25 NMB No. 37

CASE NO. R-6576
(File No. M-33)

DISMISSAL

January 6, 1998

On December 7, 1992, Simmons Airlines, Inc.(Simmons), filed a "Notification of Asset Acquisition" pursuant to the Board's Procedures for Handling Representation Issues Resulting from Mergers, Acquisitions or Consolidations in the Airline Industry, 14 NMB 388 (1987). Simmons informed the Board that Simmons had acquired substantially all the assets and hired most of the employees of Metroflight, Inc. (Metro).

With the notification, Simmons submitted copies of transition agreements with several labor organizations, which provided for the resolution of representation issues. In its submission, Simmons neither raised any representation questions nor requested that the Board resolve any representation issues. No representation issues were raised by any labor organizations.

In cases commenced under the airline merger procedures, the Board typically determined whether the two corporate entities had sufficiently integrated their operations such as to constitute a single transportation system. Once that issue was resolved, the Board would then turn to the representation consequences of the establishment of the single transportation system.

Final resolution of this matter was held in abeyance pending the litigation in Railway Labor Executives Ass'n v. NMB, 29 F.3d 655 (D.C. Cir.), amended, 38 F.3d 1224 (1994), cert. denied, 514 U.S. 1392 (1995), which involved the Board's Procedures for Handling Representation Issues, Resulting from Mergers, Acquisitions or Consolidations in the Railroad Industry, 17 NMB 44 (1990).

In RLEA v. NMB, supra, the Court of Appeals held that neither carriers, nor the Board sua sponte, could initiate representation investigations under Section 2, Ninth of the Act. 29 F.3d at 666. The Court specifically recognized that the Board's jurisdiction could be invoked by unions acting on behalf of employees. RLEA, 29 F.3d at 669 n.8. On remand, the District Court declared only that the railroad merger procedures were "invalid insofar as they permit the National Mediation Board, either sua sponte or at the request of a carrier, to investigate employee representational disputes." RLEA v. NMB, No. 89-3306, slip op. at 2 (D.D.C. June 30, 1995).

The railroad merger procedures and the airline merger procedures previously permitted carriers to invoke the Board's services. The procedures are identical in that regard. For this reason, the RLEA decision is applicable to the airline merger procedures. The jurisdictional principles of RLEA are pertinent to the Board's threshold power to commence an investigation pursuant to Section 2, Ninth of the Act. Accordingly, carriers may not invoke the Board's services under the airline merger procedures for the same jurisdictional reasons enunciated in RLEA with respect to the Board's railroad merger procedures. The airline merger procedures are still valid when they are invoked by a labor organization.

Because Simmons filed the "notification" under the airline merger procedures which led to the commencement of this investigation, this matter must be dismissed. File number M-33 is converted to R-6576 and is hereby dismissed.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff