28 NMB No. 61

March 23, 2001

Harry J. Rissetto, Esq.

Sheldon M. Klein, Esq.

Counsel for Emery Worldwide Airlines

Morgan, Lewis & Bockius, L.L.P.

1800 M Street, NW

Washington, DC 20036-5869

Roland P. Wilder, Jr., Esq.

William R. Wilder, Esq.

Counsel for the IBT

Baptiste & Wilder, P.C.

1150 Connecticut Avenue., N.W.

Washington, DC 20036

Re: NMB File Nos. CJ-6671 and CJ-6672

Emery Worldwide Airlines

Gentlemen:

This determination addresses the January 11, 2001, Motion for Reconsideration filed by Emery Worldwide Airlines (EWA). EWA seeks reconsideration of the National Mediation Board's (NMB) January 9, 2001, determination providing an opinion to the National Labor Relations Board (NLRB) that EWA, when operating as a carrier, is subject to the Railway Labor Act (RLA), but that its Priority Mail Processing Centers (PMPCs) at issue in that case are not subject to RLA jurisdiction. Emery Worldwide Airlines, Inc., 28 NMB 216 (2001). For the reasons set forth below, the NMB finds EWA's request fails to state sufficient grounds to grant the relief requested.

On February 14, 2001, EWA filed a request for oral argument on its motion. For the reasons set forth below, that request is also denied.

I.

Background

In Emery Worldwide Airlines, above, the NMB found that the PMPCs operated separate from the airline operations. Therefore, the NMB held that based on the specific facts before it, EWA's PMPC operations are not covered by the RLA.

EWA's motion asserts three general arguments: 1) the NMB has committed a clear and patent violation of the RLA; 2) the NMB has departed without reason or rational basis from years of NMB and judicial case law and precedent; and 3) the NMB has reached an erroneous determination based on material errors of fact and law. EWA asks the NMB to assert jurisdiction over all EWA employees.

On January 30, 2001, the International Brotherhood of Teamsters (IBT) responded stating that EWA failed to present any point of law or fact that the NMB overlooked or misapplied. The IBT further states that EWA's motion rehashes arguments considered and rejected by the NMB. The IBT urges the NMB to deny the motion for reconsideration.

EWA replied to the IBT's response on February 6, 2001.

On February 14, 2001, EWA filed a request for oral argument. On February 20, 2001, the IBT filed a response opposing the request.

II.

A. EWA's Position

EWA presents three principal arguments. First, EWA states that "neither the statutory provisions of the RLA nor years of NMB precedent provide any support for the NMB's new jurisdictional test based upon when a carrier is 'operating as a carrier' and when it is 'not operating as a carrier.'" EWA argues that Section 181 of the RLA "neither requires nor permits a distinction between when a carrier is 'operating as a carrier' and when it is not, and the NMB has never before made such a distinction." EWA states that prior to this decision, the NMB consistently interpreted Section 181 to extend RLA coverage to all carrier employees who perform any service for the carrier. EWA notes that in Federal Express Corp., 23 NMB 32 (1995), the NMB asserted jurisdiction over Federal Express employees even though they were not directly engaged in the air transportation of the Carrier's freight. EWA states as follows:

[The] NMB has never before bifurcated a carrier based on specific functions that were being performed, never before purported to limit jurisdiction to only the core transportation functions, and never before put employees of a carrier under the National Labor Relations Act ("NLRA").

EWA argues that PMPC employees perform airline work involving the same functions as ground service and fleet service employees.

Second, EWA argues that the NMB committed gross error when it concluded that EWA does not "supervise and direct" the PMPC employees. EWA states that there is no dispute in the record that the PMPC workers are EWA employees. Specifically, the record establishes that PMPC workers are EWA employees, hired and supervised by other EWA employees. Further the PMPC workers, supervisors, and managers report "up the chain" to Jerry Trimarco, the co-president of EWA.

Third, EWA argues that the NMB's finding that the PMPCs operate separately from the airline operation is "factually erroneous and unsupported by record evidence." EWA states that the record demonstrates that PMPCs are directly connected to EWA's Network Management Center (NMC). The NMC determines which flights the priority mail is placed on through the PMPC's (the CART system) computer system. EWA also argues that the NMB has never determined jurisdiction based on whether a carrier conducted certain operations at locations separate from the carrier's "airport" operations. EWA notes that reservations operations and cargo-sorting operations are often in separate locations. EWA also states that the NMB has never determined jurisdiction based on whether a carrier operation had a separate management at a separate location. Citing the NMB's decision in Federal Express, above, EWA states the separate locations were irrelevant to the NMB's jurisdictional determinations. EWA also states that while the NMB concluded that "the PMPC employees do not interact with other EWA employees, indeed they do not even load and unload the aircraft," this factor has never before been determinative of RLA jurisdiction.

EWA requests oral argument in this matter because the NMB's "determination that certain employees of Emery Worldwide Airlines are not covered by the Railway Labor Act raises fundamental legal and policy questions going to the scope of the Railway Labor Act and the jurisdiction of the National Mediation Board." EWA further states that oral argument will assist the NMB in deciding this "important proceeding."

B. IBT's Position

The IBT states that EWA fails to present any point of fact or law that was overlooked or misapplied by the NMB. Therefore, the IBT argues that the motion should be denied.

Initially, the IBT notes that the NMB disfavors motions for reconsideration, and that such motions are only granted under extraordinary circumstances. Citing Virgin Atlantic Airways, 21 NMB 183 (1994), the IBT argues that EWA's motion fails to identify any aspect of the NMB's determination that "is fundamentally inconsistent with the proper execution of the NMB's responsibilities under the Railway Labor Act."

