25 NMB NO. 8

NMB CASE NOS. R-6541

and R-6542

FINDINGS UPON

INVESTIGATION-

AUTHORIZATION OF

ELECTIONS

October 9, 1997

On August 18, 1997, the International Brotherhood of Teamsters (IBT) filed an application for investigation of a representation dispute among personnel described as "Flight Attendants" employed by "AirTran Airways". This application was docketed as NMB Case No. R-6541. On August 22, 1997, the AirTran Pilots Association (ATPA) filed an application covering "Pilots" of the same carrier. This application was docketed as R-6542.

The Board assigned Mediator Richard A. Hanusz to investigate. On September 2, 1997, AirTran asserted that it would merge with ValuJet Airlines and that, therefore, AirTran constituted only a portion of a single transportation system which includes ValuJet. AirTran asked the Board to dismiss the unions' applications.

The Association of Flight Attendants (AFA) is the incumbent representative of Flight Attendants employed by ValuJet. ValuJet Airlines, 22 NMB 244 (1995).

The ValuJet Pilots Association (VJPA) is the incumbent representative of Flight Deck Crew Members employed by ValuJet. ValuJet Airlines, 24 NMB 573 (1997).

In response to AirTran's allegations, the Board requested additional information which was provided by ValuJet on September 17, 1997. The IBT, ATPA, the VJPA and AFA all filed responses. The only supporting evidence supplied by the carrier was an application for registration of the trade name "AirTran Airlines" filed before the United States Department of Transportation (DOT), which included an agreement with AirTran to consent to the use of the trade name.

ISSUES

Are AirTran and ValuJet operating currently as a single transportation system? If so, what are the representation consequences of their operations? If not, should the Board proceed to investigate the IBT's and ATPA's applications?

CONTENTIONS

AirTran asserts that it and ValuJet will be combined to form a single transportation system. The carrier contends that the management of the two airlines will be under a single board of directors and that management will be combined. Therefore, AirTran argues that the applications should be dismissed.

The IBT and ATPA assert that the potential merger between AirTran and ValuJet has not yet been consummated and that the two airlines continue to operate as two separate carriers. Therefore, the organizations request that the Board conduct elections on AirTran. AFA and VJPA maintain that the two carriers will soon merge to form a single system, and that the applications therefore should be dismissed.

FINDINGS OF LAW

I.

AirTran Airways is a common carrier as defined in 45 U.S.C. § 181.

II.

The IBT, ATPA, AFA and VJPA are labor organizations and representatives as provided by 45 U.S.C. § 151, Sixth and § 152, Ninth of the Act.

III.

45 U.S.C. § 152, Fourth, gives employees subject to its provisions "the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter."

IV.

45 U.S.C. § 152, Ninth, provides that the Board has the duty to investigate representation disputes and to designate who may participate as eligible voters in the event an election is required. In determining the choice of the majority of employees, the Board is "authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives by the employees without interference, influence or coercion exercised by the carrier."

STATEMENT OF FACTS

I.

According to D. Joseph Corr, President and Chief Executive Officer of ValuJet as of September 17, who will be President of the new entity:

The parent companies of ValuJet and AirTran have entered into a definitive Merger Agreement, and an operational merger will occur following shareholder approval.

According to Corr, "the anticipated date of the operational merger will be shortly after shareholder approval", and "the new merged entity will be known as AirTran Holdings, Inc."

II.

On September 24, 1997, after receiving DOT approval of use of the trade name AirTran Airlines, ValuJet began operating as AirTran Airlines. AirTran continues to operate as AirTran Airways.

III.

The Board issued a series of questions to the carriers on September 3, 1997. Question No. 4 asked: "Please describe the steps that have been taken to achieve an operational merger."

A.	The parties have entered into a definitive Merger Agreement and are now taking steps to assess the integration of their operations.

Q.	How and when will management be integrated?

A.	The parties are currently assessing the integration of management and can not offer a definitive response to this question at this time.

Q.	How will labor relations and personnel functions be administered afer the date of the operational merger?

A.	Following the operational merger, it is anticipated that labor relations and personnel functions will be administered in a combined fashion.

IV.

Corr also states that routes and schedules will be combined, and uniforms, aircraft and other equipment will have conforming markings. There are no "labor protection agreements arising out of the merger".

V.

According to ATPA, Corr and Robert Swenson, President of AirTran Airways, informed AirTran pilots in August that in the event of a merger "the two companies (particularly the pilots and flight attendants) would not be intermixed." ATPA has submitted a letter from Swenson to AirTran employees in which Swenson states, "we will be working under separate operating certificates and will continue to maintain the two operating companies." Attached to Swenson's letter is a document titled "Employee Q&A". According to the document, "both carriers will operate under their separate maintenance certificates and will continue with their current FAA approved maintenance programs."

VI.

The IBT has submitted a position statement in which it informs the Board that the application for DOT approval of the merger was filed in late August, 1997 and that DOT has not yet approved the merger.

VII.

AFA states that "it is the union's belief that ValuJet will attempt to use the merger to circumvent AFA." Although AFA was certified as the representative of ValuJet's flight attendants in 1995, and has been in negotiations with the carrier for two years, as yet there is no collective bargaining agreement.

