not commit Carrier funds, do not receive any pay increase other than $1.00 per hour premium pay, and remain hourly employees (managerial employees are salaried). The Carrier asserts that "managerial" actions taken by these individuals are subject to the direction of management officials. American cites several Board decisions, which it argues are analogous, in support of its position, including USAir, Inc., 24 NMB 38 (1996), Tower Air, 16 NMB 338 (1989), America West Airlines, 16 NMB 224 (1989) and Pacific Southwest Airlines, 14 NMB 303 (1987).
C. Section 5.312 of the Board's Representation Manual deals with the eligibility of "management officials," as follows:
If an individual is determined to be a management official, the individual is ineligible. The [Investigator] shall consider, in the investigation, whether the involved individual has the authority to discharge and/or discipline employees or to effectively recommend the same; the extent of supervisory authority; the ability to authorize and grant overtime; the authority to transfer and/or establish assignments; the authority to create Carrier policy; the authority and the extent to which Carrier funds may be committed; whether the authority exercised is circumscribed by operating and policy manuals; the placement of the individual in the Organizational hierarchy of the Carrier; and any other relevant factors regarding the individual's duties and responsibilities.
The Board has consistently applied these principles in determining the eligibility of individuals alleged to be management officials USAir supra (individuals who received premium pay but with little or no real authority eligible), and Pan American World Airways, 15 NMB 112 (1973) where the Board stated that it views the factors it examines cumulatively.
The record in this case establishes, as the Investigator noted, that LCD's and MDP's possess very few indicia of managerial authority. There is no evidence that these individuals hire or fire, authorize or grant overtime, create carrier policy, commit carrier funds, or adjust grievances. They receive premium pay only when not performing line functions in the craft or class. Viewing the evidence as to the actual functions of LCD's and MDP's cumulatively and in light of Board policy and precedent, the Board finds these individuals are not management officials and are, therefore, eligible.
A. During the investigation CWA challenged the eligibility of certain Senior Fulfillment Representatives and Fulfillment Representatives in the Ticket Delivery Service Department (TDS). The Organization took the position that these employees primarily perform clerical functions and are not part of the craft or class of Passenger Service Employees. The Carrier asserted that all Senior Fulfillment Representatives and Fulfillment Representatives are an integrated unit who have direct customer contact and are part of the craft or class.
The Investigator ruled that TDS Fulfillment Representatives are eligible after reviewing the job description for the position, which states:
Provides necessary support to complete tickets-by-mail transactions. Handles incoming and outbound passenger phone calls verifying credit card charges to avoid possible fraud. Makes outbound phone calls to banking institutions or credit card issuers to resolve any irregularities. Corrects PNR (passenger name record) formats when necessary. Updates PNR with current status of reservation and queues for appropriate follow-up. Utilizes IMS database and standard local procedures to verify potential fraud transactions.
The Investigator also made individual rulings for two Senior Fulfillment Representatives: Tanya Biesterveld and Shawn Simpson, and two Fulfillment Representatives: Deepak Kapoor, and Long Nguyen. CWA argued that these four employees have responsibilities which differed significantly from those of the other Fulfillment Representatives. The Investigator ruled that the four employees are not part of the Passenger Service craft or class and are ineligible, based upon her analysis of their evidence submitted, which included job descriptions. The Investigator found that Biesterveld and Simpson perform clerical tasks within the accounting department, and that Kapoor and Nguyen are "mail handlers who sort incoming mail . . . and deliver it to the TDS mail center."
B. There were no appeals of the Investigator's ruling on Fulfillment Representatives in general, but American appealed the Investigator's ruling that Biesterveld, Simpson, Kapoor, and Nguyen are ineligible. According to the Carrier, these four individuals share a work-related community of interest with other Passenger Service Employees in the TDS Department. The Carrier asserts that TDS processes all tickets for travel on American flights, as well as redeeming ticket vouchers, mileage awards, and promotional certifications. Other tasks performed by TDS include sorting and processing mail from customers, resolving credit card discrepancies, and recording revenue generated by ticket transactions, and American maintains that "[t]hese tasks are all inter-connected seamlessly," with Biesterveld, Simpson, Kapoor, and Nguyen as "part of this network."
CWA urges the Board to uphold the Investigator's ruling, arguing that these four Fulfillment Representatives do not have any customer contact and do not share a work-related community of interest with the other TDS employees, or with any of American's Passenger Service Employees. Instead, the Organization asserts that these individuals more properly belong to the Office Clerical craft or class. CWA cites the Board's decision in American Airlines, 6 NMB 661, 678 (1978), where the Carrier had argued that its "Clerical, Office and Passenger Service Employees are bound together because those employees handle the same documents and records for the same purposes, namely, the physical operation of the airline." The Board rejected that argument.
C. The Board repeatedly has stated that it makes determinations of eligibility within a particular craft or class based to a great extent upon a work-related community of interest. LSG Lufthansa Services, Inc., 25 NMB 96(1997). Atlantic Southwest Airlines, 23 NMB 23 (1995); America West Airlines, 22 NMB 54 (1994); Southwest Airlines, 20 NMB 116 (1992). In determining whether there is a work-related community of interest, the Board examines the actual duties and responsibilities of employees, and not merely to their job titles. USAir, 21 NMB 402 (1994); America West Airlines, 13 NMB 346 (1986); British Airways, 10 NMB 174 (1988); American Airlines, 10 NMB 26 (1982).
