26 NMB No. 76
August 4, 1999
Mr. John J. Kerrigan
Transport Workers Union of America, AFL-CIO
80 West End Avenue
New York, NY 10023
Re: NMB Case No. R-6679
Sun Country Airlines, Inc.
Dear Mr. Kerrigan:
This determination addresses the appeal filed by the Transport Workers Union of America, AFL-CIO (TWU), of Investigator Benetta M. Mansfield=s eligibility rulings in NMB Case No. R-6679. For the reasons set forth below, the Investigator=s rulings are sustained.
On June 7, 1999, the TWU filed an application seeking representation of the craft or class of Dispatchers.
The Board assigned Benetta M. Mansfield to investigate. On June 23, 1999, the Board found a dispute to exist and authorized an election. Ballots were mailed July 13, 1999, and the count is scheduled for August 10, 1999.
On June 30, 1999, TWU sent the Investigator a letter challenging the List of Potential Eligible Voters contending that the names of the four Dispatch Leads should be added to the list because they work as needed at the Dispatch desk. Section 4.1 of the Board=s Representation Manual requires TWU to present substantive evidence to support this contention. TWU presented none.
On July 12, 1999, Sun Country Airlines, Inc. (Sun Country), responded opposing the eligibility of the four employees. Sun Country contended that these employees are Systems Operations Controllers (SOCs) who are management officials. In the alternative, Sun Country argued that if the SOCs are not management officials, they do not share a sufficient community of interest with the Dispatchers to be included in the craft or class. Sun Country presented substantive evidence to support its position.
Prior to issuing her ruling, the Investigator contacted TWU for evidence in light of Sun Country=s submission. TWU failed to respond. On July 20, 1999, the Investigator issued a ruling in which she concluded that the SOCs do not share a community of interest with the Dispatchers craft or class.
On July 26, 1999, the Board received anAappeal@ from TWU. The cover sheet stated, AIn accordance with your notice of July 20, 1999, we are sending the attached material. We did not send this material with the initial challenge because it was delayed in getting here.@ The submission included an attached letter from Thomas B. Lynch of TWU to a TWU official concerning the alleged duties of SOCs. There were documents attached to the letter. There were no affidavits included with the appeal.
On July 29, 1999, Sun Country opposed any appeal by TWU not only as being improper under Board procedure, but also as failing to meet the burden to overturn an investigator=s decision.
The Investigator based her rulings on a review of the evidence and arguments submitted by the Carrier. The evidence provided by Sun Country included a declaration from Gordon Rother, Director of Flight Control; Dispatch schedules; the job description for SOCs; and invoices and contracts entered into by SOCs. Under the job description, the SOCs have the following duties:
1) Manage the Sun Country System Operations Center, which includes overseeing Dispatch, Crew Scheduling, Maintenance Control and Customer Service, to insure coordination among all departments.
2) Apply extensive knowledge of airline operations, including a thorough understanding of FAR Part 121 Regulations as they pertain to Sun Country operations, to insure a safe and efficient airline operation.
3) Monitor the status of all current flights. Take corrective action as necessary.
4) Develop and implement alternate plans of action during abnormal operations and delay situations. Keep all operational areas within the airline up to date with the latest information concerning estimated departure times and possible aircraft substitutions.
5) Coordinate aircraft routing with the maintenance department to insure proper placement of aircraft for both planned and unplanned maintenance checks, taking into consideration all operational requirements.
6) Coordinate with the marketing and planning area to determine the feasibility of future operations.
7) Responds to sub-service requests. Enter into ACMI agreements with other air carriers maintaining the integrity of the Sun Country Airlines Schedules.
8) Perform any duties necessary to insure a safe, efficient, on-time airline.
The Declaration of Mr. Rother states that the SOCs are not Dispatch Leads and do not work at Dispatch desks. He further stated:
The primary responsibility of a systems operations controller is to manage the overall airline schedule integrity of Sun County and to exercise independent judgment when for whatever reason (albeit weather delay, crew-related problem, a
Mr. Rother also detailed the differences between Dispatchers and SOCs, including: 1) the different job functions; 2) the federal regulation and licensing of Dispatchers; and 3) the different schedules and different bases of pay for Dispatchers and SOCs.
Based upon the information before her, the Investigator concluded that the SOCs do not share a sufficient community of interest to vote in the Dispatcher craft or class.
In representation cases, the burden of persuasion required to overrule an Investigator=s preliminary determination rests with the participant appealing that ruling.
Section 4.6 of the Board=s Representation Manual states, in pertinent part:
Absent extraordinary circumstances, evidence submitted on appeal will not be considered by the Board unless it has been submitted to the Investigator initially. It is the responsibility of the submitter to demonstrate extraordinary circumstances when additional evidence is presented on appeal.
Here, the evidence submitted on appeal had a facsimile cover sheet that stated,AWe did not send this material with the initial challenge because it was delayed in getting here.@ However, the Investigator=s ruling states she contacted TWU and asked for evidence to support their contention that the four employees should be included in the craft or class. TWU neither responded nor claimed the inability to obtain timely substantive evidence. Moreover, TWU=s mere inability to obtain evidence for a timely submission to the Board is not an Aextraordinary circumstance.@
The Board has consistently ruled that absent extraordinary circumstances, additional evidence will not be considered on appeal. Aloha IslandAir, Inc., 25 NMB 290, 292 (1998); Long Island Rail Road, 24 NMB 664, 697 (1997); Union Pacific Railroad and Southern Pacific Railroad, 24 NMB 334, 337-8 (1997). Therefore, the evidence submitted on appeal by TWU will not be considered.
The Investigator=s rulings are sustained. The Board finds the Systems Operations Controllers are ineligible to vote in the Dispatcher craft or class. The count will take place as scheduled at 2 p.m., EDT, on Tuesday, August 10, 1999.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Luke Gomez, Esq.