The National Mediation Board (NMB) received two separate requests for the NMB's opinion of whether certain employees of Emery Worldwide Airlines (EWA) are subject to the Railway Labor Act (RLA or Act), 45 U.S. C. §§ 151-188.

I. PROCEDURAL HISTORY OF CJ-6671

The underlying NLRB proceeding involves a petition filed by the IBT, Local Union 500, to represent a unit of truck drivers employed by EWA at the Swedesboro, New Jersey, Priority Mail Processing Center (PMPC). A hearing was held before a National Labor Relations Board (NLRB) Region 4 Hearing Officer on February 11 and 12, 1999. At the hearing, counsel for EWA contended that the employees were subject to the RLA.

The Regional Director issued a Decision and Direction of Election on July 2, 1999. She ruled that the NLRB had jurisdiction over EWA.

EWA requested review before the NLRB, seeking to have the matter referred to the NMB for a jurisdictional determination. By a vote of the NLRB, the matter was referred to the NMB. The referral letter asked the NMB to consider the following issues:

• Advise whether the NMB has jurisdiction over the employees at issue.
  
  
• Provide the NLRB with the NMB's views of the Regional Director's findings and analysis, particularly with respect to the application of Trans World Airlines, 211 NLRB 733 (1974) for the proposition that there must be a direct connection between the work involved and the transportation activities covered by the RLA.
  
  
• Address whether changes in corporate structure are dispositive of jurisdiction.

See letter dated August 26, 1999, from Solicitor Higgins, NLRB, to NMB Chief of Staff Stephen E. Crable.

II. PROCEDURAL HISTORY OF CJ-6672

IBT, Local Union 404, filed an unfair labor practice charge in NLRB Region 1, alleging that EWA violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it discharged employee Frederick Haska on October 29, 1998, due to his union activities. At that time, Haska was active in an IBT organizing drive of the truck drivers and mail sorters at EWA's Springfield, Massachusetts, PMPC. During the unfair labor practice investigation, EWA asserted that it is subject to RLA, not NLRA, jurisdiction. EWA and IBT submitted position statements regarding jurisdiction to the NLRB.

The NLRB first referred this matter to the NMB on July 11, 1999. Subsequently, EWA requested NLRB review of the case before Region 4. In a letter dated July 26, 1999, the NLRB withdrew the referral of this matter from the NMB, reserving the option to resubmit it at a later date. On September 24, 1999, the NLRB resubmitted the matter for an opinion. The referral asks the NMB to answer the same inquiries as in 4-RC-19619.

EWA and IBT have submitted statements and documents concerning their positions in these matters.

III. ISSUES FOR HEARING

The NMB concludes that it is appropriate to hold a hearing on the issues submitted to the NMB by the NLRB. Specifically, the hearing will address the issues below as they relate to the NMB's jurisdiction:

• Whether there is statutory support for the proposition that there must be a direct connection between the work involved and the transportation activities covered by the RLA?
  
  
• Whether EWA and/or its parent corporation made changes in corporate structure to evade NLRA jurisdiction? If so, are such changes dispositive of RLA jurisdiction?

NOTICE is given that a hearing of not more than two days will be held before Senior Hearing Officer Benetta M. Mansfield at the Board's offices in Washington, DC, on the two issues in the preceding paragraph only.

The Senior Hearing Officer will be guided in part by the NMB Representation Manual and relevant NMB decisions concerning NMB jurisdiction.

IV. PRE-HEARING CONFERENCE

All participants are requested to notify Senior Hearing Officer Mansfield in writing no later than 4 p.m., EST, on January 7, 2000, of the names of the individuals who will be attending the hearing, either as counsel or witnesses.

A pre-hearing conference will be held commencing at 10 a.m., EST, on January 11, 2000, at the Board's offices located at 1301 K Street, NW., Suite 250 East, Washington, DC. At the pre-hearing conference, any participant providing oral testimony must submit the name of each witness and a summary of his or her anticipated testimony. Any exhibits that will be introduced through the witness must accompany the summary witness statement. Pursuant to Section 1.302 of the NMB Representation Manual, these submissions must comply with all the simultaneous service requirements.

V. HEARING

The hearing will commence at 10 a.m., EST, on January 20, 2000, at the Board's offices and conclude not later than the close of business on January 24, 2000. Attendance at the hearing is limited to representatives and witnesses of the EWA and the IBT, as well as designated NMB employees.

The order for the presentation of testimony during the hearing is as follows:

• EWA;
• IBT;
• Rebuttal by the EWA; and
• Rebuttal by the IBT.

At the hearing, the witnesses will be made available for direct and cross-examination. All participants are informed that, if necessary, the Senior Hearing Officer will limit the amount of time for questioning of any witness in the interest of providing "for the proper and expeditious conduct of this proceeding" and make other procedural and evidentiary rulings as necessary.

VI. POST-HEARING SUBMISSIONS

If the participants desire to make post-hearing submissions in addition to the information that is already part of the record in these cases, EWA and IBT may do so no later than 4 p.m., EST, on January 31, 2000.

All participants, individuals, and organizations are hereby notified that any inquiries and submissions, whether written or oral, concerning the above-noted application and this Notice must be directed to Senior Hearing Officer Mansfield, National Mediation Board, Washington, DC 20572.

The Senior Hearing Officer is delegated the authority to provide for the proper and expeditious conduct of this proceeding.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable
Chief of Staff

Copies to:

Richard C. Cohen, Esq.

Mr. Ray Benning

Roland P. Wilder, Esq.

Patrick J. Szymanski, Esq.

Mr. Roger Piazza

Harry A. Rissetto, Esq.

Sheldon M. Kline, Esq.

Bernard P. Jeweler, Esq.

Mark M. Stubley, Esq.

Marshall Babson, Esq.

Lewis T. Smoak, Esq.