29 NMB No. 82

August 29, 2002

Mr. Daniel A. Wolf, President

Hyannis Air Service, Inc.

Ms. Lisa Kiele Price,

Vice President

(Nantucket Airlines-d/b/a Cape Air)

Barnstable Municipal Airport

660 Barnstable Road

Hyannis, MA 02601

Roger Briton, Esq.

Jackson, Lewis, Schnitzler & Krupman

1000 Woodbury Road

Suite 402

Woodbury, NY 11797

Mr. Ray Benning, Director

National Airline Division

International Brotherhood of Teamsters

6242 Westchester Parkway, Suite 250

Los Angeles, CA 90045-4820

Roland Wilder, Esq.

Baptiste & Wilder, P.C.

1150 Connecticut Ave., NW.

Suite 500

Washington, DC 20036

Mr. Don Treichler

International Representative

International Brotherhood of Teamsters

7306 School House Lane

Roseville, CA 85746

Re:	NMB Case No. R-6894

Hyannis Air Services, Inc./IBT

Gentlemen and Ms. Price:

This determination addresses Hyannis Air Services', Inc. (Hyannis or Carrier) appeal of Investigator Sean J. Rogers' eligibility rulings. For the reasons discussed below, the appeal is denied.

PROCEDURAL BACKGROUND

On June 14, 2002, the International Brotherhood of Teamsters (IBT) filed an application to represent the Hyannis Pilots craft or class. At the time of the IBT application, the craft or class was unrepresented. On June 27, 2002, the National Mediation Board (Board) received Hyannis' List of Potential Eligible Voters.

On July 19, 2002, the IBT challenged the eligibility of 24 pilots. The IBT also raised questions concerning the accuracy of the addresses of four eligible employees who were on military leave of absence. On July 26, 2002, Hyannis responded to IBT's challenges.

On July 26, 2002, the Board mailed the ballots, which will be counted on August 30, 2002. Pursuant to the Board's Representation Manual (Manual) Section 12.205, all of the employees whose eligibility were challenged were sent "challenged" ballots.

On July 31, 2002, IBT replied to Hyannis' response.

On August 6, 2002, the Investigator ruled on the IBT's challenges. The Investigator also concluded that the record developed by Hyannis and the IBT contained accurate addresses for the four employees on military leave.

On August 12, 2002, the Carrier appealed the Investigator's rulings that 11 on-call pilots and one pilot in Lebanon, who did not have a visa enter to the United States, were ineligible. On August 16, 2002, IBT responded to the Carrier's appeal.

INVESTIGATOR'S RULINGS

I.

Hyannis' On Call Pilots

Eleven pilots on the list of potential eligible voters are classified by Hyannis as "On-Call Employees." IBT challenged these pilots' eligibility asserting they have only a casual employment relationship with the Carrier. The Investigator concluded:

When considered in its totality, the record establishes that the on-call employees have a casual employment relationship with Hyannis. Therefore, pursuant to Manual Section 5.301, on-call employees are not eligible voters.

II.

Antoine Akoury

IBT challenged Antoine Akoury's eligibility claiming that he did not have a present employment relationship with Hyannis and that he was in Lebanon without a visa to enter the United States. The Investigator concluded:

There is no evidence that Akoury has a present employment relationship with Hyannis and he was not working regularly in the craft or class on the eligibility cut-off date. In addition, since he is in Lebanon, he is beyond the jurisdiction of the Board and the Railway Labor Act. Therefore, pursuant to Manual Section 5.303, he is not an eligible voter.

HYANNIS' APPEAL

I.

On-call Pilots

Hyannis appeals the Investigator's ruling pursuant to Manual Section 4.6. The Carrier argues

[t]hat this ruling is inconsistent with the rule governing election eligibility and settled Board precedent and inappropriately minimizes (or ignores) the contribution of the on-call pilots, to the Carrier's unique operating structure, their expectation of continued employment, and the substantial indicia of their regular part-time employment status, all of which gives them a meaningful interest in the outcome of this election.

Hyannis argues that its business is heavily seasonal and requires "demand scheduling," so on-call pilots have been a regular feature of flight operations. Hyannis says on-call pilots are treated the same as full-time pilots for tax purposes and receive a variety of benefits on the same basis as full-time pilots. Hyannis says the on-call pilots do receive lesser, but substantial benefits compared to full-time or part-time pilots. Hyannis argues that this difference "stands to reason" since an employee who works fewer hours than a full-time or part-time employee would receive lesser benefits.

According to Hyannis, ten of the on-call pilots have worked for Hyannis for more than two years; five for more than four years; and only one was hired recently, in 2001. These examples of long service by on-call pilots demonstrate their reasonable expectation of continued employment, Hyannis asserts. Hyannis also argues that while on-call pilots are not integrated on the pilots seniority list, they are listed together as "part-time" with the one part-time pilot who has been ruled eligible.

In the alternative, Hyannis asks that the Board consider the eligibility of ten on-call pilots on a individual basis.* Hyannis presents a brief work history for ten on-call pilots and concludes their individual circumstances demonstrate "substantial service" to Hyannis.

