July 10, 2001
Celeste M. Wasielewski, Esq.
Counsel for Executive Jet Aviation, Inc.
Verner Liipfert Bernhard McPherson & Hand
901 15th Street, NW.
Washington, DC 20005
Re: NMB Case No. R-6820
Executive Jet Aviation, Inc.
Dear Ms. Wasielewski:
This determination addresses the appeal filed by Executive Jet Aviation, Inc. (Executive Jet or Carrier) of Investigator Mary L. Johnson's eligibility rulings. For reasons discussed below, the Carrier's appeal is denied.
On May 15, 2001, the International Brotherhood of Teamsters (IBT or Organization) filed an application pursuant to 45 U.S.C. § 152, Ninth, alleging a representation dispute among Executive Jet's Flight Attendants. The application was docketed as NMB Case No. R-6820 and Investigator Johnson was assigned to the case.
On May 29, 2001, the Board found a dispute existed. Ballots were mailed June 12, 2001.
The IBT filed challenges to the List of Potential Eligible Voters on June 5, 2001. The Carrier responded on June 12, 2001. Investigator Johnson issued rulings on June 13, 2001. The Carrier filed this appeal on June 20, 2001.
The Organization challenged the eligibility of Tania H. Dermer, Paula J. Law, and Andrew F. Schell on the grounds that they did not complete their Initial Operating Experience (IOE) as of the cut-off date. The Carrier asserted that the IBT's argument "must fail" because they are covered under Part 91 of the Federal Aviation Regulations (FARs), which does not require IOE. Further, the Carrier stated that its in-house training program provides for placement of employees on the payroll as of date of hire, with full pay and fringe benefits.
The Investigator ruled the individuals ineligible to vote, citing Gulfstream Aviation, 27 NMB 65 (1995); Simmons Airlines, 15 NMB 228 (1988); West Air Commuter Airlines, 15 NMB 213 (1988); and Independent Federation of Flight Attendants v. Trans World Airlines, 819 F.2d 839 (8th Cir. 1987). The Investigator stated in her ruling that "for employees to be eligible, there must be sufficient evidence that they have performed line functions as of the cut-off date." The Investigator stated further, "[i]n the absence of evidence that the three individuals at issue performed line functions as of the cut-off date, they are ineligible."
In its appeal, Executive Jet reiterates the arguments presented to the Investigator, i.e., that Part 91 Carriers are not subject to the same training requirements as Part 121 and Part 135 Carriers. To support its argument, the Carrier cites American International Airways, 20 NMB 94 (1992), where the Board found a pilot over 60 eligible because he was subject to Part 91. The Carrier argues that its employees "may be assigned to work a flight on her/his initial date of hire" without training, testing, or certification. Therefore, Executive Jet asserts that the individuals in question should be allowed to "cast ballots."
The Board consistently requires evidence of performance of line functions in the craft or class to establish voter eligibility.
In Simmons Airlines, above at 230, the Board stated:
Factors such as accrual of seniority and receiving pay and benefits are not determinative of employee status absent substantive evidence of line work in the craft or class.
See also Gulfstream, above; America West Airlines, 18 NMB 240 (1991); America West Airlines, 16 NMB 135 (1989); and West Air, above. In American International Airways, above, the record established that the pilot continued to perform line functions in the craft or class after he turned 60.
There is no evidence that the three individuals at issue performed line functions as Flight Attendants as of the cut-off date. Therefore, the Investigator's ruling is upheld.
Tania H. Dermer, Paula J. Law, and Andrew F. Schell are not eligible. Their ballots, if cast, will not be counted. The count will take place as scheduled at 2 p.m., EDT, Wednesday, July 11, 2001.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Copies to: (See attached)
Mr. Ray Benning
Ms. Victoria Gray
Roland P. Wilder, Jr., Esq.