September 12, 2001
Ms. Rose Doria
Vice President-Employee Relations
Michelle A. Peak, Esq.
American Eagle Airlines, Inc.
4333 Amon Carter Boulevard
Ft. Worth, TX 76155
John J. Gallagher, Esq.
Counsel for American Eagle
Paul, Hastings, Janofsky & Walker
1299 Pennsylvania Avenue, NW.
Washington, DC 20004
Mr. Larry Cohen
Executive Vice President
Nicolas Manicone, Esq.
Communications Workers of America, AFL-CIO
501 Third Street, NW.
Washington, DC 20001
Re: NMB Case No. R-6825
Dear Ms. Doria, Ms. Peak and Gentlemen:
This determination addresses the appeals filed by the Communications Workers of America (CWA) of certain eligibility rulings made by Board Investigator Susanna Fisher. For the reasons set forth below, the Board upholds the Investigator's rulings with the exception of three individuals.
On June 25, 2001, the CWA filed an application seeking to represent Passenger Service Employees at American Eagle Airlines, Inc. (Eagle or Carrier). The Board found a dispute existed on July 17, 2001, and authorized an all mail ballot election using a cut-off date of June 15, 2001. Ballots were mailed on August 10, 2001, and the count is scheduled for September 12, 2001.
On July 27, 2001, the Board received the CWA's objections to the List of Potential Eligible Voters. On August 8, 2001, the Carrier responded. At the Investigator's request, the Carrier supplied additional information on August 24, 27, and 28, 2001.
I. Durango, Colorado Passenger Service Employees
The CWA challenged 34 Passenger Service Agents based at the Durango, Colorado station for three reasons. First, CWA argued that these employees only service American Airlines flights. Therefore, these employees do not share a work-related community of interest with Eagle Passenger Service Employees. Second, the CWA stated that these employees are "seasonal workers whose employment relationship with American Eagle terminated when operations closed after the ski season in Spring 2001." Finally, the CWA stated that since the Durango station will not reopen, the Durango employees do not have a "reasonable expectation of future employment."
The Carrier argued that the Durango employees are properly included on the List of Potential Eligible Voters. The Carrier asserted that Durango employees are listed as Eagle employees even when the Durango station is closed and can use their travel passes on American Airlines and American Eagle throughout the year. Eagle has submitted a declaration from Rose Doria, Vice President Employee Relations of American Eagle Airlines, Inc., stating that the Durango agents have a reasonable expectation of continued employment and the majority of the 2001 Durango employees worked for Eagle the previous ski season.
The Investigator ruled that the 34 Durango based Passenger Service Agents are eligible. In support of this decision, the Investigator cited the following :
The Durango employees' history lists each employee as "active." The Durango agents are associate employees. According to the Eagle Employee Handbook (Handbook), associate employee status "is reserved for situations when help is needed for limited periods of time on an on-going basis. For example, the passenger traffic at a particular airport may increase substantially around certain holidays or special events." The Handbook also states that associate employees earn one round trip pass on American Eagle/American Airlines for every 30 hours worked. Although the Handbook states, "Length of employment for an associate employee is unlimited as long as the employee works at least once each six (6) calendar months," the evidence establishes that the Carrier classifies Durango agents as associate employees.
