In the Matter of the
Applications of the
alleging representation disputes pursuant to Section 2, Ninth, of the Railway Labor Act, as amended
involving employees of
27 NMB No. 37
CASE NOS. R-6661 and R-6662
This decision determines the jurisdictional issue raised by DalFort Aerospace, L.P. (DalFort) on May 6, 1999. For the reasons set forth below, the Board finds that DalFort and its employees continue to be subject to the Railway Labor Act (RLA or Act). Accordingly, the Board certifies the International Brotherhood of Teamsters (IBT or Organization) as the representative of DalFort's Mechanics and Related Employees and Stock Clerks.
On February 16, 1999, the Board received an application from the Committee for a Better DalFort (CBD) covering DalFort's "Aircraft Mechanics and Related," "Refuelers and Cleaners (Janitors)," "Stock Clerks," and "Card Booth Clerks." This application was assigned NMB File No. CR-6650 and Benetta M. Mansfield was assigned as the Investigator.
The investigation established that the application covered two crafts or classes, Mechanics and Related Employees and Stock Clerks. CR-6650 was docketed as Case No. R-6661 (Mechanics and Related) and Case No. R-6662 (Stock Clerks). The investigation established further that these employees were represented by the IBT pursuant to Board certifications in Case No. R-5586 and Case No. R-6383.
On March 15, 1999, the Board found disputes to exist and authorized elections. Ballots were mailed April 6, 1999, and the counts took place on May 4, 1999. In R-6662, seven of the eleven eligible voters cast valid ballots for IBT. In R-6661, ninety-four of the eligible voters cast valid ballots for IBT, and eighty-eight cast valid ballots for CBD.
On May 6, 1999, DalFort filed a letter with the Board raising the issue of RLA jurisdiction for the first time, asserting that the company was neither owned nor controlled by a carrier or carriers. On May 7, 1999, the IBT responded that DalFort's submission was untimely.
The Board established a schedule for investigation of the jurisdictional issue on May 12, 1999. DalFort, CBD, and the IBT filed position statements in May, June, and July, 1999.(1) After review of the position statements, the Board determined that further investigation was necessary. Therefore, on August 31 and September 1, 1999, Investigator Mansfield conducted an on-site investigation.(2)
Is the jurisdictional challenge timely? Is there sufficient control exercised by a carrier or carriers to render DalFort and its employees subject to the RLA?
DalFort contends that its jurisdictional challenge was timely, and cites several Board determinations in support of its position.
DalFort argues that while the nature of the work of its employees is traditionally performed by airline employees, the company is neither a carrier, nor directly or indirectly owned or controlled by a carrier. DalFort states that it hires, fires, and disciplines, and supervises its own employees, determines wages, benefits and working conditions, and provides its own training. In support of its position, DalFort provided affidavits from company managers, copies of contracts with carriers and non-carriers, and other company documents.
CBD also argues that DalFort is not a carrier. According to CBD, "DalFort is a repair station" solely responsible for the control of its employees and for determining wages and working conditions.
Citing Sections 3.4 and 4.2 of the Board's Representation Manual, IBT maintains that DalFort did not file a timely jurisdictional challenge.
The Organization also argues that DalFort and its employees are controlled by air carriers, and are, therefore, under the RLA. According to the IBT, carrier representatives deal directly with DalFort supervisors and mechanics to ensure that work is performed on time. The IBT also asserts that DalFort provides the carrier representatives with on-site offices and uses carrier parts in aircraft repair. The Organization further contends that certain carrier representatives monitor and approve the work. In certain instances, according to IBT, DalFort employees are disciplined in response to complaints from carrier representatives. In other instances, according to IBT, carriers select particular DalFort employees to work on their aircraft. The Organization disputes DalFort's assertions that the company performs work pursuant to its own procedures. The IBT supports its arguments with affidavits from DalFort employees.
FINDINGS OF LAW
Determination of the issues in this case is governed by the RLA, as amended, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:
Section 181 of the RLA extends coverage to "every common carrier by air engaged in interstate or foreign commerce . . . and every air pilot or other person who performs any work as an employee or subordinate official of such carrier or carriers, subject to its or their continuing authority to supervise and direct the manner of rendition of his service."
IBT and CBD are labor organizations and/or representatives as provided by 45 U.S.C. § 152, Ninth.
STATEMENT OF FACTS
DalFort operates an aircraft repair facility in Dallas, Texas, which it acquired from its former subsidiary, Braniff Airlines. In 1988, DalFort divested itself of Braniff. In 1997, DalFort Aviation was acquired by Singapore Technologies Aerospace and re-named DalFort Aerospace. Singapore Technologies Aerospace, a subsidiary of a foreign corporation, specializes in maintenance, modification and repair of airframe, engines, and systems for military and commercial aircraft. It is not an air carrier.
DalFort provides aircraft repair service pursuant to Federal Aviation Administration (FAA) certification. DalFort has contracts with several air carriers, including Federal Express and Southwest Airlines. DalFort also contracts with Triton Aviation Services Limited, an airline leasing company.
In general, the carriers provide the parts which DalFort uses to make repairs. Pursuant to contract, Federal Express and Southwest have on-site representatives at the hangar where DalFort does overhaul, repair, and modification of aircraft. The offices for the on-site representatives are windowed and directly above the hangar-floors. The on-site representatives also have podium stations on the hangar floor. DalFort also works on aircraft components for carriers in the shops, (e.g. paint, seat repair, etc.) on a piece-work basis rather than term repair contract.
DalFort provided affidavits from several management officials. According to the May 6, 1999, affidavit from Richard Zimmerman, former Vice-President Operations,(3) DalFort hires, supervises, and trains its own employees. Zimmerman also states that DalFort is an independent contractor which controls its own budget and expenditures and "decides all personnel matters, including assignment of crews and rates of pay and benefits."
In a subsequent Zimmerman affidavit, he states that only DalFort supervisors or managers have control over DalFort employees.
Customers who have aircraft or components at DalFort for repair work are authorized to observe the work in progress. A few of the customers actually maintain regular staffs . . . to monitor the . . . work and to review appropriate paperwork. These customer staff members do not supervise, direct or control in any fashion the way work is done. If a customer agent observes a DalFort employee doing anything that will cause "immediate" harm to personnel or damage to property, or if it is noted that work is not being done in accordance with approved procedures, the agent is obliged to advise the employee or the supervisor if there is enough time. If the customer agent notices an act or procedure that the agent deems "potentially" unsafe or inappropriate or unauthorized, the agent may advise the employee but is to give that information to DalFort management, and DalFort personnel will take any action it deems fit, including no action at all.
According to Zimmerman, DalFort employees perform work pursuant to FAA-approved procedures outlined in carrier maintenance manuals. When a carrier requests that DalFort employees complete FAA-required paperwork, and training is required to complete the paperwork, the carrier will train the DalFort trainer who, in turn, trains the DalFort employees. Zimmerman also states that, although DalFort has the sole authority over its employees, if a carrier requests that a particular employee not work on its aircraft, "that request may possibly be accommodated." Also, according to Zimmerman, "DalFort invites anyone, including carrier customers, to make recommendations for a potential employee."
Merrill Woods, Manager-Component Maintenance, submitted an affidavit stating that in his area many customers do not send representatives to DalFort. According to Woods, customers who send representatives may observe, but do not direct, the work.
Dean Holm, Manager-Planning, testifies that each carrier has an FAA approved planned maintenance program which "becomes the official maintenance program for that aircraft and must be followed by any maintenance provider, whether it is the carrier itself or an outside entity." Holm states that while carriers contract with DalFort to provide routine maintenance checks, sometimes other work may become necessary. In those instances, problems are reported to the customer who will determine whether or not to repair the problems. Holm states that usually the repairs recommended by DalFort's mechanics and inspectors are performed so DalFort will declare the aircraft airworthy.
Holm further states that all work is done in accordance with contracts or manuals:
If the operator's manual does not fully describe the procedures to make a repair or inspection, then DalFort can use its own procedures that have been previously approved by the FAA. Even when using operator supplied manuals, DalFort is free to use its own procedures in accomplishing the task in regards to timing and sequence and methods. In effect, the customer can negotiate to have work done, but DalFort is solely responsible to accomplish the work and the customer cannot control how the work is done.
Stephen M. T. Lim has been the President of DalFort Aerospace since 1997. Lim testifies that Federal regulations require independence between carriers and repair stations, and that only DalFort controls the work performed by its employees. Lim states that DalFort customers contractually are allowed to observe and inspect work. According to Lim, customers may request that work be re-done but cannot direct work to be re-done. Lim admits "[o]n occasion, even though it is felt the original work may be satisfactory, some rework may be done for the sake of customer relations. It is important to keep the customer satisfied . . . ." Lim also states that customers furnish parts so that DalFort does not need to maintain an "extensive and expensive" parts inventory. Those customers who provide their own parts receive lower contract prices.
