27 NMB No. 44
February 28, 2000
Mr. Terry M. Erskine, Vice President-Employee Relations
Delta Air Lines, Inc.
1050 Delta Blvd., Dept. 943
Atlanta-Hartsfield Int'l. Airport
Atlanta, GA 30320
Walter A. Brill, Esq.
Associate General Counsel
Delta Air Lines, Inc.
1030 Delta Blvd., Dept. 981
Atlanta-Hartsfield Int'l. Airport
Atlanta, GA 30320
John J. Gallagher, Esq.
Counsel, Delta Air Lines, Inc.
Paul, Hastings, Janofsky & Walker, LLP
1299 Pennsylvania Ave., NW. 10th Floor
Washington, DC 20004-2400
Mr. John J. Kerrigan
David Rosen, Esq.
Transport Workers Union of America
80 West End Avenue
New York, NY 10023
Arthur Luby, Esq.
Counsel for TWU
O'Donnell, Schwartz and Anderson
1300 L Street, NW., Suite 5
Washington, DC 20005
Re: NMB Case No. R-6718
Delta Air Lines, Inc.
This determination addresses the Transport Workers Union of America's (TWU) February 11, 2000, appeal of Investigator Mary L. Johnson's ruling that Delta Air Lines, Inc. (Delta) "ready reserve" employees are eligible to vote in the election. For the reasons set forth below, with the exception of thirty-three employees who were not performing work in the craft or class on the eligibility cut-off date, the Investigator's decision is upheld.
On December 9, 1999, TWU filed an application for the craft or class of Fleet Service Employees at Delta. These employees are currently unrepresented. Following an investigation, the Board authorized an election on December 21, 1999. Ballots were mailed on January 28, 2000, and the count is scheduled for March 3, 2000.
On January 10, 2000, TWU filed challenges to several positions on the List of Potential Eligible Voters, including 350 ready reserve employees. TWU argued that these employees are ineligible to vote because they are temporary and casual. TWU stated that these employees are on-call contract employees who have no expectation or guarantee of hours or pay and receive no employment benefits from Delta. In support of its contention, TWU submitted a copy of the "Ready Reserve Employment Agreement."
Delta's response claimed that the ready reserve employees are regular part-time employees, receive pass benefits, have regular deductions from their paychecks, and are subject to Delta's regular personnel procedures. Delta submitted a copy of the Delta Personnel Policy on Ready Reserves. Delta claimed that this policy demonstrates that these employees have a reasonable expectation of continued employment. Delta also noted that these employees work a substantial number of hours. In support of its position, Delta submitted the Declaration of Elizabeth H. Johnston, Director-Human Resources-Customer Service.
On January 31, 2000, Investigator Johnson found, inter alia, that the ready reserve employees work identifiable schedules and receive travel and other benefits. Therefore, she ruled them eligible to vote.
On February 11, 2000, TWU appealed the ruling. TWU reiterated its position that: the ready reserve employees work on an "as-needed" basis; citing the employment agreement language guaranteeing three hours of work "when and if called"; the work is scheduled in advance only for Delta's convenience; and the benefits provided can be terminated at anytime. On February 17, 2000, Delta filed a response supporting the Investigator's ruling.
The Board distinguishes between part-time employees, casual employees, and temporary employees. Section 5.301 of the Board's Representation Manual provides guidelines for determining the eligibility of part-time employees:
When investigating the eligibility of a part-time employee, the Investigator should determine (a) if the employee works an identifiable schedule during a specified time period; (b) whether the employee regularly relieves other employees; (c) what benefits the employee receives; (d) what deductions are taken from the employee's pay; and (e) any other relevant facts which would indicate whether the employee has a regular part-time or a casual part-time employer-employee relationship.
[I]f the individual's employment is casual, that is, where the employee has neither a regular employee-employer relationship nor scheduled work assignments, then the employee is ineligible.
Section 5.302 of the Representation Manual provides a test for the eligibility of temporary employees:
It is established NMB policy that only those employees with a present interest regarding the craft or class in dispute are eligible to vote in an NMB representation election. Such policy is implemented with respect to temporary employees by examining whether or not the employees in question have a reasonable expectation of continued employment . . . in the craft or class.
Section 5.303 of the Representation Manual defines, for any employee, the term working regularly in the craft or class:
Absent unusual circumstances, employees who are working regularly in the craft or class at issue on and after the cut-off date are eligible to participate in the craft or class.
