In the Matter of the
alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended
involving employees of
28 NMB No. 5
CASE NO. R-6785
This determination addresses applications filed by the International Brotherhood of Teamsters (IBT) and the Arrow Pilots Association (APA) requesting the Board to investigate whether Fine Air Services Corp. (Fine Corp.), the parent company of Fine Air Services, Inc. (Fine Air) and Arrow Air, Inc. (Arrow Air), is a single transportation system. For the reasons set forth below, the Board finds that on September 27, 2000, Fine Air and Arrow Air merged into a single transportation company.
On August 15, 2000, the IBT invoked the Board's Procedures for Handling Representation Issues Resulting from Mergers, Acquisitions or Consolidations in the Airline Industry, 14 NMB 388 (1987) and filed an application pursuant to Section 2, Ninth, of the Railway Labor Act (RLA) alleging a representation dispute among "Flight Deck Crew Members," employees of Fine Air and Arrow Air. This application was assigned NMB File No. CR-6693. On August 23, 2000, the APA filed an application covering "Flight Deck Crew Members" of Fine Air and Arrow Air.
At the time these applications were filed, Fine Air Flight Deck Crew Members were represented by the IBT pursuant to a Board certification in Case No. R-6531. Arrow Air Flight Deck Crew Members were represented by the APA pursuant to a Board certification in Case No. R-5456. As of August 15, 2000, there were approximately fifty-five IBT-represented Fine Air Flight Deck Crew Members and eighty-six APA-represented Arrow Air Flight Deck Crew Members.
The Board assigned Benetta M. Mansfield to investigate.
On August 16, 2000, the Board asked Fine Air and Arrow Air to provide information necessary to determine the appropriate system for representation purposes. Fine Air and Arrow Air responded on September 6, 2000, and agreed that Fine Air and Arrow Air constitute a single transportation system with Fine Corp. as the parent company.
Are Fine Air and Arrow Air a single transportation system? If so, what are the representation consequences of the merger on IBT's and APA's certifications?
The IBT and the APA argue that Fine Air and Arrow Air no longer exist as separate carriers. The Organizations further contend that Fine Air and Arrow Air have been combined to form Fine Corp., creating a single transportation system. Fine Air and Arrow Air concur.
The Organizations request that the Board authorize an election to determine the status of representation for the Flight Deck Crew Members of Fine Corp.
FINDINGS OF LAW
Determination of the issues in this case is governed by the Railway Labor Act (RLA or Act), as amended, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:
Fine Air and Arrow Air are common carriers as defined in 45 U.S.C. § 181.
IBT and APA are labor organizations as provided by 45 U.S.C. § 152, Ninth.
45 U.S.C. § 152, Fourth, gives employees subject to its provisions, "the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter."
45 U.S.C. § 152, Ninth, provides that the Board has the duty to investigate representation disputes and to designate who may participate as eligible voters in the event an election is required. In determining the choice of the majority of employees, the Board is "authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives . . . by the employees without interference, influence, or coercion exercised by the carrier."
STATEMENT OF FACTS
United States Department of Transportation Approval
On August 4, 2000, the United States Department of Transportation (DOT) approved the merger of Fine Air and Arrow Air.
Fine Air and Arrow Air assert that their operational merger was completed on September 27, 2000, and Fine Corp. is the surviving entity. The new entity is held out to the public as Fine Air. Arrow Air ceases to exist.
Management and Labor Relations
The Carrier states that the labor relations and personnel functions of Fine Air and Arrow Air are consolidated as "Fine Air Human Resources Department" managed by Fine Air Human Resources Director, Karen Zall. On September 27, 2000, the consolidation of Fine Air's and Arrow Air's management was completed.
Routes, Schedules, Uniforms and Insignia
Fine Air and Arrow Air routes and schedules are combined. A single standardized uniform will be issued to all Flight Deck Crew Members. All equipment, including aircraft, will bear the Fine Air logo and color scheme. Each aircraft will be repainted when it is scheduled for a maintenance inspection; this process is ongoing.