Jason Teague is DalFort's Senior Director-Technical Operations. Teague describes the activities of the customer representatives as including: walking through the hangar and observing the work; on occasion, observing the work in the shops; checking the routine and non-routine work cards for completeness; and conferring with management personnel on any perceived problems. Similar to his colleague, Teague asserts that DalFort supervises and directs the work. According to Teague, if a customer representative believes work is done improperly, the representative deals with DalFort management. Teague denies the IBT's allegation that DalFort permits carriers to select the mechanics who work on their aircraft.
Chris Walker, Director-Business Development, is responsible for the negotiation and preparation of customer contracts. Walker states that the contractual language shows DalFort's independent status. According to Walker, DalFort's mechanics and inspectors are the "checks and balances" necessary to make the inspection program work, because otherwise "the carrier could control the condition of the aircraft without careful review. This could lead to abuse." Walker asserts that the contracts provide for DalFort's liability and warranties. Also, customers may "review the training records of employees working on the customer's aircraft to be satisfied that the employees are qualified . . . ."
The IBT has submitted affidavits from DalFort employees as well as copies of company documents.
According to a DalFort Inspector, Federal Express representatives "police the work performed on its aircraft." This individual states that the Federal Express representative may speak directly with the mechanic or supervisor if he sees a problem. In addition, the Inspector asserts that Federal Express representatives have directly "confronted" him to dispute the "write-ups" produced during aircraft inspections. Similarly, according to the Inspector, Southwest representatives deal directly with lead mechanics if supervisors are unavailable. In addition, this individual states that Southwest provides DalFort with a direct phone line to its maintenance department to expedite delivery of Southwest parts to DalFort. According to the inspector:
In actual practice, no mechanic works on an aircraft unless that Carrier's representative approves of the mechanic. . . . Carrier representatives will also instruct DalFort supervisors that a mechanic should be disciplined for negligent work on its aircraft . . . . The Carriers' representatives will ensure that DalFort is training the mechanics on a schedule satisfactory to the Carrier. For example, FedEx requires that DalFort conduct training at least once a week in FedEx's procedures. In addition, all employees are required to go through special training for the repair paperwork procedures of each Carrier. Carrier representatives perform this training until DalFort's trainers are sufficiently knowledgeable about the procedures to take over the training.
The Investigator interviewed fifteen employees and four customer representatives. Four of these individuals were interviewed at IBT's request. These witnesses testified that carrier representatives exercise significant control over DalFort employees. Three of the four individuals cited examples of carrier representatives demanding discipline of DalFort employees. According to these individuals, the Federal Express and Southwest representatives have overridden the work orders, and have succeeded in having employees re-assigned or suspended. One individual cited an instance where a carrier representative directed that a job either be completely re-done, or that the person assigned be removed. The work was re-done.
Two IBT witnesses provided another example of carrier control. Allegedly a carrier representative requested that a mechanic be removed from a particular job and when the DalFort supervisor refused, the carrier representative went to a higher level of DalFort management and the mechanic was removed.
One of the individuals testified that, when he refused to do something a carrier representative requested because it was "illegal," DalFort initiated disciplinary action against him and he was re-assigned.
The investigator also interviewed other employees, including some who were randomly selected when the Investigator was on site.
Employee "A" states that when a carrier representative wants something done, it is done.
Employees "B" and "C," both of whom are long-term DalFort employees, state that they received specific written instructions from the carrier representative, and that the carrier representative inspected parts and wrote a list of items needing correction. Neither could recall a carrier representative seeking discipline or replacement of a DalFort employee.
Employee "D" who has worked for DalFort for several years, did not recall any instance where an individual was removed from a job, but cites instances where carrier representatives requested certain individuals for particular jobs.
Employees "E," "F," and "G" state that, over the several years they have been with DalFort, carrier representatives have directed their work. None of the three were aware of employee removal or discipline at carrier request.
Employee "H" testifies that certain mechanics in the parts department are dedicated to specific carriers. Employee "I" stated that the Federal Express representatives monitor the work, complain to DalFort supervisors, or speak to mechanics and direct them to re-do work. Employee "I" and another individual state that the Federal Express representatives refused to allow a former Federal Express employee to work on their aircraft.(4) Employee "I" states that another employee was given a supervisory position at Federal Express' request.
During the Investigator's interviews, two DalFort supervisors testified that the carrier representatives never speak to mechanics, nor do they request discipline or removal. However, one of the supervisors is aware of the instance involving the former Federal Express employee. In addition, the supervisor states that mechanics do interact directly with carrier representatives if there are questions about the work. The supervisor states further that he never disagrees with the carrier representatives, but instead does what they want.
The Investigator interviewed two on-site representatives from Federal Express, one from Southwest, and one from Triton. The Triton representative, Richard Zimmerman, is the former Director of Operations for DalFort.
One of the Federal Express representatives states that he has directly interacted with DalFort mechanics, although he denies ever requesting removal from a job. The representative states he has informed employees directly of errors or changes if he is in their vicinity, and he expects his changes to take place. He states that his "job is to do surveillance, and that he has the final say."
The second Federal Express representative states that he works through DalFort managers. This individual states that he has expressed dissatisfaction and issued directives through these channels.
The Southwest representative maintains that he only deals with DalFort supervisors, and does not directly monitor the work.
Zimmerman states that the customer representatives never interact with mechanics, but admitted that one of the Federal Express representatives was told to stop going around the DalFort inspectors. Zimmerman admits further that he reviews work once or twice a day.
The Board reviewed copies of the contracts between DalFort and its customers.
Article 5, "Standards of Performance," in the Federal Express contract, provides: " The Contractor will remove any of its employees who, in the reasonable opinion of Federal, engage in improper conduct or are in any manner not qualified to perform the services assigned to them."
Article 8.2, "Inspections and Tests," in the Southwest contract, provides:
Customer shall have the right, but not the obligation, to observe DalFort's performance of the inspections and tests and shall have the right, at all reasonable times, upon reasonable advance notice to DalFort, to inspect the Aircraft, the Aircraft maintenance log and maintenance records, FAA forms and records and all other documentation pertaining to the Aircraft or the performance of the Services, provided that CUSTOMER shall not interfere with DalFort's performance of its obligations under this agreement.
Article 18.1 of the contract with Southwest provides, in part:
During the period the Aircraft is in the Facility, CUSTOMER shall assign and designate one or more person ("On-Site Representative") to oversee DalFort's performance of the Services. The On-Site Representative shall be fully knowledgeable and experienced with CUSTOMER'S requirements. CUSTOMER'S on-site representative shall have the authority to exercise or authorize any ASRs, [Additional Services Requests] overtime, Part requisitions, purchase orders, to render final decisions as to the correction or other disposition of non-routine items and accept performance of the Services to be performed pursuant to the Work Authorization Form.
The identical language is contained in DalFort's contracts with Triton and Southeast Airlines.
DalFort's contract with Triton also provides:
Each party represents that it has or will obtain appropriate agreements with its employee or others whose services it may require, sufficient to enable it to comply with all the provisions of this Agreement. DalFort is an independent contractor and personnel used or supplied by DalFort in performance of this agreement shall be and remain employees or agents of DalFort. DalFort shall have the sole responsibility for supervision and control of its personnel.
Timeliness of DalFort's Jurisdictional Challenge
The IBT argues that DalFort's objection to RLA jurisdiction was untimely. According to the Organization, Section 3.4 of the Board's Representation Manual requires raising challenges to statutory jurisdiction "at the earliest possible stage of the investigation." The Organization asserts further that Section 4.2 of the Board's Representation Manual precludes Board consideration of DalFort's submission. DalFort cites various Board determinations in support of its position that this issue is considered timely. In Arkansas Midland Railroad Company and Comair, Inc., 23 NMB 260 (1996), the Board continued its investigation in a case which it had previously closed, after discovering late-delivered ballots. In AFM Corporation, 11 NMB 163 (1984), the issue of jurisdiction was not raised until late in the investigation.
Although Section 4.2 of the Board's Representation Manual provides that challenges and objections must be filed by the deadline established by the Investigator, the Board will consider the issue. The Board's previous assertion of jurisdiction over DalFort was based upon factual circumstances which are no longer extant. Accordingly, the Board needs to determine whether the factual changes have resulted in the loss of statutory jurisdiction.
The Board asserted jurisdiction over DalFort and its employees in numerous decisions between 1985 and 1988, based upon DalFort's affiliation with Braniff. Dalfort Aviation, 13 NMB 171 (1986); Dalfort Corporation, 13 NMB 50 (1985); 13 NMB 45 (1985); 13 NMB 40 (1985). Although the Board continued to assert jurisdiction subsequent to 1988, jurisdiction was never challenged. Dalfort Corporation, 16 NMB 275 (1989); 16 NMB 271 (1989).
In jurisdictional determinations, if the company at issue is not a carrier, the Board applies a two-part test. First, the Board determines if the nature of the work performed is that traditionally performed by employees of carriers. Second, the Board determines whether the employer is directly or indirectly owned or controlled by, or under common control with, a carrier or carriers. Both parts of the test must be satisfied for the Board to assert jurisdiction. LSG Sky Chefs, Inc., 27 NMB 55 (1999); North Carolina State Ports Authority, 26 NMB 305 (1999); Evergreen Aviation Ground Logistics Enterprises, Inc., 25 NMB 460 (1998).
Traditional Airline Work
Both DalFort and the IBT agree that aircraft repair is work traditionally performed by employees in the airline industry. United Air Lines, Inc., 22 NMB 12 (1994); Federal Express Corp., 20 NMB 360 (1993); Northwest Airlines, Inc., 18 NMB 357 (1991); United Airlines, Inc., 6 NMB 134 (1977). Accordingly, the first part of the two-part is met.
Carrier Control over DalFort
The only question remaining is whether DalFort's carrier customers exercise direct or indirect control over the company. In examining control, the Board focuses on, inter alia, the carriers' role in the entity's daily operations, and the entity's employees' performance of services for the carrier. LSG Sky Chefs, supra; Sky Valet, Commercial Aviation Services, of Boston, Inc., and C and H Air Corporation, 22 NMB 230 (1995). The Board also examines the carriers' role in employing and terminating employees, the degree to which the carriers supervise the entity's employees, the degree to which the employees are held out to the public as carrier employees, and the degree of carrier control over employees' training. SAPADO I (Dobbs International Services, Inc.), 18 NMB 525, 530 (1991).
In Sky Chefs, Inc., 15 NMB 397 (1988), the employees prepared food for carrier flights according to carrier instructions contained in manuals, relayed via computer, or received directly from carrier representatives. The Board asserted jurisdiction because the air carrier effectively recommended discipline and termination and exercised control over certain employee work assignments.
In International Total Services, 26 NMB 72 (1998), the carriers did not control hiring or firing employees. Nevertheless, the Board found the company subject to RLA jurisdiction based, in part, on the fact that carriers could request employee re-assignment and played a significant role in staffing and other working conditions. See also Quality Aircraft Services, Inc., 24 NMB 286 (1997).
Although DalFort is not owned by a carrier, it continues to be subject to the RLA by virtue of the control exercised by air carriers. There is substantial evidence contained in the contracts, employee statements, and management affidavits, to support this finding. For example, although DalFort hires and fires its own employees, carriers can effectively recommend employee assignments, reassignments and by DalFort's admission, recommend employees to hire. Carriers effectively direct DalFort's mechanics to re-do work. On some occasions, carrier representatives interact directly with DalFort mechanics. DalFort employees frequently use carrier parts to make repairs, and follow carrier manuals. Carrier representatives maintain offices in the hangar, and monitor the work. The Southwest contract specifically gives the carrier inspection rights. The Federal Express contract specifically provides that DalFort will remove employees at the Carrier's request. Carrier representatives may review training records of DalFort employees, and also train DalFort employees who, in turn, train other DalFort employees. In sum, there is considerable evidence that the degree of control exercised by air carriers over DalFort and its employees is sufficient to render the company subject to the RLA.
Conclusion and Certifications
Based upon the facts presented, the Board concludes that DalFort remains subject to the Railway Labor Act, as amended, 45 U.S.C. §§ 151-188.
NOW, THEREFORE, in accordance with Section 2, Ninth, of the Railway Labor Act, as amended, and based upon its investigation pursuant thereto, the National Mediation Board certifies that the International Brotherhood of Teamsters has been duly designated and authorized to represent for the purposes of the RLA, as amended, the crafts or classes of Mechanics and Related Employees-Case No. R-6661, and Stock Clerks-Case No. R-6662, employees of DalFort Aerospace, L.P., its successors and assigns.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Mr. Charles Bohannon
Mr. Ray Benning
William R. Wilder, Esq.
James L. Hicks, Jr., Esq.
Mr. Terry J. Drake
1. In its June 15, 1999, submission, DalFort requested a hearing, asserting that the IBT affidavits contained "errors" and "inaccuracies." The Board conducted an on-site investigation.
2. On September 9, 1999, the IBT filed an additional submission. Both that submission and the subsequent response by DalFort are untimely.
3. Zimmerman now is employed by Triton as the on-site customer representative.
4. The individual in question was fired by Federal Express.