27 NMB No. 53
March 9, 2000
Timothy Gallagher, Esq.
Melvin S. Schwarzwald, Esq.
Counsel for OPEIU, AFL-CIO
Schwarzwald, Rock & McNair
616 Bond Court Building
1300 East Ninth Street
Cleveland, OH 44114-1503
Mr. Paul Bohelski
8800 Elbe Trail
Fort Worth, TX 76118-7408
Peter H. Kiefer, Esq.
Counsel for PHI
Ogletree, Deakins, Nash, Smoak & Stewart
2400 N. St., NW., 5thFloor
Washington, DC 20037
Homer L. Deakins, Esq.
Counsel for PHI
Ogletree, Deakins, Nash, Smoak & Stewart
600 Peachtree St., NE.
Atlanta, GA 30308
Re: NMB Case No. R-6720
Petroleum Helicopters, Inc./OPEIU, AFL-CIO
This determination addresses the appeals of Petroleum Helicopters, Inc. (PHI or Carrier) and the Office and Professional Employees International Union, AFL-CIO (OPEIU), of Senior Hearing Officer Sean J. Rogers' (Investigator) rulings on the eligibility and ineligibility to vote in a representation election among PHI's employees. For the reasons set forth below, the Investigator's rulings are upheld.
On December 13, 1999, OPEIU filed an application for representation of the craft or class of Flight Deck Crew Members at PHI. Following an investigation, the Board authorized an election on January 7, 2000. Ballots were mailed on February 4, 2000, and the count is scheduled for March 10, 2000.
On January 25, 2000, OPEIU filed challenges to several positions on the List of Potential Eligible Voters.
On February 9, 2000, PHI responded opposing each of OPEIU's challenges except two employees whom PHI agreed were ineligible. OPEIU replied to PHI's response on February 17, 2000, and PHI replied on February 25, 2000.
On March 1, 2000, the Investigator ruled that the Area Manager and the Offshore Manager job titles were mere title changes from the earlier PHI job title "Base Manager." The Investigator further found that, on August 12, 1997, based on an OPEIU application in National Mediation Board (NMB or Board) Case No. R-6519, Board Representative Eileen Hennessey, ruled that "Base Managers" were eligible in the Flight Deck Crew Members craft or class. Her ruling was appealed by OPEIU. On appeal, the Board found that Base Managers were eligible to vote.Petroleum Helicopters, Inc., 24 NMB 652 (1997).
In addition, the Investigator interviewed three Area Managers and the Offshore Manager to determine if the duties and responsibilities were the same as the Base Managers inPHI,supra. Pursuant to the NMB's Representation Manual (Manual), Section 5.1, the Investigator concluded that Hennessey's earlier determination was binding. Therefore, the Investigator ruled that the Area Managers and the Offshore Manager were eligible voters.
InPHI, supra,Hennessey ruled that Instructor Pilots and Flight Instructors were eligible voters and her ruling was not appealed by OPEIU. Pursuant to Manual Section 5.1, the Investigator concluded Instructors were eligible voters. The Investigator also ruled that Check Airmen perform essentially the same duties as Instructors, along with certain additional Federal Aviation Administration duties, and share a community of interest with Flight Deck Crew Members. Therefore, Check Airmen were ruled eligible to vote.
As to Antarctic-based employees, the Investigator ruled that Antarctica is neither within the United States nor a possession of the United States and, pursuant to Manual Section 5.310, PHI's Antarctic-based employees were ineligible to vote.
Finally, the Investigator ruled that employees Carter, Thibault, Kaufman, and Murphy did not share a work-related community of interest with the craft or class and were ineligible to vote.
On March 2, 2000, OPEIU appealed the Investigator's rulings concerning the Area Managers, the Offshore Manager, and the Instructors/Check Airmen.
On March 3, 2000, PHI appealed the Investigator's rulings concerning the Antarctic-based employees, Kaufman and Murphy. OPEIU and PHI submitted replies to these cross-appeals on March 6, 2000.
I. Instructors/Check Air Pilots
The affidavit of Edward Gatza, PHI's Manager, Human Resources, establishes that these are the same employees that Board Representative Eileen Hennessey determined were part of the craft or class in NMB Case No. R-6519. Manual Section 5.1 states, in pertinent part, "[p]rior decisions of the Board in regard to craft or class on the same carrier shall be binding upon the Investigator."