AFA also alleges that ValuJet terminated the Chair of AFA's negotiating committee at ValuJet for union activities. AFA further states that "ValuJet has told flight attendant trainees that upon the merger . . . flight attendants on the merged carrier will be represented by the [IBT]."

VIII.

The VJPA has submitted a position statement in which the organization asserts that the two carriers will be a single system and that, therefore, the Board should dismiss ATPA's application.

DISCUSSION

I. The Board's Authority

Section 2, Ninth of the Act, 45 U.S.C. 152, Ninth, authorizes the Board to investigate disputes which arise among a carrier's employees over representation and to certify the duly authorized representative of such employees. The Board has exclusive jurisdiction over representation questions under the Railway Labor Act. Switchmen's Union v. National Mediation Board, 320 U.S. 297 (1943); General Committee of Adjustment v. M.K.T. Railroad, 320 U.S. 323 (1943).1

II. Single Transportation System

In TWA/Ozark, 14 NMB 218 (1987), the Board enunciated factors which will be examined to determine whether carriers operate or will operate as a single transportation system. The following factors were cited by the Board as indicia of a single transportation system:

[W]hether the two systems are held out to the public as a single carrier. We recognize that there may be differences between two carriers' intent to hold themselves out to the public as a single carrier and the public's perception of whether there is a single system. That is why the Board looks into such practical considerations as whether a combined schedule is published; how the carrier advertises its services; whether reservation systems are combined; whether tickets are issued on one carrier's stock; if signs, logos and other publicly visible indicia have been changed to indicate only one carrier's existence; whether personnel with public contact were held out as employees of one carrier; and whether the process of repainting planes and other equipment, to eliminate indications of separate existence, has been progressed.

Other factors investigated by the Board seek to determine if the carriers have combined their operations from a managerial and labor relations perspective. Here the Board investigates whether labor relations and personnel functions are handled by one carrier; whether there are a common management, common corporate officers and interlocking Boards of Directors; whether there is a combined workforce; and whether separate identities are maintained for corporate and other purposes. 14 NMB at 236.

In this case, and at this time, AirTran Airways and AirTran Airlines function as separate carriers.

AirTran Airways and AirTran Airlines fly under two separate operational certificates with separate flight crews. They are legally obligated to continue to maintain separate operations until the merger is approved. At this point, although DOT has approved the use of the AirTran trade name, there is no definite target date for an operational merger.

To date, ValuJet has begun to change its corporate insignia and is painting its aircraft to reflect the AirTran trade name. However, many issues, including integration of management are not yet resolved.

Based upon the facts and circumstances of this case, there is an insufficient basis for finding AirTran Airways and AirTran Airlines to constitute a single system. There is insufficient evidence that Flight Attendants and Flight Deck Crew Members will be integrated even afer the merger. Despite the fact that ValuJet has changed its name, the two airlines continue to operate separately and the merger remains prospective. Many elements of the merger remain speculative, as well. Therefore, the Board finds that AirTran Airways remains a separate system for Railway Labor Act purposes.

III. Representation Consequences

"When the Board conducts an election, it conducts an election on the present system, not a former or future system." SAPADO I, 19 NMB 279, 281 (1992)(Emphasis in original). A prospective merger is not sufficient reason for the Board to delay or dismiss applications for investigation of representation disputes. To the contrary, Section 2, Ninth of the Act directs the Board to investigate representation disputes promptly. 45 U.S.C. § 152, Ninth. Frontier Airlines, 24 NMB 635 (1997).

AirTran Airways, AFA and VJPA urge the Board to dismiss the applications. However, the Board's policy is to conduct representation elections in light of the carrier's present system composition. Frontier, supra. This policy is based on long-standing Board case law, on the provisions of Section 2, Ninth of the Act calling for a prompt determination of representation issues, and on the basis that possible future events may not occur. At present, AirTran Airways is a separate system for representation purposes under the Railway Labor Act, and the Board will continue its investigation of the applications to represent employees on that system.2

CONCLUSION

Based upon the facts and circumstances of this case, the Board finds that AirTran Airways constitutes a separate system for representation purposes under the Act. The Board further determines that the IBT's and ATPA's applications should not be dismissed and that elections should proceed promptly. Accordingly, the Board finds disputes to exist in NMB Case Nos. R- 6541 and R-6542 among Flight Attendants and Pilots, respectively, employees of AirTran Airways. All mail ballot elections are hereby authorized using a cut-off date of August, 1997 with the applicants, IBT and ATPA on the respective ballots.

Pursuant to Section 11.2 of the Board's Representation Manual, the Carrier is hereby required to furnish within five calendar days alphabetized peel-off labels bearing the names and current addresses of those employees on the lists of potential eligible voters currently employed by AirTran Airways. The ballot counts will take place in Washington, D.C.

Ballots will be mailed on Thursday, October 16, 1997, and the ballot counts will take place on Friday, November 14, 1997.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copies to:	D. Joseph Corr

Paula Caira, Esq.

Ray Benning, Jr.

Marvin Menaker, Esq.

Jeffery D. Wall, Esq.

Rick Dunn

Ed Gilmartin,Esq.

Lawrence H. Brinker, Esq.

John Commander

Richard Hanusz