27 NMB No. 8

October 20, 1999

Christy Concannon, Esq.

Counsel for IBT

Baptiste & Wilder, P.C.

1150 Connecticut Avenue, NW.

Suite 500

Washington, DC 20036

Timothy L. Covington, Esq.

Counsel for Gulfstream International

Ford & Harrison, LLP

1275 Peachtree Street, N.E., Suite 600

Atlanta, GA 30309

Re:	NMB Case No. R-6696

Gulfstream International Airlines, Inc.

Dear Ms. Concannon and Mr. Covington:

This determination addresses the International Brotherhood of Teamsters' ("IBT" or "Organization"), October 7, 1999, appeal of Investigator Mary L. Johnson's eligibility rulings. For the reasons set forth below, the appeal is granted.

PROCEDURAL BACKGROUND

On August 13, 1999, the Board received an application from the IBT covering the craft or class of Pilots of Gulfstream International Airlines, Inc. ("Gulfstream" or "Carrier"). Gulfstream's Pilots are currently represented by the Gulfstream Pilots Association ("GPA"). After an investigation, the Board found a dispute to exist and authorized an election on August 31, 1999. The cut-off date was established as July 31, 1999. Ballots were mailed on September 22, 1999, and the count is scheduled for October 21, 1999.

On September 9, 1999, the IBT filed challenges and objections to the list of eligible voters. The Organization challenged the eligibility of several individuals, including twenty-two "Pay-For-Time Pilots." The IBT argued that the Pay-For-Time Pilots were ineligible because they were "temporary," paid the Carrier for flight hours, and did not share working conditions with the employees in the craft or class. According to the Organization, these individuals were not on the seniority list and could not bid for routes. In support of its contentions, the IBT submitted a declaration from Captain Matthew Goss.1

The Carrier responded to the challenges on September 22, 1999. The Carrier maintained that the pilots at issue had an employee-employer relationship as of the cut-off date. According to Gulfstream, the Carrier "runs a unique program," through the Gulfstream Training Academy (GTA), where an individual pays "for 250 hours of flight time as a first officer" for Gulfstream. The Carrier asserted that Gulfstream paid these individuals $8.00 an hour for the work they performed as first officers. In addition, Gulfstream asserted that the Carrier had the authority to discipline and terminate these individuals. Gulfstream also argued that these pilots had a reasonable expectation of continued employment because out of 155 Gulfstream pilots, 125 had participated in GTA. The Carrier admitted that these individuals did not share the same working conditions as pilots, but asserted that they were included on the seniority list "and regularly bid for routes and schedules." In addition, the Carrier stated that from March of 1997 to December 1998, only four of the eighty-seven Pilots who participated in GTA "did not remain on as employees of Gulfstream once they had completed the program."

In support of its position, the Carrier provided a declaration from Chief Pilot Mark Reichard, as well as a copy of the "agreement" between GTA and Gulfstream regarding "Professional Airline Pilot Training." The Carrier did not provide copies of bid sheets.

The IBT filed a reply on September 28, 1999. The Organization argued that the Pilots at issue were ineligible "trainees," citing America West Airlines, Inc., 18 NMB 140 (1991); Simmons Airlines, 15 NMB 228 (1988); and WestAir Commuter Airlines, 15 NMB 213 (1988). The IBT also cited Independent Federation of Flight Attendants v. Trans World Airlines, Inc., 819 F.2d 839 (8th Cir. 1987) (IFFA v. TWA) in support of its position. The Organization noted portions of the agreement between Gulfstream and GTA which state that while Gulfstream will "use its best efforts to hire candidates as permanent employees or . . . place them on a preferred hiring list . . ." there is no guarantee of a permanent position.

On October 1, 1999, the Carrier filed its response to the IBT's September 28, 1999, reply. Gulfstream argued that the individuals at issue met the eligibility standard set forth in IFFA v. TWA, supra. The Carrier also argued that these pilots were not "trainees" but "probationary employees,"2 and that sixteen of them had completed their Initial Operating Experience (IOE)prior to the cut-off date. Gulfstream provided copies of the line check forms for these individuals which indicate that they had completed their IOE. The Carrier also reiterated its assertion that these individuals bid for flights. Finally, Gulfstream maintained that it had demonstrated that when "the Pilots have successfully completed the program, they have . . . more than a reasonable expectation of continued employment."

On October 1, 1999, the Investigator ruled that the sixteen individuals who had completed their IOE by the cut-off date were eligible. The IBT appealed the ruling on October 7, 1999. The Carrier did not file a response to the IBT's appeal.

DISCUSSION

I.

In Simmons Airlines, supra, the Board stated:

For the Board to find trainees eligible, the Board must be presented with evidence that the individuals in question have performed line functions in the craft or class as of the cut-off date. Factors such as accrual of seniority and receiving pay and benefits are not determinative of employee status absent substantive evidence of performance of line work in the craft or class. (emphasis added).

15 NMB at 230.

See also, America West, supra, Rosenbalm Aviation, 15 NMB 313 (1988); and Midway Commuter, 15 NMB 278 (1988). In Rosenbalm, and Simmons, the Board found that without successful completion of IOE, performance of line functions as part of a training program was insufficient to qualify as a member of a craft or class.

In IFFA v. TWA, supra, at 845, the Court held that individuals who had not performed services for the Carrier "under its supervision" were not employees within the meaning of the Railway Labor Act (RLA). The Court specifically cited 45 U.S.C. § 181, which extends RLA coverage to "every air pilot or other person who performs any work as an employee or subordinate official . . . subject to its or their continuing authority to supervise and direct the manner of rendition of his service."

II.

The Board's review of the record establishes that while by July 31, 1999, the sixteen Pay-For-Time pilots had successfully completed their IOE, the Carrier's assertion that these individuals bid and flew the line in revenue service prior to July 31, 1999, was not supported by sufficient evidence. It is the Board's view that in order to be eligible, these Pay-For-Time pilots must have performed line functions as of the cut-off date. Therefore, the Board finds that the sixteen Pilots are ineligible. Their ballots, if cast, will not be counted. The count will take place as scheduled at 2:00 p.m., Thursday, October 21, 1999.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copies:

Mr. Ray Benning

Roland P. Wilder, Esq.

Mr. Matthew Goss

Mr. Thomas L. Cooper

Joseph Z. Fleming, Esq.