25 NMB No. 43

January 27, 1998

Ronald B. Natalie, Esq.

Verner, Liipfert, Bernhard,

McPherson and Hand, Chtd.

901 15th Street, N.W., Suite 700

Washington, DC 20005

Marcus C. Migliore, Esq.

Air Line Pilots Association

1625 Massachusetts Avenue, N.W.

Washington, DC 20036

Re: NMB Case No. R-6562

Atlas Air, Inc.

Gentlemen:

This determination addresses the carrier's January 8, 1998, appeal of Mediator Patricia Sims' eligibility rulings in this case. The applicant in this matter, the Air Line Pilots Association (ALPA) filed a response on January 9, 1998. For the reasons set forth below, the carrier's appeal is denied.

I.

On November 14, 1997, ALPA filed an application seeking to represent Flight Deck Crewmembers, employees of Atlas Air, Inc. On December 5, 1997, the carrier submitted a letter stating that 32 potential eligible voters were foreign-based and therefore not subject to the Railway Labor Act. On that same date, the Board found a dispute to exist and authorized an election. Ballots were mailed December 16, 1997, and the count is scheduled for 2:00 p.m., January 27, 1998.

Atlas submitted additional evidence on December 15, 1997. ALPA submitted a response to the carrier's December 5, 1997, submission on December 15 as well as challenges and objections to the list of eligible voters. Final responses were submitted on January 2, 1998.

On January 2, 1998, Mediator Sims issued her rulings. These rulings were based upon her review of all the position statements submitted by the participants, as well as a review of the court cases cited by the carrier. Based upon her review and analysis, and in light of Section 5.310 of the Board's Representation Manual, the Mediator found that "these 32 pilots are domiciled within the United States and are therefore subject to Railway Labor Act jurisdiction...." The Mediator's determination letter cited such facts as: the "assignments outside of the U.S. are temporary duty assignments on bid cycles that can change and rotate month to month. The carrier provides hotel accommodations in foreign countries as necessary throughout the bid month."

II.

In its appeal, Atlas alleges that the Mediator "ignored" its December 5, 1997, "legal analysis." According to the carrier, the controlling authorities "focused on where the transportation was". The carrier cites specifically: Local 553 TWU v. Eastern Air Lines, 544 F. Supp. 1315, 1322-23 (E.D.N.Y.), aff'd with modified relief, 695 F. 2d 660 (2d Cir. 1982); Air Line Stewards and Stewardesses Association ('ALSSA' V. Northwest Airlines, 267 F. 2d 170 (8th Cir.), cert denied 361 U.S. 901 (1959); ALSSA v. Trans World Airlines, 273 F. 2d 69 (2d Cir. 1959), cert denied, 362 U.S. 988 (1960), and Independent Union of Flight Attendants v. Pan American World Airways, Inc., 132 LRMM 2520 (N.D. Cal, 1989)

ALPA argues that the "uncontested facts demonstrate" that the carrier has no foreign flight deck crewmember bases, and that the individuals at issue are hired, based, and paid in the United States. These employees are dispatched from the carrier's base at JFK Airport in New York, and their names appear on the same seniority list as all other individuals in the craft or class. The organization contends in addition, that the cases cited by the carrier involved employees "who were exclusively and permanently based overseas and who permanently and exclusively worked outside" the United States.

III.

A.

Section 5.310 of the Board's Representation Manual provides that "[o]nly employees based within the United States and/or its possessions are subject to Railway Labor Act jurisdiction." There have been relatively few cases where the issue of eligibility of individuals who allegedly are foreign-based has been before the Board. In Swissair, 16 NMB 146 (1989), the Board found Swiss nationals eligible because they were residents of the United States working under United States visas. In Japan Air Lines, Ltd., 4 NMB 112 (1967), the Board found Japanese nationals eligible where they were assigned to the United States for a minimum of three years and a maximum of seven, eight, or more years.

In Offshore Logistics, 11 NMB 144 (1984), the Board ruled foreign-based employees ineligible, based upon the fact that the individuals were stationed abroad for a minimum of six months to five or more years, and were parties to a special contract governing wages and work rules.

B.

A review of the case cited by the carrier reveals that the employees at issue were hired and domiciled and performed services outside the United States and were not on temporary assignment outside of this country. The facts in the case at hand are quite different. Atlas' Flight Deck Crewmembers bid temporary assignments on a monthly basis, are hired and are permanently domiciled in the United States, do not work under foreign visas or permits, and are provided temporary hotel accommodations. Further, for purposes of determining eligibility in an election conducted by the Board, the controlling factor is whether or not these individuals are based within the United States, not "where the transportation [is]".

CONCLUSION

Based upon the facts of this case in light of applicable precedent, the Board upholds Mediator Sims' ruling and finds the individuals challenged by the carrier eligible to vote. Their ballots, if cast, will be counted and the count will take place as scheduled at 2:00 p.m., Tuesday, January 27, 1998.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Mr. William S. Allen

Ms. Patricia Sims