Therefore, the Investigator's ruling, as to Instructors/Check Airmen, is upheld.
II. Area Managers and the Offshore Manager
The Investigator's determination states:
On August 12, 1997, based on an OPEIU application in NMB Case No. R-6519, Eileen Hennessey, Board Representative found that PHI Base Managers were eligible to vote in the craft of class of Flight Deck Crew Members in a representation election at PHI. Her determination was appealed by OPEIU. On appeal, the Board ruled the Base Managers were eligible to vote.Petroleum Helicopters, Inc., 24 NMB 652 (1997).
A representation election followed and OPEIU challenged the election. The Board found election interference and ordered a rerun election.Petroleum Helicopters, Inc., 25 NMB 197 (1998). For the rerun election, the original eligibility list was used since the period of challenges and objections had passed. Therefore, the Board entertained only status changes from the participants. No appeal of the NMB status change determinations was available. On March 31, 1999, the day of the count, Patricia Sims, Mediator, in a status change determination, found that PHI Area Managers were not eligible to vote in that election.
The record establishes that, for the six employees at issue who hold the job title "Area Manager," a mere job title change was implemented by PHI from the "Base Manager" title. This conclusion is supported not only by the Gatza affidavit, but also by the Investigator's interview of three Area Managers.
Hennessey's ruling, found that "Base Managers" were part of the craft or class of Flight Deck Crew Members. On appeal, her ruling was upheld.Petroleum Helicopters, Inc., 24 NMB 652 (1997). Therefore, pursuant to Manual Section 5.1, the Investigator's ruling in this case is upheld.
The Investigator also found that the Offshore Manager performs the same duties and responsibilities for offshore PHI customers as the six Area Managers for other customers. In addition, the Investigator found that the Offshore Manager is not a management official and is required to fly the line just like all other PHI Flight Deck Crew Members. The Investigator's conclusions are based on the Gatza affidavit and the Investigator's interview of the Offshore Manager.
The record establishes that the duties and responsibilities of the Offshore Manager and the Area Managers, are similar. Moreover, the Area Managers are included in the craft or class. Therefore, the ruling is upheld.
III. Antarctic-based Employees
The Antarctic Treaty, Article VIII, provides that Antarctic-based United States citizens shall be subject to the jurisdiction of the United States. Therefore, the Treaty establishes that the Board has the jurisdictional power to decide the applicability of the Railway Labor Act (RLA) as to Antarctic-based PHI employees.
Section 5.310 requires employees to be "based within the United States and/or its possessions . . . ." to be subject to the RLA. The record establishes that Antarctica is neither the United States nor one of its possessions. Therefore, the Investigator's ruling that the PHI Antarctic-based employees are ineligible to vote is upheld.
IV. Individual Challenges: Terry G. Kaufman and Robert N. Murphy
Gatza's affidavit and the OPEIU's affidavits of Stephen D. Ragin, a PHI helicopter pilot, establish that Terry G. Kaufman and Robert N. Murphy work on "special projects" at PHI's Lafayette, Louisiana corporate headquarters. The record also establishes that, for the twelve months prior to the December 5, 1999, cut-off date, Kaufman and Carter have flown comparatively fewer revenue hours than other PHI Flight Deck Crew Members.
Considering the entire record presented by PHI and OPEIU, the Board finds that Kaufman and Murphy have been working on special projects at PHI headquarters and they rarely fly the line. Therefore, they do not share a work-related community of interest with the craft or class of Flight Deck Crew Members at PHI. The Investigator's ruling is upheld and they are ineligible to vote.
The Board upholds the Investigator's rulings that Instructors/Check Airmen, Area Managers, and the Offshore Manager are eligible to vote in the craft or class. The Board upholds the Investigator's rulings that PHI's Antarctic-based employees, Terry G. Kaufman, and Robert N. Murphy are ineligible to vote in the craft or class. Their ballots, if cast will not be counted. The count will take place as scheduled at 2:00 p.m. EST on Friday, March 10, 2000.
By direction of the NATIONAL MEDITATION BOARD.
Stephen E. Crable
Chief of Staff