In the Matter of the
Application of the
IBT/HERE EMPLOYEE REPRESENTATIVES' COUNCIL
alleging a representation dispute
pursuant to Section 2, Ninth,
involving employees of
27 NMB No. 101
FILE NO. CR-6687
JURISDICTION- POSTING OF NOTICE
This decision resolves claims by District 6, International Union of Industrial, Service, Transport & Health Employees (District 6) that the National Mediation Board (NMB) lacks statutory jurisdiction over the application filed by the IBT/HERE Employee Representatives' Council (Council or Organization) pursuant to 45 U.S.C. § 152, Ninth. The Council's application alleges the existence of a representation dispute involving Kitchen, Commissary, Catering and Related Employees at Dobbs International Services, Inc. d/b/a Gate Gourmet (Dobbs). For the reasons discussed below, the NMB finds that Dobbs is a carrier pursuant to 45 U.S.C. § 181. The investigation for certification without election continues.
On May 18, 2000, the Council, filed an application with the NMB pursuant to 45 U.S.C. § 152, Ninth, alleging the existence of a representation dispute involving "Kitchen, Commissary, Catering and Related Employees" at Dobbs. At the time this application was received, these employees did not have a certified representative or individual under the Railway Labor Act (RLA).
The NMB assigned Sean J. Rogers as the Investigator.
Dobbs employs approximately 10,715 kitchen, catering and related employees at fifty-six airports and several AMTRAK rail locations nationwide and provides catering kitchen services to air and rail carriers. On or about July 1, 1999, Dobbs' parent corporation and owner, VIAD CORP, sold 100% of Dobbs' shares to SAirGroup.
The Council requests certification without an election. It says its application is submitted pursuant to the NMB's policy in Air Florida, Inc., 7 NMB 162 (1979), in which the NMB found, inter alia, that a copy of any current valid collective bargaining agreement between the applicant and the carrier may be submitted in lieu of authorization cards. The Council explains that eighty percent of Dobbs' 10,715 employees system-wide were represented under the Labor Management Relations Act, 29 U.S.C. §§ 141-188 (LMRA). Over a year ago, SAirGroup, an air carrier, acquired total ownership of Dobbs, and Dobbs is now subject to the RLA since it is controlled by an air carrier.
The Council states that pursuant to the LMRA, 3,420 Dobbs employees were covered by recognitions or National Labor Relations Board (NLRB) certifications and collective bargaining agreements between Dobbs and Hotel Employees & Restaurant Employees (HERE) Locals. Another 3,397 employees were covered by recognitions or NLRB certifications and collective bargaining agreements between Dobbs and International Brotherhood of Teamsters (IBT) affiliates.
To maintain and continue collective bargaining stability, HERE and IBT formed the Council. The Council asked Dobbs to recognize it as the representative of all employees in the craft or class system-wide. In support of this request, the Council obtained authorization cards from substantially more than fifty percent of over 2,000 unrepresented Dobbs employees at various locations nationwide. Furthermore, the Council says, approximately 1,800 employees are represented by other AFL-CIO labor organizations with recognitions or NLRB certifications and collective bargaining agreements with Dobbs.(1) The Council has designated these organizations as its agents for collective bargaining purposes and their relationships with Dobbs will continue unchanged. The Council says Dobbs agreed to these arrangements and voluntarily recognized it as the duly designated representative pursuant to the RLA. Effective June 1, 2000, the Council and Dobbs negotiated a new Master Agreement covering over 9,000 organized employees in the craft or class.
The Council requests that the NMB certify, without election, the Council as the duly designated representative of the craft or class.
On May 23, 2000, based on the Council's application, the NMB notified all interested persons by requiring Dobbs to post at all stations an NMB Notice to Employees concerning the application. The notice invited all interested persons to file initial position statements by June 6, 2000, and requested certain other information from the participants in support of the investigation.
On May 23, 2000, George J. Giro, Vice President Human Resources, Dobbs, informed the NMB in writing that based on majority support system-wide, Dobbs was satisfied that the Council is the duly designated representative of the craft or class. He stated that Dobbs agrees to NMB certification without election based on a showing of interest described in the NMB's Representation Manual, Sections 10.3 and 10.4.
On June 6, 2000, District 6 submitted an initial position statement opposing the Council's certification and asserting that Dobbs was not subject to the RLA. District 6 supplemented its position statements on June 29, 2000. The Council responded to District 6's position statement on June 23 and made supplemental submissions on July 5 and 7, 2000. Dobbs responded to District 6's position statement on June 22, 2000.
