September 27, 2000
James T. Winkler, Esq.
Counsel for National Airlines
Hicks & Walt
3930 Howard Hughes Parkway
Las Vegas, NV 89109-0945
Mr. R. Thomas Buffenbarger
Mr. Robert Roach, Jr.
David Neigus, Esq.
International Association of Machinists
& Aerospace Workers, AFL-CIO
9000 Machinists Place
Upper Marlboro, MD 20772-2887
Re: NMB Case No. R-6761
This determination addresses National Airlines' (National or Carrier) September 13, 2000, appeal of Investigator Benetta M. Mansfield's eligibility rulings. For the reasons set forth below, the Carrier's appeal is denied.
On June 28, 2000, the International Association of Machinists and Aerospace Workers, AFL-CIO (IAM), filed an application with the National Mediation Board (Board) pursuant to 45 U.S.C. § 152, Ninth, alleging a representation dispute among Fleet Service Employees of National. The employees are currently unrepresented.
The Board assigned Benetta M. Mansfield to investigate. In its initial submission to the Board, the Carrier contended that the proper craft or class was the combined Fleet and Passenger Service Employees. The Board rejected this position on August 18, 2000, and found that the proper craft or class at National was Fleet Service Employees. National Airlines, 27 NMB 550 (2000).
On August 21, 2000, the Board advised the parties on the procedures for challenging the List of Potential Eligible Voters. The Board informed the parties, "[c]hallenges to the Potential List of Eligible Voters or objections with regard to any other matters not previously addressed must be filed by 4 p.m., EDT, on August 28, 2000."
On August 28, 2000, the Carrier filed challenges to the List of Eligible Voters alleging that thirty-nine (39) individuals should be added to the List. Thirty-seven (37) of the challenges involved Customer Service Agents in locations outside Las Vegas who were named in the Carrier's initial submission.
On August 31, 2000, the IAM responded to the Carrier's challenges. The IAM argued that the Carrier's challenges should be rejected because the thirty-seven (37) employees are Customer Service Agents properly in the Passenger Service Employees craft or class. The IAM stated that in National Airlines, supra, the Board found that the Fleet and Passenger Service Employees should not be combined into a single craft or class.
On September 6, 2000, the Investigator ruled inter alia that the thirty-seven (37) individuals would not be added to the List. In this letter, the Investigator reiterates that these employees are Customer Service Agents and that the Board already ruled on this matter.
The Carrier appeals the Investigator's ruling stating that the Investigator ignored the fact that the thirty-seven (37) Customer Service Agents perform fleet service functions. The Carrier also states that the Investigator disregarded its evidence.
On August 15, 2000, the IAM responded to National's appeal stating that the challenged employees are not in the Fleet Service Employees craft or class and, therefore, are ineligible to vote.
In representation cases, the burden of persuasion required to overrule an Investigator's preliminary determination rests with the participant appealing that ruling.
On August 3, 2000, the Carrier filed its position statement requesting the Board combine the Fleet and Passenger Service Employees in a single craft or class. The Carrier attached the declaration of Kevin J. Tourek, the Carrier's Senior Vice President-Legal and Human Resources, Corporate Secretary and General Counsel, with evidence and a list of Customer Service Agents at various locations outside Las Vegas who performed weight and balance and load planning. The Board considered the declaration and found that the Customer Service Agents should not be in a combined Fleet and Passenger Service craft or class. National Airlines, supra.
The Board found that the thirty-seven (37) Customer Service Agents did not perform fleet service functions other than weight and balance and load planning. The Board found the evidence insufficient to combine Fleet and Passenger Service Employees into a single craft or class. The Board stated:
In United Airlines, Inc., 6 NMB 180 (1977), the Board refused to combine fleet service and passenger service employees. The Board stated, "[t]hough it is uncontested that certain Passenger Service Employees at smaller stations perform Fleet Service or other duties beyond their principal responsibilities, such diversification of function becomes significant only upon a showing that the primary responsibilities of the position in question have been substantially obscured." Id. at 184. See also USAir, 15 NMB 369 (1988); Continental Airlines, 10 NMB 433 (1983). Moreover, the Board has not included Load Planners in the Fleet Service Employees craft or class. See, e.g., American Airlines, Inc., 21 NMB 60 (1993).
The Carrier demonstrated, at most, that thirty-two percent of its proposed combined craft or class regularly perform weight and balance calculations and load planning functions. The Carrier has not shown that Fleet Service Employees in Las Vegas perform any Passenger Service functions. The Board finds that the Carrier failed to provide sufficient evidence that the Fleet and Passenger Service Employees should be combined into a single craft or class.
National Airlines, supra.
The Board noted that "the essence of passenger service is 'customer contact,' and that is the difference between the two crafts or classes." Id., citing American Airlines, Inc., 26 NMB 106 (1998). In its analysis, the Board found that a dispute existed among the Fleet Service Employees of National and ordered an election.
On August 21, 2000, the Board gave the parties an opportunity to raise challenges and objections to the List of Eligible Voters. The Board stated that challenges and objections were only to be raised with regard to matters not previously addressed. Nevertheless, the Carrier challenged the same thirty-seven (37) Customer Service Agents that the Board ruled were not included in a combined craft or class of Fleet and Passenger Service Employees and contended they should be in the Fleet Service Employees craft or class. The Carrier argued that although the jobs are titled Customer Service Agents, the employees perform the work of Fleet Service Employees. However, the Board had already ruled that these employees do not perform enough fleet service work to be in a combined craft or class. Therefore, the Investigator ruled that the thirty-seven (37) Customer Service Agents did not belong in the Fleet Service Employees craft or class. Based on the Board's previous determination that the Carrier's Customer Service Agents do not perform a significant amount of fleet service functions to warrant inclusion in a combined craft or class, the Investigator concluded that the thirty-seven (37) Customer Service Agents will not be added to the List of Eligible Voters. The Investigator's decision is sustained.
The thirty-seven challenged individuals are Customer Service Agents and not part of the Fleet Service Employees craft or class. Their ballots, if cast, will not be counted. The count will take place as scheduled at 2:00 p.m., Tuesday, October 3, 2000.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff