27 NMB No. 87

July 19, 2000

Thomas H. Wilson, Esq.

Ashley A. Smith, Esq.

Christopher V. Bacon, Esq.

Vinson & Elkins, LLP

2300 First City Tower

1001 Fannin Street

Houston, TX 77002-6760

Mr. R. Thomas Buffenbarger, International President

Mr. Robert Roach, Jr., General Vice President

David Neigus, Esq.

International Association of Machinists

and Aerospace Workers, AFL-CIO

9000 Machinists Place

Upper Marlboro, MD 20772-2687

Re:	NMB Case No. R-6747

Aeromexico/IAM&AW

Gentlemen:

This determination addresses the cross appeals filed by the International Association of Machinists and Aerospace Workers (IAM) and Aeromexico (Carrier) of Investigator Sean J. Rogers' eligibility rulings. For the reasons set forth below, the Investigator's rulings are sustained.

PROCEDURAL BACKGROUND

On April 25, 2000, the IAM filed an application seeking representation of the craft or class of Passenger Service Employees.1 The Carrier's Passenger Service Employees are currently unrepresented. After an investigation, on May 11, 2000, the Board found a dispute existed and authorized an election. Ballots were mailed June 9, 2000, and the count is scheduled for July 21, 2000.

On June 1, 2000, Aeromexico submitted a challenge and an Aeromexico Forma de Control de Personal (Personnel Control Form) claiming that Maria de los Angeles Flores was not longer working in the craft or class, but that she was employed as a Revenue Accountant, Accounting Department.

On June 2, 2000, the IAM submitted challenges supported by a signed, unsworn employee statement claiming that Elvia Reyes, Maria de los Angeles Flores,2 and Maria Anabell Carillo hold management positions. This was the only IAM challenge to the eligibility of Reyes, Flores and Carillo. In addition, IAM claimed that "Gloria Longoria is not a Passenger Service Employee but rather a PRAS Audit Specialist [and] . . . performs work involving the accounting system which is utilized exclusively by accounting personnel."

On June 8, 2000, Aeromexico responded to the IAM challenges asserting that Reyes and Carillo were not management officials and that Longoria was in the craft or class. The Carrier's submission was supported by an affidavit from Julia Langford, Manager, Revenue Optimization, and job descriptions for Revenue Optimization Analyst (ROA) and PRAS Agent.3 The Carrier noted that the ROA position was in this craft or class in the Board's previous representation election involving Aeromexico and the IAM. Aerovias de Mexico, S.A. de C.V. (Aeromexico Airlines), 24 NMB 627 (1997).

On June 20, 2000, the IAM responded to the Carrier's submission of June 8, 2000, claiming that based on the Carrier's job descriptions, Reyes, Carillo, and Longoria "are not in the craft or class of passenger service employees" and "they lack 'customer contact' that is the essence of the passenger service craft or class." In addition, the IAM asserted that "Reyes appeared at the [1997] ballot count and signed in as a representative of Aeromexico along with two other managers and the Carrier's counsel." The IAM supported this claim with a copy of the sign-in sheet from the 1997 count. Aerovias de Mexico, supra.

On June 21, 2000, the Carrier responded. The Carrier argued that the IAM's challenge to Reyes and Carillo "was not raised by the June 2, 2000 deadline and was therefore waived." The Carrier also argued that Reyes and Carillo are properly included in the craft or class of Passenger Service Employees because they service Aeromexico passengers and are functionally integrated with other Passenger Service Employees. The Carrier also reasserted that Longoria was a member of the craft or class.

On June 23, 2000, the Investigator found that a majority of Longoria's work time was not in the Passenger Service Employee craft or class and, therefore, she was deleted from the eligibility list. The Investigator also found that Reyes and Carillo were not management employees, and the IAM's June 20, 2000, claim that Reyes and Carillo lack customer contact was untimely.

The Carrier appealed the Investigator's ruling to the Board on June 29, 2000, and the IAM appealed on June 30, 2000. On July 7, 2000, the Carrier and IAM submitted final responses. The participants' responses reiterated their claims and assertions from the earlier appeals.

DISCUSSION

In representation cases, the burden of persuasion required to overrule an Investigator's preliminary determination rests with the participant appealing that ruling.