Whether Dobbs International Services, Inc. d/b/a Gate Gourmet is subject to the RLA.
District 6 asserts that it is the "NLRB-certified collective bargaining agent for Dobbs' production workers at Dobbs' Newark, New Jersey, facility and entered into a collective bargaining agreement with Dobbs expiring in 2003." Therefore, District 6 argues that Dobbs is not a carrier subject to the RLA.
According to District 6, the RLA was limited to certain specific railroad-type companies, and companies owned or controlled by, or under common control with, a "carrier by railroad" and involved in "transportation by railroad." (45 U.S.C. § 151, First.) District 6 admits that the 1936 amendments to the RLA extended the law's coverage to "every common carrier by air . . . and every carrier by air transporting mail for or under contract with the United States Government," but says Congress did not provide RLA coverage for non-carrier companies owned or controlled by an air carrier. (45 U.S.C. § 181.)
District 6 acknowledges that 45 U.S.C. § 182 says the provisions of the RLA shall apply to air carriers and their employees in the same manner and to the same extent as rail carriers under Section 151. However, District 6 argues the Section 151 language concerning employers "owned or controlled by" carriers pertain expressly and exclusively to rail carriers and subsidiaries involved in transportation by rail. Therefore, the RLA definition of carrier does not extend to a non-carrier, like Dobbs, which is owned or controlled by an air carrier, District 6 says.
According to District 6, Dobbs is a food provider, not a carrier by air. District 6 says that "approximately one year ago, Dobbs came under common control with an air carrier as a result of a stock sale." This sale was simply a transfer of corporate stock on a level far removed from Dobbs' operations, District 6 says. District 6 concludes, Congress never intended that a catering company such as Dobbs would fall under the RLA.
District 6 also objects to the Council's application because the Council is an ad hoc organization created specifically for this application and because neither IBT nor HERE individually could obtain majority support system-wide. District 6 also questions whether the authorization cards submitted by the Council identify the Council as the employees' representative as opposed to either IBT or HERE.
District 6 contends that the campaign to obtain authorization cards in Newark, and most likely everywhere else, was set up to destroy District 6.
Finally, District 6 argues that the NMB must hold that Dobbs must continue to recognize District 6 in Newark until its contract with Dobbs expires or at least until the NLRB contract bar period ends.
The Council says Dobbs is wholly owned by SAirGroup, a holding company that also owns Swissair and other air carriers. The Council reasons that Dobbs performs work traditionally performed by airline industry employees and is commonly owned with airline carriers by SAirGroup. Therefore, the Council asserts, Dobbs is covered by the RLA because it is under common control with a carrier by air.
According to the Council, 45 U.S.C. §§ 181-182 establish that Congress intended the term "carrier by air" to be substituted for the term "carrier by railroad" each time the latter term appears in Section 151, First.
The Council asserts that it is well established under the RLA, that labor organizations may form councils to represent employees 'through' the council. Virginian Railway Co., 1 NMB 257 (1942) (System Federation No. 40, Railway Employees Department)). Therefore, the representation authorizations signed by employees conform to the RLA, the Council says. The Council says its IBT and HERE components had substantially more that fifty percent of the system-wide craft or class under a collective bargaining agreement before Dobbs voluntarily recognized the Council. These pre-recognition contracts are by themselves a showing of interest, the Council argues. The Council says its other forms of authorization, including dues check-off documents for many employees and authorization cards for most unrepresented employees, satisfy the NMB's Representation Manual guidelines and RLA requirements.
The Council argues that District 6 has provided no evidence concerning coercion and deception of Dobbs' Newark-based employees.
Finally, the Council asserts that the NMB has no authority to grant District 6's request for Dobbs to continue to recognize District 6 in Newark.
Dobbs says that in the spring of 2000, the IBT and HERE, which represented the vast majority of the company's organized workforce, formed the Council. On May 15, 2000, Dobbs extended system-wide recognition to the Council and effective June 1, 2000, executed a Master System-Wide Agreement pursuant to the RLA.
Dobbs says it is not a carrier but is covered by the RLA based on the two-prong jurisdictional analysis. According to Dobbs, in-flight food catering services are traditional air carrier activities, so the first prong is satisfied, and Dobbs is owned by SAirGroup, so the second prong is satisfied, as well.
Dobbs says it is satisfied that the Council has significantly more than majority support system-wide. Dobbs agrees with the Council that the NMB should certify the Council as the duly designated representative of its employees, without an election.
Dobbs denies any employees at Newark were coerced into signing authorization cards and says District 6's claims are unsupported assertions and factually inaccurate. Finally, Dobbs argues that District 6's request, that the NMB continue District 6's recognition in Newark until its contract expires or until the expiration of the NLRB contract bar period ends, is inconsistent with NMB policy and precedent.
FINDINGS OF FACT
Dobbs International Services, Inc. d/b/a Gate Gourmet is wholly-owned by SAirGroup, an airline holding company that also owns Swissair and other air carriers.
The Dobbs' employees covered by the Council's application provide catering, in-flight kitchen, and related services to airline and railway carriers at fifty-six airports and several AMTRAK rail locations nationwide.
On May 15, 2000, Dobbs recognized the Council as the collective bargaining representative of kitchen, commissary, catering and related employees nationwide. On June 1, 2000, Dobbs and the Council implemented a nationwide "Master System-Wide Agreement" which recognized the Council "as the collective bargaining representative of all employees working at facilities covered by the master agreement with the authority and obligation to represent them for all purposes of the Railway Labor Act, as amended." (Article 1 Recognition).
The Council is the only applicant. At the time the Council's application was received, kitchen, commissary, catering and related employees at Dobbs were not represented by any organization or individual pursuant to the RLA. The Council's application requests NMB certification without election based on evidence of substantial showing of interest. Dobbs also requests that the NMB certify the Council as the duly designated representative of its employees without an election.
When an employer does not fly aircraft for the transportation of freight or passengers, the NMB applies a two-part test in determining whether an employer and its employees are subject to the RLA. Federal Express Corporation, 23 NMB 32 (1995). First, the NMB determines whether the nature of the work is that traditionally performed by employees of rail or air carriers -- the "function" test. Second, the NMB determines whether the employer is directly or indirectly owned or controlled by, or under common control with a carrier or carriers -- the "control" test. Both parts of the test must be satisfied for the NMB to assert jurisdiction. Ogden Aviation Services, 23 NMB 98 (1996).
Dobbs employees provide catering, in-flight kitchen, and related services to airline and railway carriers nationwide. Dobbs employees are performing work traditionally performed by airline industry employees.
Dobbs does not fly aircraft and is wholly-owned by SAirGroup, an airline holding company that also owns Swissair and other air carriers. When a carrier and an entity performing work traditionally performed by airline industry employees are commonly owned by a holding company, the NMB has found the entity subject to the RLA. Chelsea Catering Corporation, 19 NMB 301, 304 (1992); AMR Services Corporation, 18 NMB 348 (1991).
The facts establish that both parts of the Ogden test are satisfied. The NMB finds that Dobbs is a carrier subject to the RLA.
The NMB also finds that there is a voluntary recognition of the Council by Dobbs and a system-wide collective bargaining agreement exists between the Carrier and the Organization. Both the Council and Dobbs have requested certification without election in writing. The NMB will continue its investigation of the Council's application for certification without election. The record in this investigation will remain open for an additional 14 calendar days and any interested person may file submissions with the NMB concerning the Council's application.
District 6's objection to the Council because it is an ad hoc organization created specifically for this application lacks merit. Under the RLA, labor unions may coalesce into organizations and councils to represent employees as the IBT and HERE have done in this case. The NMB finds that the Council meets the definition of "representative" under 45 U.S.C. § 151, Sixth.
District 6 has presented no evidence that the Council's authorization cards are inadequate or that the Council's campaign to obtain the authorization cards was collusive.
Finally, the NMB has no power to continue the District 6 collective bargaining agreement with Dobbs until it expires or until the NLRB contract bar period ends.
CONCLUSION AND ORDER
The NMB finds that Dobbs is a carrier subject to the RLA. The NMB's investigation of the Council's application and request for certification without election will continue. In aid of the investigation, the Carrier must immediately post the attached notices to all kitchen, commissary, catering and related employees, in English and in Spanish, on all Carrier bulletin boards and in all locations where notices to employees are usually posted. The record will close and the investigation will conclude in fourteen calendar days from the date of the posting. The NMB's determination will follow.
By direction of the NATIONAL MEDIATION BOARD
Stephen E. Crable
Chief of Staff
(see attached list)
Keith A. Warren, Esq.
Mr. Ray Benning
Roland Wilder, Esq.
Mr. Ken Paulsen
John Clarke, Esq.
Larry W. Mazey, Esq.
Richard M. Greenspan, Esq.
Mr. R. Thomas Buffenbarger
Mr. Robert Roach, Jr.
David Neigus, Esq.
Mr. Frank Hurt
Mr. David B. Durkee
Joseph Lee Matalon, Esq.
NMB File No. CR-6687
TO ALL CONCERNED:
An application filed pursuant to the Railway Labor Act involving the following:
KITCHEN, COMMISSARY, CATERING AND RELATED EMPLOYEES
DOBBS INTERNATIONAL SERVICES, INC. d/b/a GATE GOURMET
SEEKING CERTIFICATION OF:
IBT/HERE EMPLOYEE REPRESENTATIVES' COUNCIL
Based on change of ownership of Dobbs International Services, Inc. (Dobbs) to SAirGroup, the IBT/HERE Employee Representatives' Council (Council) requests that the National Mediation Board (NMB) issue a certification of representation based on a check of dues check-off documents and authorization cards, and the Dobbs/Council collective bargaining agreement. Dobbs has agreed to this method to determine the employees' choice of a collective bargaining representative.
This case has been assigned to Sean J. Rogers for investigation. The purpose of this investigation is to determine whether a certification should be issued based on the showing of majority support made by the Council. No determination has been made at this time. This investigation will conclude and the record will close in fourteen calendar days from the date of this posting.
The Railway Labor Act gives employees the right to select representatives without carrier influence, interference or coercion. All employees are free to express their desire with respect to representation. The Carrier is not permitted to influence, interfere, or coerce employees in any manner in connection with their choice of representation. Violations should be reported immediately to Sean J. Rogers, NMB, Washington, D.C. 20572. (Tel.: (202) 692-5040). Any questions or submissions regarding this investigation should be directed to Investigator Rogers.
Date of Posting________________________________
THIS IS AN OFFICIAL GOVERNMENT DOCUMENT AND MUST NOT BE DEFACED BY ANYONE. THIS DOCUMENT SHOULD REMAIN POSTED UNTIL THE BOARD'S INVESTIGATION IS COMPLETED.
Caso NMB No. CR-6687
A TODOS LOS INTERESADOS
Una petición presentada conforme a la Ley Laboral Ferroviaria, sobre lo siguiente:
EMPLEADOS DE COCINA, ECONOMATO, COMIDAS PARA BANQUETES Y ANEXOS
DOBBS INTERNATIONAL SERVICES, INC. d/b/a GATE GOURMET
QUE BUSCAN LA CERTIFICACIÓN DEL:
CONSEJO DE IBT/HERE DE REPRESENTANTES DE EMPLEADOS
Basándose en el cambio de propiedad de Dobbs International Services, Inc., (Dobbs) a SAirGroup, el Consejo de IBT/HERE de Representantes de Empleados (el Consejo) solicita que la Junta Nacional de Mediación (NMB en inglés) expida una certificación de representación basada en documentos de petición para la deducción de cuotas sindicales y las correspondientes tarjetas de autorización, y en el convenio de negociación colectiva entre Dobbs y el Consejo. Dobbs ha aceptado este método para determinar la selección de un representante de los empleados ante las negociaciones colectivas.
La investigación de este caso ha sido asignada a Sean J. Rogers. La investigación tiene por objeto determinar si se debe expedir una certificación basada en la demostración de un apoyo mayoritario por el Consejo. Hasta este momento no se ha tomado ninguna determinación. Esta investigación concluirá y el expediente se cerrará en catorce días calendarios a partir de la fecha de publicación de este aviso.
La Ley Laboral Ferroviaria da a los empleados el derecho a seleccionar representantes sin la influencia, interferencia o coacción del transportista. Todos los empleados están en libertad de expresar sus deseos con respecto a la representación. Al transportista no le está permitido influir, interferir con o coaccionar a los empleados en forma alguna en relación con su selección de representantes. Toda infracción se debe denunciar inmediatamente a Sean J. Rogers, NMB, Washington, D.C. 20572. (Teléfono: 202-692-5040). Toda pregunta o presentación relacionada con esta investigación se debe dirigir al Investigador Rogers.
Fecha de publicación ____________________________
ÉSTE ES UN DOCUMENTO OFICIAL DEL GOBIERNO Y NO DEBE ALTERARLO NADIE. ESTE DOCUMENTO DEBE ESTAR A LA VISTA HASTA QUE CONCLUYA LA INVESTIGACIÓN DE LA JUNTA.
1. The AFL-CIO affiliated organizations include: Bakery & Confectionary & Tobacco Workers Union, Local 111; International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 142; Retail, Wholesale, Department Stores Union/United Food and Commercial Workers, AFL-CIO, Local 1102; Union of Needle Trades, Industrial & Textile Employees, AFL-CIO, CLC; and United Catering, Restaurant, Bar & Hotel Workers, Local 1064, RWDSU, AFL-CIO.