The CWA appealed the Investigator's ruling on the eligibility of Durango Passenger Service Agents. The Organization contends that the Durango employees are not furloughees as defined by Evergreen International Airlines, 19 NMB 182, 184 (1992) (furloughed employees are eligible unless recall rights have expired, they have refused recall or their positions have been permanently eliminated ). Therefore, the CWA argues that these employees are "seasonal employees" whose relationship with the Carrier is too attenuated to constitute continued employment. The CWA cites Air Transport International, Inc., 24 NMB 263, 272-75 (1997), USAir, 17 NMB 117 (1990), and Eastern Air Lines, Inc., 6 NMB 561, 566 (1978) in support of this contention. Moreover, CWA asserts that the Durango employees cannot be classified as "associate" employees because the Handbook states that "to continue employment an Associate must work 'at least once each six (6) calendar months.' "
In response to the appeal, Eagle points out that "associate" employees, as defined by American Airlines' similar personnel policy, were ruled eligible in American Airlines, Inc., 26 NMB 106, 112 (1998). Eagle argues that similar to American, Eagle also deducts federal and state taxes plus FICA from the individuals' paychecks. Eagle argues that the facts in this case are in stark contrast to the facts presented in Air Transport, above. Eagle maintains that the USAir decision cited by the CWA has insufficient facts in the opinion to compare with the Durango employees since the union withdrew its challenge regarding the seasonal employees. Eagle also argues that Eastern Air Lines, above, actually supports the inclusion of the Durango employees since the facts in the record here place the Durango employees squarely in the same category as Eastern's eligible "designated part-time employees" rather than Eastern's ineligible "special part-time employees."
Eagle states that the Durango jobs are not sporadic and unpredictable. Durango employees work 40 hours per week for an identifiable period of time which they know will recur each year. The Carrier argues that the best evidence that the Durango employees have a reasonable expectation of continued employment is the fact that 75% of the employees in question have multiple years of service. Moreover, the Carrier submitted a press release stating that it will begin providing year-round service to Durango in December, 2001.
Manual Section 5.301 provides guidelines for determining the eligibility of part-time employees in part, as follows:
When investigating the eligibility of a part-time employee, the [Investigator] should determine (a) if the employee works an identifiable schedule during a specified time period; (b) whether the employee regularly relieves other employees; (c) what benefits the employee receives; (d) what deductions are taken from the employee's pay; and (e) any other relevant facts . . . .
The [Investigator's] determination of eligibility . . . must take into consideration the varied operating practices on different Carriers . . . .
Manual Section 5.302 provides, in part:
[O]nly those employees with a present interest regarding the craft or class in dispute are eligible to vote in an NMB representation election. Such policy is implemented with respect to temporary employees by examining whether or not the employees in question have a reasonable expectation of continued employment or re-employment in the craft or class.
These employees work 40 hours per week during the ski season which is approximately late November until mid-April. Further, the Carrier deducts federal and state taxes plus FICA from the individuals' weekly paychecks. Carrier documents list each employee as active and lists company seniority dates ranging from 1994 to 2000. The documents show that 75% of the Durango Passenger Service Agents who worked during the 2000-2001 ski season were rehired from the previous years.
Durango employees receive travel benefits which they can exercise throughout the year. The Handbook states that travel privileges cease upon termination of employment with Eagle. Even when the Durango station is closed, these employees remain listed as active and can use their passes on American Airlines and Eagle flights. The record in this case establishes that Eagle's Durango Passenger Service Agents work regular, identifiable schedules and receive travel benefits.(1) The Investigator's ruling is upheld.
II. Employees Allegedly Not in the Craft or Class: Cruz, Figeroa, Martinez and Ramachandran
The CWA challenged the eligibility of Rafael Cruz, Lissette Figeroa, Jeffrey Martinez and Govi Ramachandran because they do not perform Passenger Service functions. In response, Eagle asserts that these individuals have job classifications which are within the Passenger Service craft or class, and perform support services that are "so intimately connected with the Agents' functions that they have a work related community of interest" with Passenger Service Employees.
The Investigator ruled that Cruz, Figeroa, Martinez, and Ramachandran were eligible based upon the evidence submitted.
The CWA appealed the Investigator's ruling stating that these four employees do not perform work in the Passenger Service craft or class as defined by United Airlines, Inc., 6 NMB 180 (1977).
Eagle responded to the CWA's appeal stating that the NMB recognizes that administrative work in support of the Passenger Service function is included in the craft or class. Laker Airways, Ltd., 8 NMB 158 (1980). In addition the Carrier stated that these four employees work closely with other agents and appear on the Passenger Service Seniority lists for each station.
The Carrier submitted a declaration from Rose Doria, Vice President Employee Relations of American Eagle Airlines, Inc. According to Doria, Rafael Cruz and Lissette Figeroa "perform functions integrally related to the Passenger Service craft or class because he/she is involved in manning and assigning shifts exclusively for other Agents in the Passenger Service craft." Doria states that Jeffrey Martinez "stocks the ticket counters and orders uniforms for agents." Doria asserts that Govi Ramachandran "is a Lead Passenger Service Agent who makes up bid sheets for Agents and assigns their scheduling."
Documents show that although Rafael Cruz is listed under the general heading of "Support Representative," he does not bid for shifts. Similarly, while Lissette Figeroa's title is "Support Representative," she is listed as an Administrative Assistant on the San Juan Passenger Service Seniority List. Figeroa does not have a seniority date. The evidence establishes that while Jeffrey Martinez's title is "Support Representative," he is listed as an Administrative Assistant Stock Clerk on the San Juan Passenger Service Seniority List. Martinez does not have a seniority date. Govi Ramachandran's title is "Lead Agent Passenger Service" and he is listed as a team lead on the DFW Passenger Service Seniority List. The evidence is that Ramachandran bids for shifts.
The Board makes determinations of eligibility within a particular craft or class based to a great extent upon a work-related community of interest. LSG Lufthansa Services, Inc., 25 NMB 96 (1997); Atlantic Southeast Airlines, Inc., 23 NMB 23 (1995); America West Airlines, Inc., 22 NMB 54 (1994); Southwest Airlines, 20 NMB 116 (1992); USAir,15 NMB 369 (1988). In determining whether there is a work-related community of interest, the Board examines the actual duties and responsibilities of employees, and not merely job titles. USAir, Inc., 21 NMB 402 (1994); America West Airlines, 13 NMB 346 (1986); British Airways, Inc., 10 NMB 174 (1988); American Airlines, Inc., 10 NMB 26 (1982).
Manual Section 5.1 also provides guidance in this area, citing "general factors to be considered . . . including the functions, duties and responsibilities of the employees; the general nature of their work; and the extent of community of interest existing between job classifications."
The Board has frequently held that "The essence of passenger service is 'customer contact'." US Airways, Inc., 27 NMB 138, 156 (1999) (citing American Airlines, 26 NMB 106, 119 (1998); China Airlines, Ltd., 6 NMB 434 (1978)). Customer contact is not the only factor which is considered, but it is a factor which is integral to the craft or class.
An analysis of these individuals' actual job functions leads the Board to conclude that, Rafael Cruz, Lissette Figeroa and Jeffrey Martinez perform functions which are Office Clerical in nature. The record does not establish that Cruz, Figeroa, or Martinez perform Passenger Service functions or share a work-related community of interest with Passenger Service Employees. Therefore, they are ineligible to vote.
Govi Ramachandran bids for and works shifts as a Lead Passenger Service Agent. Therefore, the Investigator's decision regarding Ramachandran is sustained.
III. Blanchette, Carman, Deering and Ramsey
The CWA appealed the Investigator's ruling concerning Blanchette, Carman, Deering and Ramsey.
On September 5, 2001, the Carrier submitted status changes. Blanchette, Carman, Deering and Ramsey were included in those status changes. The Carrier submitted employee history documents establishing that Carman, Deering and Ramsey were separated from employment with Eagle. The Carrier also presented evidence that Blanchette is presently working in the Flight Attendant craft or class. Manual Section 5.303 states that "Employees who leave the craft or class prior to the ballot count are not eligible." These four individuals are ineligible and were removed from the List of Eligible Voters. See September 12, 2001, letter of Susanna Fisher.
The Board upholds the Investigator's rulings that Durango Passenger Service Agents are eligible. The Board upholds the Investigator's ruling that Ramachandran is eligible. Martinez, Figeroa and Cruz are ineligible. Blanchette, Carman, Deering and Ramsey are ineligible as reflected in September 12, 2001, letter of Susanna Fisher.
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
1. The status of the Durango employees is more analogous to the "designated part-time employees" than the "special part-time employees" discussed in Eastern Airlines above.