Section 4.6 of the Board's Representation Manual states, in pertinent part:

Absent extraordinary circumstances, evidence submitted on appeal will not be considered by the Board unless it has been submitted to the Investigator initially. It is the responsibility of the submitter to demonstrate extraordinary circumstances when additional evidence is presented on appeal.

Gloria Longoria, PRAS Agent

The Carrier's PRAS Agent job description establishes that Longoria's duties are office/clerical duties. Langford's affidavit concerning the actual work Longoria performs supports the job description. Specifically, Langford states that Longoria "functions as a back up to the ticket agents." (Emphasis added). The Investigator found that, particularly based on the Carrier's PRAS Agent job descriptions and Langford's affidavit, that a preponderance of Longoria's work is office/clerical duties. He concluded she was not a member of the Passenger Service Employees craft or class. The Investigator's ruling is sustained.

Elvia Reyes and Maria Anabell Carillo,

Revenue Optimization Analysts

Initially, the IAM claimed that Reyes and Carillo were management officials. In opposing this claim, the Carrier noted that ROA's were included in the craft or class in the previous election involving these participants. Aerovias de Mexico, supra (count and dismissal); Aeromexico, 24 NMB 332 (1997) (craft or class determination). On June 20, 2000, after the Carrier's submission opposing the IAM challenge, and after the June 2, 2000, deadline for challenges and objections, the IAM next claimed that the ROA's were not part of the Passenger Service Employees craft or class because they lacked "customer contact."

The Investigator found that based on the record developed by both participants, including particularly the ROA job description and Langford's affidavit, Reyes and Carillo did not exercise management control over Aeromexico employees. He also found that the June 20, 2000, IAM challenge, that Reyes and Carillo lack customer contact sufficient to place them in the Passenger Service Employees craft or class, was untimely.

The IAM did not appeal the Investigator's finding that the ROA's are not management officials. The IAM says the second challenge is timely based on a single sentence within the signed, unsworn employee statement attached to the IAM's timely challenge of June 2, 2000. The unsworn statement states:

We would like to draw attention to three names which have been submitted as Passenger Service Employees, Elvia Reyes (Revenue Optimization Analyst), Maria De Los Angeles Flores (Revenue Optimization Analyst) and Maria Anabell Carillo (Customer Service Rep I). As of May 16, 2000 Maria De Los Angeles Flores was transferred to the Accounting Department, which is not in the eligible voting group. Maria Anabell Carillo (Customer Service Rep I) has been promoted to Revenue Optimization Analyst. Let it be known that Elvia Reyes and Maria Anabell Carillo hold management positions within the company. Their primary job functions in the Yield Optimization Department include, flight inventory control and supervising seven Group Agents (Customer Service Rep I). Their supervision involves monitoring, reprimanding and handling escalated calls from irate passengers. They do not make reservations nor handle sales calls. Furthermore, they are categorized under a management grade pay scale. Please reconsider their eligibility to vote since they are actually Yield Management Employees.

(emphasis added).

Specifically, the IAM says this second claim was raised on June 2, 2000, based on the single underlined sentence. The IAM admits the challenge was "obliquely raised in an affidavit"4 in the June 2, 2000, challenge letter signed by R. Thomas Buffenbarger, IAM International President. The IAM also notes the challenge letter "was not written by counsel." The record establishes that on May 2, 2000, Buffenbarger and two other IAM officials filed Notices of Appearance in this case. When participants' representatives are identified by a Notice of Appearance, the Board cannot discriminate among their submissions.

The IAM's arguments on timeliness are not supported by the record. The plain meaning and context of the entire paragraph, which contains the single sentence above, establishes the IAM's June 2, 2000, challenge asserted only that the ROA's were management officials.

The Board finds the IAM's June 20, 2000, challenge to the ROA's inclusion in the Passenger Service Employees craft or class was untimely. Therefore, the Investigator's ruling is sustained.

CONCLUSION

The Investigator's rulings are sustained. The Board finds the PRAS Agent is ineligible and the ROA's are eligible to vote in the Passenger Service Employees craft or class. The count will take place as scheduled at 2:30 p.m., eastern time, Friday, July 21, 2000.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff