26 NMB No. 94
September 27, 1999
Kimberly K. Geariety, Esq.
William F. Mede, Esq.
Counsel for ERA Aviation
Owens & Turner, P.C.
1500 West 33rd Avenue, Suite 200
Anchorage, AK 99503
Mr. Daniel Repasky
IBEW Local 1547
3333 Denali Street
Anchorage, AK 99503
Re: NMB Case No. R-6695
Dear Ms. Geariety and Gentlemen:
This determination addresses ERA Aviation's September 16, 1999, appeal of Investigator Benetta M. Mansfield's eligibility rulings. For the reasons set forth below, the Carrier's appeal is denied.
On August 9, 1999, the Board received an application from the International Brotherhood of Electrical Workers (IBEW or Organization) covering the craft or class of Flight Attendants of ERA Aviation ("ERA" or "Carrier"). As a result of the investigation, the Board found a dispute to exist and authorized an election on August 16, 1999. Ballots were mailed on August 31, 1999, and the count is scheduled for September 28, 1999.
On August 17, 1999, Investigator Mansfield issued a letter to the participants informing them of the schedule for the election. She established August 24, 1999, as the deadline for challenges and objections, and August 31, 1999, as the response date. The Investigator's letter stated, in part, "challenges and objections must be supported by substantive evidence and argument."
By letter dated August 13, 1999, the IBEW challenged the eligibility of Brenda Mahar, Chief Flight Attendant, and Pam Parkes, Assistant Chief Flight Attendant.(1) The Organization asserted that these individuals "have authority to act in the interest of the employer with respect to scheduling, calling in employees for work, approval of overtime, discipline, and other functions that designate them as supervisors." The Organization did not provide any evidence in support of its position.
On August 31, 1999, the Carrier filed its response to IBEW's challenge. ERA argued that the Organization's challenge should be rejected because it was not supported by substantive evidence or argument. The Carrier also maintained that Mahar is not a management official because she has no independent authority to discharge or discipline, cannot authorize or grant overtime, and does not establish assignments. In support of its position, the Carrier provided affidavits from Carrier officials, excerpts from its policy manual, including job descriptions, and flight attendant schedules.
On September 3, 1999, the Investigator requested additional evidence from the Carrier. The Carrier complied with that request on September 9, 1999.
On September 13, 1999, the Investigator issued her rulings. The Investigator noted that as she "was aware of the IBEW representative's lack of knowledge of NMB procedures, she advised the IBEW that it needed to present substantive evidence . . . . The IBEW provided affidavits and documentary evidence to the Investigator on September 9, 1999."
The Investigator ruled that Mahar was ineligible as a management official. Among the factors cited in the ruling was evidence that Mahar "issues disciplinary notices under her signature," and "does not appear to be flying."
The Carrier appeals this ruling on both procedural and substantive grounds. First, ERA contends that the Investigator "inappropriately solicited" evidence from IBEW contrary to provisions of Sections 4.1 and 4.2 of the Board's Representation Manual. The Carrier alleges that the Investigator's conduct in this regard "casts doubt" on her "impartiality" as required by Section 2.1 of the Representation Manual.
The second basis for the Carrier's appeal is that Mahar is not a management official. According to ERA, Mahar is a first-line supervisor who does not exercise independent authority. The Carrier also asserts that Mahar "does fly when necessary."
Section 4.1 of the Board's Representation Manual provides, in part, that challenges and objections "must be supported by substantive evidence and argument." Section 4.2 of the Manual provides that it is within the mediator's discretion to set deadlines for challenges and objections. Section 2.1 of the Manual provides, in part,
During the processing of a representation case, the Investigator's function is to investigate any question concerning representation in accordance with the instructions of this manual and such directives as the Board may issue. . . . It is necessary that the investigation be conducted with extreme impartiality, thoroughness, and accuracy.
The cover page of the Representation Manual states:
This Manual provides general procedural guidance to the National Mediation Board's staff with respect to the processing of representation cases before the NMB. Such procedural guidance is not required by or subject to the Administrative Procedure Act. The provisions of this Manual are neither obligatory upon the Members of the Board nor do they constitute the exclusive procedure for the NMB's investigation of representation matters pursuant to the Railway Labor Act.
The Board has cited this provision frequently in finding that a variation in practice from the Manual does not constitute procedural error. For example, in Zantop International Airlines, 21 NMB 18 (1993), although the Carrier alleged that the Investigator did not follow the Manual, the Board found no basis for reconsideration. In Zantop, supra, the Board affirmed the policy set forth in Dalfort Corporation, 13 NMB 40, 43-44 (1985): "The Representation Manual is 'not a compilation of regularly promulgated regulations having the force and effect of law.' Hawaiian Airlines v. National Mediation Board 10 LRRM 3322, 24 (D. H[aw]-1979), aff'd without op, 659 F.2d 1088 (9th Cir. 1981), cert. denied, 456 U.S. 929 (1982)."