Regarding EWA's argument that the NMB's application of Section 181 was a material error of law, the IBT asserts that the interplay of the statutory sections demonstrates that an "employee" under Section 181 is not determined simply by reference to his or her employer. Rather, the IBT asserts, "it is the control exercised by a Carrier over traditional rail or air labor functions that determines coverage."

The IBT also argues that the NMB's determination is consistent with prior case law and precedent. The IBT states,

[A]lthough the Board did not apply a "work performed by rail carriers test" in this matter, its decision that the totality of the circumstances supported a finding that the separate PMPC operation was not subject to EWA's continuing authority, is consistent with this precedent."

IBT states that based upon the finding that the EWA's PMPC and air operations operated separately, the NMB properly determined that EWA lacked the authority to supervise and direct PMPC employees.

IBT also states that the NMB's determination is fully supported by substantial evidence. The IBT notes the separate PMPC operations do not support the Carrier's functions and are conducted and operated administratively separate from the Carrier.

The IBT also argues that EWA fails to show that the public interest would be served by a reversal of the NMB's determination. IBT states that, at best, EWA states that operation under the RLA and the National Labor Relations Act (NLRA) would "hamper its operations." The IBT notes that it has a long bargaining history with Emery Air Freight under the NLRA.

The IBT opposes EWA's request for oral argument. The IBT states that since EWA has failed to satisfy the NMB's preliminary requirements for reconsideration, oral argument is inappropriate.	III.

Discussion

A. Request for Oral Argument

The NMB conducted a three-day hearing in this case, received testimony from numerous witnesses, and accepted approximately 100 documents into the record. Requests for oral argument are granted when the NMB determines that oral argument would enhance its consideration or reconsideration of the investigation and factfinding processes. Upon review of this record and opinion, the NMB finds that oral argument would not add value to the investigation and factfinding processes in this case. Eastern Air Lines, Inc., 17 NMB 432, 441 (1990) (There is sufficient oral and written argument in the record, therefore, oral argument is unnecessary.); Air Canada, 6 NMB 610 (1978) (Further consideration through oral argument not warranted.) Accordingly, the request is denied.

B. Motion for Reconsideration

The NMB's Representation Manual (Manual) Section 17.0

states:

Motions for Reconsideration of Board decisions concerning jurisdiction . . . will be given consideration only upon the following circumstances . . . ) the motion states with particularity the points of law or fact which the movant believes the NMB has overlooked or misapplied and the detailed grounds for the relief sought.

The NMB finds that EWA has stated sufficient grounds to grant reconsideration.

C. Decision on Reconsideration

When the NMB reconsiders a determination, Manual Section 17.0 states:

[T]he NMB will decline to grant the relief sought absent a demonstration of material error of law or fact or under circumstances in which the NMB's exercise of discretion to modify the decision is important to the public interest. The mere reassertion of factual and legal arguments previously presented to the NMB generally will be insufficient to obtain relief. Reconsideration may not be sought from the Board's certification or dismissal.

The NMB grants relief upon motions for reconsideration in extremely limited circumstances. As the NMB stated,

The Board recognizes the vital importance of the consistency and stability of the law as embodied in . . . NMB determinations . . . . Accordingly, the Board does not intend to reverse prior decisions on reconsideration except in the extraordinary circumstances where, in its view, the prior decision is fundamentally inconsistent with the proper execution of the NMB's responsibilities under the Railway Labor Act.

Virgin Atlantic Airways, above at 186.

1. The Decision is Supported by the Statutory

Language and Precedent

EWA argues that the NMB's decision is not supported by the statutory language or precedent.1 Under the specific facts of this case, the NMB addressed an issue left open in Federal Express Corp., 23 NMB 32, 76 (1995). As the NMB stated in Emery Worldwide Airlines, above at 240:

In Federal Express, the Board also stated in reference to Section 181 of the Act that "[t]he limit on Section 181's coverage is that the carrier must have 'continuing authority to supervise and direct the manner and rendition of . . . [an employee's] service.'"

Based upon the language in Section 181, the NMB found that EWA (operating as a carrier) does not "supervise and direct" the PMPC employees due to the following specific factual findings:

1) the PMPCs operate out of a separate location;

2) the PMPC's management and operations have a distinct structure separate from EWA's management and operations; and

3) the PMPC employees do not interact with other EWA employees who work for the airline operation.

Contrary to EWA's argument, the NMB has not applied a new test regarding "airline work." The NMB looked at how removed the PMPC work was from the Carrier's operations. EWA's argument that the PMPC work is ground and fleet service work might be correct under a different set of facts. That argument, however, does not apply to the facts in this case. The work performed at the PMPCs is no different than that performed by Emery Air Freight employees. Indeed, the very PMPC work at issue in this decision is now being performed by U.S. postal employees covered under the NLRA.

2. EWA Reiterates Factual and Legal Arguments

EWA's other arguments supporting its request for reconsideration assert "gross error" in the NMB's factual conclusions and opinion. These factual and legal arguments were raised previously by EWA in the NMB's initial consideration of this case. Each argument was noted and considered in the findings of fact, discussion, and conclusion of the NMB's determination. EWA disagrees with the NMB's conclusion and merely reasserts factual and legal arguments previously presented to the Board. EWA's reassertions are insufficient to obtain relief.

CONCLUSION

The NMB has reviewed the EWA and the IBT submissions. The NMB drafted a very narrow decision in this case addressed to the facts and evidence before it. EWA has failed to state the points of law or fact the NMB overlooked or misapplied and, in general, merely reasserts arguments in its previous submissions. Therefore, any relief upon reconsideration is denied.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff