In the Matter of the
Application of the
alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended
involving employees of
|26 NMB No. 41
CASE NO. R-6666 (FILE NO. C- 6637)
FINDINGS UPON INVESTIGATION- DETERMINATION OF CERTIFICATION (Case No. R-5846)
The Air Line Pilots Association (ALPA) filed an application pursuant
to Procedures for Handling Representation Issues Resulting From
Mergers, Acquisitions or Consolidations in the Airline Industry, 14
NMB 388 (1987). ALPA has alleged that Mountain Air Express
(Mountain Air) has merged into Air Wisconsin Airlines Corporation
(Air Wisconsin). This matter was assigned National Mediation Board
(NMB) File No. C-6637.
In NMB Case No. R-5846, ALPA was certified to represent the craft
or class of Pilots & Co-Pilots on Air Wisconsin. Air Wisconsin, Inc.,
16 NMB 249 (1989). ALPA requests that this certification be
extended to cover the Pilots & Co-Pilots formerly employed by
Mountain Air. The Pilots & Co-Pilots at Mountain Air were not
represented by any individual or labor organization.
The NMB's records indicate that other crafts or classes on Air
Wisconsin are represented by labor organizations. The Transport
Workers Union of America (TWU) is the certified representative of
Dispatchers pursuant to Case No. R-5959. Air Wisconsin, Inc., 17
NMB 278 (1990). The Association of Flight Attendants (AFA)
represents Flight Attendants as a result of the certification in Case No.
R-5555. Air Wisconsin, Inc., 12 NMB 243 (1985). According to the
certification in Case No. R-4512, the International Association of
Machinists and Aerospace Workers (IAM) is the certified
representative of Clerical, Office, Fleet and Passenger Service
Employees. The IAM is also the certified representative pursuant to
Case No. R-4115 of Mechanics and Related.
None of the Mountain Air employees were represented by any labor
organization or individual.
In response to the Board's request, Air Wisconsin submitted
information on October 1, 1998. ALPA and the other organizations
had until October 30, 1998, to respond. None of the organizations
Are Air Wisconsin and Mountain Air operating as a single
transportation system? If so, what is the representation consequence
of the merger on ALPA's certification in Case No. R-5846?
ALPA contends that Mountain Air has merged into Air Wisconsin.
Air Wisconsin agrees with ALPA and asserts that Mountain Air
merged into Air Wisconsin on June 30, 1998.
FINDINGS OF LAW
Air Wisconsin is a common carrier as defined in 45 U.S.C. § 181.
ALPA is a labor organization and representative as provided by 45
U.S.C. § 151, Sixth and § 152, Ninth, of the Act.
45 U.S.C. § 152, Fourth, gives employees subject to its provisions "the
right to organize and bargain collectively 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."
45 U.S.C. § 152, Ninth, provides that the Board has the duty to
investigate representation disputes and to designate who may
participate as eligible voters in the event an election is required. In
determining the choice of the majority of employees, the Board is
"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 by the employees
without interference, influence or coercion exercised by the carrier."
STATEMENT OF FACTS
On March 19, 1998, Air Wisconsin submitted a transition plan to the
Federal Aviation Administration (FAA) for approval of the merger of
Mountain Air into Air Wisconsin. On June 26, 1998, the FAA issued
new operation specifications allowing Air Wisconsin to operate the
Dornier 328 aircraft formerly flown by Mountain Air.
Upon Air Wisconsin's acquisition, Mountain Air's aircraft were
repainted in the United Express livery. Mountain Air logos and
markings were also removed from the equipment and replaced with
those of United Express or Air Wisconsin. The small decal on each
former Mountain Air aircraft that stated "Operated by Mountain Air
Express, Inc." has been replaced with one that states "Operated by Air
Wisconsin Airlines Corporation." Use of the corporate insignia and
logos of Mountain Air Express has been discontinued. While
Mountain Air still exists as a corporation, it no longer has an airline
operating certificate and no longer conducts business as an airline.
The labor relations and personnel functions for the former Mountain
Air employees are administered by Air Wisconsin's Employee
Relations/Personnel Department which reports to the Executive Vice
President Administration and General Counsel.
On March 18, 1998, Air Wisconsin entered into two merger transition
agreements with the IAM, one covering Mechanics and Related
Employees and the other covering Clerical, Office, Fleet and
Passenger Service Employees of Mountain Air. On April 29, 1998,
AFA and Air Wisconsin entered into a merger transition and fence
agreement. At the time of the operational merger on June 30, 1998,
Air Wisconsin had approximately 147 Mechanics and Related
Employees, 713 employees in the Clerical, Office, Fleet and
Passenger Service Employees(COFPS) craft or class, 267 Pilots and
Co-Pilots, and 189 Flight Attendants. Mountain Air had fourteen
mechanics, sixty-seven COFPS employees, seventy-nine pilots, and
thirty-three Flight Attendants.
Flights formerly operated by Mountain Air are operated by Air
Wisconsin and held out to the public and marketed as United Express
flights. Air Wisconsin Pilots, Flight Attendants, and Customer Service
Agents wear uniforms that are standard among United Express
carriers. After Air Wisconsin's acquisition, Mountain Air began
flying as United Express. Mountain Air employees began wearing the
United Express uniforms. Prior to Air Wisconsin's acquisition,
Mountain Air was flying as an independent airline under a code
sharing agreement with Western Pacific Airlines.
I. The Board's Authority
Section 2, Ninth of the Act, 45 U.S.C. § 152, Ninth, authorizes the
Board to investigate disputes which arise among a carrier's employees
over representation and to certify the duly authorized representative of
such employees. The Board has exclusive jurisdiction over
representation questions under the Railway Labor Act. Switchmen's
Union v. National Mediation Board, 320 U.S. 297 (1943); General
Committee of Adjustment v. M.K.T. Railroad, 320 U.S. 323 (1943). (1)
II. Single Transportation System
In TWA/Ozark, 14 NMB 218 (1987), the Board enunciated factors
which will be examined to determine whether carriers operate or will
operate as a single transportation system.
The following factors were cited by the Board as indicia of a single transportation system:
[W]hether the two systems are held out to the public as a single
carrier. We recognize that there may be differences between two
carriers' intent to hold themselves out to the public as a single carrier
and the public's perception of whether there is a single system. That is
why the Board looks into such practical considerations as whether a
combined schedule is published; how the carrier advertises its
services; whether reservation systems are combined; whether tickets
are issued on one carrier's stock; if signs, logos and other publicly
visible indicia have been changed to indicate only one carrier's
existence; whether personnel with public contact were held out as
employees of one carrier; and whether the process of repainting
planes and other equipment, to eliminate indications of separate
existence, has been progressed.
Other factors investigated by the Board seek to determine if the
carriers have combined their operations from a managerial and labor
relations perspective. Here the Board investigates whether labor
relations and personnel functions are handled by one carrier; whether
there are a common management, common corporate officers and
interlocking Boards of Directors; whether there is a combined
workforce; and whether separate identities are maintained for
corporate and other purposes.
TWA/Ozark, supra, at 236.
In the present case, there is little doubt that Mountain Air has merged
into Air Wisconsin. Former Mountain Air aircraft are operated by
Wisconsin Air. Mountain Air is not holding itself out to the public as
a separate entity. Mountain Air flights are operated by Air
Wisconsin. Labor relations and personnel functions for Mountain Air
are handled by Air Wisconsin. The labor organizations on Air
Wisconsin represent, pursuant to fence agreements, the former
employees of Mountain Air.
Mountain Air employees wear United Express uniforms like Air
Wisconsin employees. Mountain Air logos and markings were
removed and replaced with those of United Express or Air Wisconsin.
The Mountain Air corporate insignia and logos have been
discontinued. For these reasons, the Board finds that Mountain Air
has merged into Air Wisconsin.
III. Representation Consequences
ALPA's certification in NMB Case No. R-5846 is extended to cover
the former Pilots and Co-Pilots at Mountain Air. This outcome is
consistent with the NMB's merger procedures. Airline Merger
Procedures,14 NMB 388 (1987). Here, there are no certifications on
the acquired carrier, Mountain Air. The number of Pilots and
Co-Pilots at Mountain Air is not comparable to the number of
employees in that craft or class at Air Wisconsin. Therefore, the
existing certification at issue on the surviving carrier, Air Wisconsin,
has system-wide applicability immediately.
Based upon the facts and circumstances of this case, the Board finds
that Mountain Air has merged into Air Wisconsin and constitutes a
single transportation system.
The certification in Case No. R-5846 is, therefore, extended to cover
the former Pilots of Mountain Air.
File No. C-6637 is converted to NMB Case No. R-6666 and closed.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
1. See also Association of Flight Attendants v. Delta Airlines, Inc.,879 F.2d 906, 912 (D.C. Cir. 1989); cert. denied, 494 U.S. 1065 (1990); Air Line Employees Ass'n. v. Republic Airlines, Inc., 798 F.2d 967, 968-969 (7th Cir. 1986); International Brotherhood of Teamsters v. Texas International Airlines, Inc., 717 F.2d 157, 159 (5th Cir. 1983); Air Line Pilots Ass'n v. Texas Int'l Airlines, Inc., 656 F.2d 16, 23-24 (2d Cir. 1981);Brotherhood of Ry. Clerks v. United Airlines, Inc., 325 F.2d 576 (6th Cir. 1963), cert. denied, 379 U.S. 26 (1964).