Section 5.1 of the Board's Representation Manual also provides guidance in this area, citing "general factors to be considered . . . including the functions, duties and responsibilities of the employees; the general nature of their work; and the extent of community of interest existing between job classifications."
The Carrier submitted a declaration from Sherri L. Turner, Manager of TDS, under whom the Fulfillment Representatives work. According to Turner, all "FRs work in the same area, and are subject to the same wage scale . . . and benefits." Attached to Turner's Declaration are job descriptions for the positions at issue. In describing the work performed by Biesterveld and Simpson, Turner stated these employees:
[R]eview and record all TDS ticket transactions, and prepare what is essentially an accounting report . . . which is forwarded to American's revenue accounting department. They typically progress from the Level 62 FR position to Level 65 positions at TDS or to positions with American's Reservations Department.
Employees Nguyen and Kapoor:
[A]re responsible for sorting incoming mail from customers and delivering it to the TDS mail center, where it is opened and then distributed to the Senior FRs for processing. They also, on occasion, are called upon to drop off at Dallas/Fort Worth International Airport . . . mail (including customer tickets) for Federal Express delivery.
Turner also stated that, "[w]ith very limited exceptions, all of the Level 62 FR's have direct contact with customers on a regular basis."
It would appear from a review of the evidence submitted that Biesterveld, Simpson, Nguyen, and Kapoor are "exceptions" in that they have little, if any, customer contact. An analysis of these individuals' actual job functions leads the Board to conclude that, despite their title, these four employees perform functions which are Office Clerical in nature. Therefore, they are not eligible.
A. Passenger Service Training/Coordinating Functions
During the investigation, CWA raised a number of individual challenges on which the Investigator made rulings. Six of these employees perform Passenger Service training or coordinating functions: Michael S. Badowski; John F. Flanagan, Jr.; Tracy C. Knoop; Joanne F. Leichter; Una M. Nowland; and Mary P. Wolfe.
The Investigator ruled these individuals ineligible because they "do not have passenger contact." American described these employees' functions as coordinating "a variety of training activities within the reservations department, including new hire training, 'new to function' training and recurrent training." According to American, these individuals retain their status as passenger service representatives.
B. The Carrier appealed the Investigator's ruling that employees who perform training functions are ineligible, asserting that this decision is "out of step" with the relevant NMB decisions. In support of its position, American cites Board determinations in which "personnel with training responsibilities" are included "in the same craft or class as those they train, provided they share a work-related community of interest." The decisions cited by the Carrier include USAir, Inc., 24 NMB 38 (1996) and Comair, 22 NMB 175 (1995). American asserts that the "Training Coordinators . . . do not perform actual training. . . . They coordinate training activities of various types, and work in the reservations centers. They interact regularly with passenger service agents, training instructors, and supervisors on all training issues."
In response, CWA maintains that the six individuals at issue do not share a community of interest with Passenger Service Employees. The Organization cites the Investigator's finding that the Training Coordinators' "responsibilities are purely administrative."
The decisions cited by the Carrier deal with the eligibility of individuals who, while they may perform specialized functions, also perform line work in the craft or class. In USAir, supra, the Training Instructors provided both classroom and on-the-job training, and at certain stations performed line functions. In Comair, supra, the Board found flight attendant instructors eligible because, inter alia, they flew the line. In contrast, in America West Airlines, 16 NMB 224 (1989), the Board excluded "CSR Trainers" from the craft or class of Flight Attendants, in the absence of evidence that they performed line functions.
In the present case, the record does not establish sufficient evidence that American's "Training Coordinators" perform Passenger Service functions. Therefore, the six individuals at issue are ineligible.
B. The Investigator did not rule on the eligibility of James Beaty, ruled Patricia O'Driscoll ineligible, and requested additional information of Karen Petroni. American asserts that Beaty is on leave of absence and should be eligible. The Carrier also appeals the Investigator's ruling that O'Driscoll is ineligible. According to American, O'Driscoll is on leave of absence and "she was not removed from service because of 'permanent disability.'" The Carrier also stated that Petroni has not accepted a different position and should remain eligible.
CWA asserted that Beaty had retired, that O'Driscoll was permanently disabled, and that Petroni is on "leave of absence." In support of its contentions, CWA provided declarations from other American employees. In response, the Carrier had provided company documents indicating that all three individuals are on leave of absence.
Section 5.306 of the Board's Representation Manual provides that employees on authorized leave of absence are eligible. This Section states, in part, "[w]here the question of leave of absence is contested, the [Investigator] should require supporting documents to verify that a bona fide leave of absence is in effect." The evidence submitted by CWA regarding Beaty and O'Driscoll is insufficient to override the evidence that these employees are on authorized leave of absence. Therefore, these two individuals are eligible. However, a review of the status changes provided by American indicates that Petroni has taken a position as a Customer Service Manager. Therefore, she is ineligible.
The Board upholds the Investigator's rulings that Provisional Employees and Fulfillment Representatives are ineligible, and that Sales and Clerical Associates, and LCD's and MDP's are eligible. The employees on leave of absence are also eligible.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Associate General Counsel
American Airlines, Inc.
1. In 1980, the cut-off date was changed to the last day of the last payroll period prior to the initial scheduling of the investigation. In 1989 the current practice of establishing the cut-off date as the last day of the last payroll period prior to the receipt of the application at the Board's offices was instituted. (Section 3.5 of the Board's Representation Manual.)