Delta has identified 350 employees as ready reserve. A ready reserve employee fills out an application and signs a "Ready Reserve Employment Agreement" which states, in part:
I understand that I am not eligible to receive nor will I become eligible to receive any benefits provided by Delta to any of its other personnel including, but not limited to, insurance benefits, medical/dental benefits, disability benefits, survivor benefits, retirement benefits, holiday pay, vacation pay. I further understand that I will not be eligible for any increase in pay which Delta may grant to its other personnel. I understand that Delta may, in its discretion, grant me limited travel benefits . . . .
Ready reserve employees are paid $8.81 per hour for each hour worked. They have Delta employee identification and security badges, and regular deductions are made from their paychecks. They may join the Delta employees' credit union. They are afforded employee and family travel pass privileges. They are subject to regular personnel procedures for terminations or resignations.
Delta's "Ready Reserve and Seasonal Personnel - Domestic" manual describes the position as follows:
Ready reserve personnel are primarily individuals who are employed to work on an on-call basis for relief and short-term work assignments or on a regularly scheduled basis to provide additional customer service resources during peak operational periods. Whenever scheduled to work, all ready reserve personnel will be scheduled for a minimum of three continuous work hours. They will be employed on an indefinite basis to provide scheduled or unscheduled relief. Ready reserve personnel are not guaranteed to be scheduled any minimum number of hours during each pay period.
Delta documented the hours worked for each ready reserve employee for each payroll period in 1999. During the ninety-day period prior to the TWU's application, virtually every employee worked a substantial number of hours. However, several employees did not perform work in the craft or class during the ninety-day period, though hired prior to the payroll period preceding the application.(1)
TWU argues that all benefits, employment rights, and continued employment for ready reserve employees are within Delta's discretion. TWU states that these employees work only on an as-needed basis and should be excluded citing Williamette and Pacific Railroad, Inc., 24 NMB 413 (1997).
The Board has applied Sections 5.301 and 5.302 in determining if part-time employees are eligible to vote. Even absent an identifiable schedule or the receipt of benefits, the Board has found that part-time employees who work a significant number of hours per week are eligible to vote in the craft or class. Bemidji Aviation Services, Inc. d/b/a Air Direct Charter, 21 NMB 377 (1994). In American Airlines, Inc., 26 NMB 106 (1998), the Board found an employer-employee relationship for associates that had regular deductions from their paychecks and were afforded travel benefits. TWU's citation of Williamette, supra, is inapposite. In that case, the engineer at issue worked full-time for another railroad and had only actually worked in December 1996 and March and April 1997.
The Board finds that the Investigator properly found that the ready reserve employees are eligible. Thirty-three employees not working in the craft or class on the payroll cut-off date are ineligible under Section 5.303 of the Representation Manual. (See footnote.)
The Board upholds the Investigator's ruling that Delta's ready reserve employees are eligible to vote in the craft or class. However, the Board finds that Samuel M. Adams, Ramon I. Aleman, Jamil Ali, Michael Allar, Bongo Anane, Craig W. Anderson, David L. Buttars, Matthew Clonts, Thomas P. Cook, James Foster, Ryan Hoopes, Ivan Ali Howell, Lori Jenks, John Keller, Robert W. Mezzetti, Matt R. Newell, Bruce Allen Noel, Jacqueline Otero, Miguel A. Pelayo, John D. Sawyer, Ron C. Sessions, Bernadette Smith, Clark Sneary, Vake Takai, John Tatafu, Larry Malaela Teo, Sioella A. Tupou, John Uipi, Quint P. Underwood, Tongaleva Vea, Steven L. Velasquez, Shawn David Walton, and Michael D. Wing are ineligible because they did not work in the craft or class as of the cut-off date. Their ballots, if cast, will not be counted. The count will take place as scheduled at 11 a.m. on Friday, March 3, 2000.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
1. These employees were Samuel M. Adams, Ramon I. Aleman, Jamil Ali, Michael Allar, Bongo Anane, Craig W. Anderson, David L. Buttars, Matthew Clonts, Thomas P. Cook, James Foster, Ryan Hoopes, Ivan Ali Howell, Lori Jenks, John Keller, Robert W. Mezzetti, Matt R. Newell, Bruce Allen Noel, Jacqueline Otero, Miguel A. Pelayo, John D. Sawyer, Ron C. Sessions, Bernadette Smith, Clark Sneary, Vake Takai, John Tatafu, Larry Malaela Teo, Sioella A. Tupou, John Uipi, Quint P. Underwood, Tongaleva Vea, Steven L. Velasquez, Shawn David Walton, and Michael D. Wing.