The Ninth Circuit's Order denying rehearing en banc is also noteworthy: "Appellant also argues that the Board failed to adhere to its own rules and regulations and that, therefore, it was deprived of due process. . . . [T]he Manual is merely an internal statement of agency policy. It creates no substantive rights." 109 LRRM 2936 (1981). See also Midway Airlines Corporation, 26 NMB 248 (1999), and Horizon Air, 14 NMB 413 (1987).
The Board finds the Carrier's arguments regarding the Investigator's alleged deviation from the Manual unpersuasive. The Investigator provided both participants with an opportunity to supplement their filings in order to conduct an impartial and thorough investigation. This variation from the Manual's procedural guidance does not provide a basis for overruling the Investigator.(2)
As to the substantive aspect of the Carrier's appeal, the Board also finds an insufficient basis to overrule the Investigator.
Mahar's duties as Chief Flight Attendant are described in the Carrier's General Operations Manual as follows:
According to ERA's Director of Operations, Danny Purvis, who is Mahar's supervisor:
Ms. Mahar does not have any independent authority to discharge and/or discipline employees. Instead, I expect Ms. Mahar to report to me or other ERA managers matters which she believes warrant discharge and/or discipline. Ms. Mahar can recommend discharge and/or disciplinary action to me or to Vice President for Fixed Wing Operations, Paul Landis . . . . Every disciplinary action, specifically discharge decisions require review by ERA's in-house legal counsel, Marcia Davis. Ms. Mahar's recommendations regarding lesser forms of disciplinary action are generally accepted and she is instructed to implement such disciplinary action. Ms. Mahar's recommendations regarding more severe disciplinary action like suspensions and discharge are considered.
Documents, provided by the Carrier in response to the Investigator's request, show that Mahar has signed off on disciplinary actions for Flight Attendants, albeit after meeting with management and counsel.
Although the Carrier asserts that Mahar "often flies during each month," the record establishes that Ms. Mahar does not bid a line. The record also establishes that Mahar is paid approximately 30% more than senior flight attendants. Further, there is evidence that Mahar has signed leave request forms, has issued memoranda directing Flight Attendants to follow certain procedures, and has awarded bids.
Section 5.312 of the Board's Representation Manual sets forth guidance for determining whether an individual is a management official 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 considers these factors cumulatively. Pan American World Airways, Inc., 5 NMB 112, 115 (1973). See also USAir, Inc., 24 NMB 38 (1996); Comair, Inc., 22 NMB 175 (1995); Challenge Air Cargo, 17 NMB 501 (1990); USAir, Inc., 17 NMB 117 (1990); and Tower Air, Inc., 16 NMB 338 (1989). In Tower, supra the Board found "Inflight Managers" were not management officials because they had no effective authority, including no effective authority to recommend discipline.
Generally, as in Tower, supra the Board finds that Flight Attendants alleged to be managers are actually members of the craft or class who bid the line. See, e.g., America West Airlines; 16 NMB 224 (1989); CCAir, Inc., 15 NMB 260 (1988); Southern Jersey Airways Inc., 13 NMB 404 (1986); and Horizon Air, 11 NMB 286 (1984). In contrast, the Board found in Westair Commuter Airlines, 15 NMB 213 (1988), that an individual who was "expressly delegated supervisory responsibilities over the flight attendants," and "exercised that authority by issuing memoranda to the flight attendants in her own name" was a management official.
In this case, as in Westair, supra, when the Board applies its policy and standards to the record Mahar is more than a first-line supervisor. Mahar does not bid the line, and she is paid a substantially more than employees in the craft or class. According to her job description, she has "authority and responsibility for the overall operation of the flight attendant/Inflight Services Department." Mahar also "is responsible for personnel record keeping" and "ensures that all flight attendants are properly performing their inflight duties." Most significantly, Mahar issues memoranda communicating and implementing Carrier policy, imposes discipline in lesser cases, and effectively recommends discipline in other cases. On at least one occasion Mahar awarded bid assignments. Based upon these cumulative factors, the Board finds that Mahar is a management official.
Brenda Mahar is ineligible because she is a management official. Her ballot, if cast, will not be counted. The count will take place as scheduled at 2:00 p.m., Tuesday, September 28, 1999.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
1. The Investigator ruled that Parkes was eligible. That ruling has not been appealed.
2. Even if none of the evidence submitted by the IBEW were considered, the Board's determination of Mahar's eligibility would remain the same based on the evidence submitted by the Carrier.