ALI-ABA Course of Study Airline and Railroad Labor and Employment Law: A Comprehensive Analysis April 15-17, 2010 Washington, D.C.

Transcription

1 203 ALI-ABA Course of Study Airline and Railroad Labor and Employment Law: A Comprehensive Analysis April 15-17, 2010 Washington, D.C. Carrier Election Campaigns By Michael L. Lowry Douglas W. Hall Sarah L. Fuson Ford & Harrison LLP Atlanta, Georgia

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3 205 CARRIER ELECTION CAMPAIGNS By Michael L. Lowry Douglas W. Hall Sarah L. Fuson I. THE CRAFT OR CLASS DETERMINATION Management s first step after a union files an application for investigation of a representation dispute with the National Mediation Board ( NMB ) is to assess its workforce and identify which employees fall within the craft or class named in the union's application. A. Typical Crafts or Classes Certain crafts or classes of employees are well recognized in the airline industry. These include: 1. Mechanics and Related Employees. See Airtran Airways, Inc., 28 NMB 603 (2001); United Airlines, Inc. 28 NMB 533 (2001). The Board has also found this class to include a variety of "related" employees not traditionally considered to be mechanics. See United, 32 NMB 75 (2004); Spirit Airlines, 33 NMB 363 (2006) (Records Analysts, Technical Publications, and Maintenance Instructors); US Airways, 28 NMB 350 (2000) (Quality Assurance Consultants); United Parcel Service Company, 27 NMB 3 (1999); Allegheny Airlines, Inc., 26 NMB 487 (1999) (Maintenance Controllers); US Airways, 26 NMB 359 (1999) (Maintenance Operations Control Supervisors); Pacific Southwest Airlines, 14 NMB 10 (1986) (Flight Simulator Technicians); U.S. Air, 8 NMB 524 (1981) (Technical Specialists); Allegheny Airlines, Inc., 6 NMB 359 (1977) (Planners, Maintenance Planners, and Technical Specialists); World Airways, Inc., 7 NMB 420 (1980) (Maintenance Training Instructor, Senior Technical Writer, Technical Writer, Production Planners, Specialist Avionics, and Specialist Sheet Metal); United Airlines, Inc., 6 NMB 252 (1977) (Meteorologists); United Air Lines, Inc., 22 NMB 12 (1994) (Cabin servicemen); Frontier Airlines, 29 NMB 028 (2001) (Tool room attendants); United Airlines, 28 NMB 291 (2001) (Draftsmen). 2. Stock Clerks. See Piedmont Airlines, 32 NMB 124 (2004); Frontier Airlines, Inc., 32 NMB 57 (2004); American Trans Air, Inc., 28 NMB 579 (2001); El Al Israel Airlines, 12 NMB 279 (1985)

4 Pilots or Flight Deck Crew Members. See CJ Systems Aviation Group, Inc., 31 NMB 474 (2004); Ryan International Airlines, 25 NMB 440 (1998); ABX Air, 22 NMB 131 (1995); United Air Lines, 3 NMB 56 (1961) (flight engineers). 4. Flight Attendants. See North American Airlines, 32 NMB 228 (2005); Executive Jet Aviation, Inc., 28 NMB 471 (2001); Aloha IslandAir, 25 NMB 290 (1998). This class also includes flight attendant check airmen and part-time instructors. See Comair, 22 NMB 175 (1995); ValuJet Airlines, 22 NMB 242 (1995); compare Comair, 28 NMB 251 (2000) ("full-time Training Instructors are not included in the craft or class of Flight Attendants"). 5. Dispatchers. See Ryan International Airlines, 33 NMB 12 (2005); Piedmont Airlines, Inc., 32 NMB 126 (2004); Spirit Airlines, Inc., 27 NMB 376 (2000). 6. Office Clerical Employees. See Pakistan International Airlines Corp, 29 NMB 156 (2002); United Airlines, 27 NMB 356 (2000); Laker Airways, 8 NMB 158 (1980); see also American Airlines, 21 NMB 60 (1993) (finding load planners part of Office-Clerical craft or class). 7. Fleet and Passenger Service Employees. Fleet service employees typically include baggage handlers and sorters, ramp equipment operators, and freight loaders. Passenger Service Employees usually include ticket agents, reservations agents and cargo agents. These employees may be combined or separated into distinct crafts or classes. See Pinnacle Airlines Corp., 29 NMB 398 (2002); AirTran Airways, Inc., 28 NMB 550 (2001) (proper craft or class at AirTran is Fleet and Passenger Service Employees); CCAir, Inc., 28 NMB 267 (2001); Simmons Airlines, 15 NMB 124 (1988); Britt Airways, 10 NMB 137 (1983) (Fleet and Passenger Service Employees); Air Micronesia, 10 NMB 73 (1982) (Fleet and Passenger Service Employees); Industry Memorandum, 5 NMB 1 (1972); Continental Airlines, 24 NMB 196 (1997); Northwest Airlines, 26 NMB 77 (1998); Laker Airways, 8 NMB 158 (1980); Southwest Airlines, 21 NMB 116 (1992) (refusing to sever customer service employees from passenger service employees); National Airlines, 27 NMB 550, 555 (2000) (the essence of passenger service is "customer contact"); Northwest Airlines, 14 NMB 76 (1986) (combining office clerical, fleet service and passenger service employees based on strong historical work related community of interest). Compare USAir, 15 NMB 369 (1988) (Fleet and Passenger Service Employees craft or class found inappropriate where a group of employees who regularly performed fleet service functions existed); Continental Airlines, 10 NMB 433 (1983) (Fleet and Passenger Service Employees craft or class found inappropriate on larger carrier with greater specialization in employee functions); Jet America, Inc., 10 NMB 159 (1983) (Fleet and Passenger Service Employees craft or class found inappropriate on carrier with separate, specialized job classifications, little functional integration in fleet and passenger service duties, and no strong community of interest between the two groups). 8. Miscellaneous Crafts or Classes - 2 -

5 207 a. Flight Instructors. See Continental Airlines, Inc./Continental Express, Inc., 28 NMB 001 (2001). b. Ground School Instructors. See Continental Airlines, Inc./Continental Express, Inc., 27 NMB 459 (2000); Delta Air Lines, 26 NMB 391 (1999). c. Engineering and Related Employees. See US Airways, Inc, 28 NMB 485 (2001); Frontier Airlines, Inc., 7 NMB 84 (1979). d. Flight Simulator Technicians. See Southwest Airlines Co., 31 NMB 301 (2004); Continental Airlines, Inc./Continental Express, Inc., 28 NMB 307 (2001); Northwest Aerospace Training Corp., 21 NMB 47 (1993). e. Skycaps. See Quality Aircraft Services, Inc., 27 NMB 300 (2000). f. Baggage Handlers. These employees are normally part of the class of "Fleet and Passengers Service," above. But see Command Security, 29 NMB 090 (2001). B. Challenging An Inappropriate Craft Or Class There are at least two situations in which a carrier may wish to challenge a union's application as including an inappropriate set of employees. In the first situation, a carrier may disagree with the union's inclusion or exclusion of certain employees from the craft or class in question. The National Mediation Board analyzes a number of factors in determining whether a group of employees should be included within a given craft or class. These factors include: "functional integration, work classifications, terms and conditions of employment, and workrelated community of interest." United Parcel Service, 33 NMB 307 (2006); United Air Lines, Inc., 32 NMB 5 (2004); Airtran Airways, Inc., 28 NMB 603 (2001); see also Frontier Airlines, Inc., 29 NMB 28 (2001); Continental Airlines, Inc./Continental Express, Inc., 26 NMB 143 (1999). The Board has noted that the factor of work-related community of interest is "particularly important." Airtran Airways, Inc, supra. Notably, the NMB "makes craft or class determinations on a carrier by carrier basis, in view of Board policy and precedent." Id. While this situation usually arises in the pre-election context, a conflict may also arise post-election in situations where a union applies to accrete of a group of employees into a certified craft or class. The Board uses the same method of assessment it uses pre-election to determine whether to accrete the sought-after group. If the Board finds that an accretion is appropriate, it generally will dismiss the union's application on grounds that an election is unnecessary because the employees at issue are already covered by the Board certification. For example, in Frontier Airlines, Inc., 29 NMB 28 (2001), the IBT sought a post-election accretion of Tool Room Attendants into the craft or class of "Mechanics and Related Employees" for which it had recently become the representative. The IBT contended that an accretion was appropriate because Tool Room Attendants shared a work-related community of interest with Mechanics and Related Employees. Frontier Airlines claimed the application should be rejected because there was no showing of interest and that Tool Room Attendants are stock and stores employees who should be included in the Stock and Stores Employees craft or class. Frontier also protested the IBT's failure to explain why the Tool Room Attendants were not included in - 3 -