Hyannis says on-call pilots have a present interest in this representation dispute and share a strong community of interest with the other pilots. Therefore, Hyannis says the on-call pilots should be allowed to vote.

II.

Antoine Akoury

Hyannis argues that Antoine Akoury is a full-time pilot who is not on a leave of absence and has been seeking a visa to return to the United States from Lebanon since mid-May 2002. Hyannis says,

[w]hile Akoury formally has not been placed on leave of absence status, the Carrier at all times has treated him as being on leave of absence. . . . [H]e has a reasonable expectation of returning to work. . . . He is based at St. Thomas, Virgin Islands, a United States possession. . . . He should be allowed to vote.

IBT'S RESPONSE

IBT argues that the Investigator's rulings should be upheld because they are fully supported by the evidence.

I.

On-call Pilots

IBT argues that on-call pilots maintain only a casual employment relationship with the Carrier. Specifically, the IBT argues that the on-call pilots' work hours fluctuate based on seasonal business demands and other factors outside the Carrier's control. Therefore, the IBT says, there cannot be sufficient expectation of continued employment to render on-call pilots eligible.

IBT asserts that on-call pilots have no guarantee that they will work at all and they are not required to work any minimum number of hours. IBT states that on-call pilots are not eligible for benefits, including: insurance; dependent care; 401(k) retirement plan; employee stock ownership plan; paid time off (vacation and personal); and holiday leave. The IBT argues, based on Board precedent, that on-call pilots' continued expectation of employment is too attenuated because "they do not know when they will be recalled, for how long, or at all." Eastern Airlines, Inc., 6 NMB 561, 566 (1978).

II.

Antoine Akoury

IBT argues that Antoine Akoury has no present employment relationship with Hyannis. Furthermore, according to the IBT, since he is in Lebanon, he is beyond the jurisdiction of the Railway Labor Act. In addition, IBT argues Akoury is "prohibited" from working in or even entering the United States without a visa, which he has not, and may never, obtain. For all these reasons, the IBT concludes, Akoury is not an eligible voter.

DISCUSSION

I.

On-call Pilots

Manual Section 5.301 states:

Part-Time Employees

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 which would indicate whether the employee has a regular part-time or a casual part-time employer- employee relationship.

The Investigator's determination of eligibility regarding part-time employees must take into consideration the varied operating practices on different carriers. If the individual's employment is casual, that is, where the employee has neither a regular employee-employer relationship nor scheduled work assignments, then the employee is ineligible.

The Employment Status section of the Hyannis Personnel Handbook defines three levels of employees: full-time; part-time; and on-call. Hyannis' on-call employees are defined as follows:

An on-call employee is scheduled to work less than 20 hours per week or on an as-needed basis.

In contrast to on-call pilots, Hyannis' part-time pilots are scheduled to work a minimum of 20 hours per week and receive the same benefits as full-time pilots. The record establishes that Hyannis employs one part-time pilot and the Investigator ruled that part-time pilot was an eligible voter.

Hyannis' submissions state that on-call pilots are scheduled based on seasonal business and "demand scheduling" requirements. In addition, the evidence establishes that on-call pilots are not eligible for significant benefits, including: insurance; dependent care; 401(k) retirement plan; employee stock ownership plan; paid time off (vacation and personal); and holiday leave. Furthermore, on-call pilots are not integrated into the pilots seniority list. While some Hyannis on-call pilots have relieved full-time pilots for a number of years, the record establishes that on-call pilots do not know when they will be recalled, for how long, or if at all.

Based on the record, Hyannis' on-call pilots have neither a regular employee-employer relationship nor a scheduled work assignment. Therefore Hyannis' on-call pilots' expectation of continued employment is too attenuated for them to be considered eligible voters. Air Transport International, Inc., 24 NMB 263, 275 (1997); American Trans Air, Inc., 18 NMB 392, 397 (1991); Eastern Air Lines, Inc., 6 NMB 561, 566 (1978). The Board finds that on-call pilots have a casual employment relationship with Hyannis and they are ineligible to vote in this representation election.

Having found that on-call pilots have a casual employment relationship with the Carrier, the Board finds no grounds to consider Hyannis' alternative, individual eligibility claims.

The Board affirms the Investigator's ruling that the Hyannis on-call pilots are ineligible.

II.

Antoine Akoury

Prior to mid-May 2002, Antoine Akoury was employed as a Hyannis full-time pilot. Hyannis states that Akoury is not on a leave of absence. Hyannis also states that it considers him to be an employee and claims that Akoury wants to be a Carrier employee. In addition, the Carrier states since mid-May 2002, Akoury has been in Lebanon and unable to enter the United States because he has not received a visa. Since that time, the record establishes that Akoury has not worked, cannot and may never work in the craft or class. Moreover, the record contains no evidence that Akoury has a present employment relationship with Hyannis.

The Board finds that Akoury is not working regularly in the craft or class. Therefore he is not an eligible voter. The Board affirms the Investigator's ruling.

CONCLUSION

The Board finds that there is no basis to overrule the Investigator's rulings. Therefore, Hyannis' appeal is denied. The count will take place as scheduled at 2 p.m ET, August 30, 2002.

By direction of the NATIONAL MEDIATION BOARD.

Benetta Mansfield

Chief of Staff