The Board's Authority
Section 2, Ninth, of the Act, 45 U.S.C. § 152, Ninth, authorizes the Board to investigate disputes which arise among a carrier's employees over representation and to certify the duly authorized representative of such employees. The Board has exclusive jurisdiction over representation questions under the RLA. Switchmen's Union v. National Mediation Board, 320 U.S. 297 (1943); General Committee of Adjustment v. M.K.T. Railroad, 320 U.S. 323 (1943). In Air Line Pilots Association, International v. Texas Int'l Airlines, 656 F.2d 16, 22 (2d Cir. 1981), the court stated, "the NMB is empowered to . . . decide representation disputes arising out of corporate restructurings."
Single Transportation System
In Trans World Airlines/Ozark Airlines, 14 NMB 218 (1987), the Board outlined factors to be examined when determining whether the carriers operate or will operate as a single transportation system. The following factors were cited by the Board as indicia of a single transportation system:
[T]he Board looks into such practical considerations as whether a combined schedule is published; how the carrier advertises its services; whether reservation systems are combined; whether tickets are issued on one carrier's stock; if signs, logos and other publicly visible indicia have been changed to indicate only one carrier's existence; whether personnel with public contact were held out as employees of one carrier; and whether the process of repainting planes and other equipment, to eliminate indications of separate existence, has been progressed.
Other factors investigated by the Board seek to determine if the carriers have combined their operations from a managerial and labor relations perspective. Here, the Board investigates whether labor relations and personnel functions are handled by one carrier; whether there are a common management, common corporate officers and interlocking Boards of Directors; whether there is a combined workforce; and whether separate identities are maintained for corporate and other purposes. Id at 236. TWA/Ozark, supra at 236.
The Board finds a single transportation system to exist only where there is evidence of substantial integration of operations. The operational merger of Fine Air and Arrow Air was completed on September 27, 2000. Labor relations and personnel functions are integrated. Schedules and routes are combined and the repainting process is underway. The Flight Deck Crew Members will all wear standardized uniforms. For these reasons, the Board finds that Fine Air and Arrow Air constitute a single transportation system operated by Fine Corp.
Once the Board determines that a single transportation system exists, it examines the potential representation issues. Flagship Airlines, Inc., 22 NMB 331 (1995).
All the participants in the case agree to the direction of an election within the Fine Corp. Flight Deck Crew Members craft or class. In the circumstances presented here, the Board orders an election to determine the status of representation for the Flight Deck Crew Members of Fine Corp. All prior certifications shall remain in effect pending the investigation.
On September 29, 2000, Fine Air and Arrow Air began operating as a single transportation system for representation purposes under the RLA.
Pursuant to Section 11.2 of the Board's Representation Manual, the Carrier is hereby required to furnish within five (5) calendar days alphabetized peel-off labels bearing the names and current addresses of those employees on the list of potential eligible voters currently employed by Fine Corp. The ballot count will take place in Washington, DC.
Based on the investigation, NMB File No. CR-6693 has been converted to NMB Case No. R-6785. The Board further finds that a dispute exists among the Flight Deck Crew Members and determines that an election should proceed promptly. An all mail ballot election is hereby authorized using a cut-off date of August 15, 2000, with the applicants, IBT and APA on the ballot. All certifications remain in effect pending the Board's certification of the election. Fine Corp. must provide the Board with evidence that the merger is complete within thirty days of this decision.
Sample ballots will be sent out on October 18, 2000. Ballots will be mailed on October 25, 2000, and the ballot count will take place on November 27, 2000.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Ellen C. Ham, Esq.
William N. Heirs, Jr., Esq.
Karen Zall, Esq.
Mr. Ray Benning
William R. Wilder, Esq.
Captain Pedro Dove
Scott Petersen, Esq.