25 NMB No. 82

May 11, 1998

Robert A. Siegel, Esq.

Chris A. Hollinger, Esq.

Counsel for Polar Air Cargo

O'Melveny & Myers LLP

400 South Hope Street

Los Angeles, CA 90071

Paula J. Caira, Esq.

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

Re:	NMB Case No. R-6589

Polar Air Cargo, Inc.

Gentlemen:

This determination addresses Polar Air Cargo's appeal of Senior Mediator Lawrence Gibbons' April 10, 1998, eligibility ruling and the applicant International Brotherhood of Teamsters (IBT's) appeal of Senior Mediator Gibbons' May 7, 1998, eligibility ruling. In his initial ruling, the Mediator determined that approximately 49 part-time Mechanics and Mechanics Helpers based at John F. Kennedy Airport in New York (JFK) have an employee-employer relationship with the Carrier and, therefore, are eligible. After providing the Carrier an opportunity to document its claim that many part-time Mechanics worked for another carrier, the Mediator determined that 29 of the 49 part-time Mechanics at issue are ineligible because they work full time for other carriers. The Carrier's appeal of the Mediator's ruling that its part-time Mechanics and Mechanics Helpers are not casual employees is denied. Regarding the Mediator's determination that part-time mechanics employed full-time with other carriers are not eligible, the IBT's appeal is granted.

I.

The IBT filed an application covering the craft or class of Mechanics and Related Employees on February 27, 1998. The Carrier submitted a list of potential eligible voters on March 12, 1998, which excluded part-time employees at JFK. On March 16, 1998, the Board found a dispute to exist and authorized an all-mail ballot election, using a cut- off date of February 20, 1998.

On March 26, 1998, the IBT challenged the exclusion of part-time Mechanics from the list of potential eligible voters. The Carrier responded on April 8, 1998, taking the position that the individuals in question were ineligible. On April 10, 1998, the Mediator ruled these individuals eligible. Ballots were mailed on that same date.

On April 17, 1998, the Carrier appealed the Mediator's ruling that its part-time Mechanics were not casual employees. On April 27, 1998, the IBT filed a response, and on April 30, 1998, the Carrier filed a rebuttal statement. In his April 10, 1998, ruling, the Mediator invited Polar to submit additional evidence supporting its contention that many of its part-time Mechanics work for other carriers. On May 4, 1998, the Carrier supplied that documentation for 29 individuals. On May 6, 1998, the IBT filed a position statement indicating that all of Polar's part-time employees have a continuing employer-employee relationship and a present interest in the election, regardless of their employment at other carriers. All individuals whose eligibility is at issue were sent "challenged ballots."

On May 7, 1998, relying on Emery Air Charter, 18 NMB 387 (1991), Mediator Gibbons ruled that the part- time Mechanics who also worked full-time for other carriers were not eligible. On May 8, 1998, the IBT appealed that ruling, distinguishing Emery Air Charter from the facts in this case. Also on May 8, Polar responded to the IBT's appeal.

II.

Polar Air is a cargo airline whose charter and scheduled operations "fluctuate depending on the needs of its customers."

The Mediator ruled that Polar's JFK-based part- time Mechanics are eligible despite the Carrier's contention that these individuals have a "casual" employment relationship. In making this ruling, the Mediator applied the guidelines set forth in Section 5.301 of the Board's Representation Manual and Board case law to the facts submitted by the participants.

A carrier memorandum, dated June 18, 1997, addresses "Part-time Policy & Procedures." This document provides, in part, as follows:

Polar Air has implemented a policy that will be strictly enforced. This policy has been established due to the continued lack of Part Time Mechanics not meeting their twenty (20) hour a week obligation to Polar Air. The following rules will not be compromised . . . .

Rule #2: All Part Time personnel must call Polar Air maintenance two (2) hours prior to their shift start time on scheduled days to be made aware of work availability. If work is available you must report to work. . . .

Rule #3: If a Part Time employee does not call on days he is scheduled to work, he will receive twelve (12) points against his attendance. Please note any employee receiving thirteen (13) points or more will be terminated. NO EXCEPTIONS.

Rule #4: Any Part Time employee that calls in sick on his regular scheduled days to work will receive two (2) points against his attendance. Any combination of points exceeding twelve (12) will require the employee to be terminated.

III.

A.

The Carrier argues that part-time Mechanics at JFK work sporadic and irregular schedules, do not receive benefits, and work for other carriers. According to Polar, the fact that these individuals make themselves available to work twenty (20) hours per week is not determinative, "instead, actual work assignments are made . . . on an ad hoc, week-by-week basis depending on the fluctuations" of business. The Carrier asserts that its JFK-based part-time Mechanics are distinguishable from those based in Los Angeles, Miami, and Anchorage because the employees at the three latter stations work regular schedules. In support of its position, Polar has provided an affidavit from Richard Scholl, Vice President of Maintenance and Engineering, as well as charts reflecting the weekly hours worked by the JFK-based Mechanics for the eight week period preceding the February 20, 1998, cut-off date. For each of these individuals, the Carrier also has identified the name, if any, of the individual's other employer.

A review of the charts submitted by the Carrier indicates that, of the employees in question, the average weekly number of hours worked ranged from ten for one employee to 38.6 for another employee. In addition, the number of hours worked per employee per week varied from week to week. The record also indicates that several part-time employees have been discharged for "failure to meet P/T [part-time] hours." A review of other evidence submitted by the Carrier reveals that over fifty percent (50%) have hire dates of 1994, 1995, or 1996.

B.

On April 17, 1998, the Carrier conducted a voluntary survey by sending a memo to all of its part- time employees seeking to update personnel records. The Memo provided:

We are currently in the process of up- dating the personnel files of our part-time employees. If you currently hold a full- time or part-time position with another company in addition to your part-time job with Polar, please complete and sign the following information. This effort is merely to update our records and will in no way affect your employment with Polar. Thank you for your assistance.

Thirty individuals returned the survey indicating that they held full-time employment at other air carriers.1

IV.

A.

In its appeal, the Carrier argues that Mediator Gibbons "did not give proper credit to the specifically enumerated factors in Section 5.301" of the Manual.

Section 5.301 of the Board's Representation Manual provides:

When investigating the eligibility of a part-time employee, the Mediator 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 Mediator'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.

B.

In Bemidji Aviation Services, Inc., 21 NMB 377 (1994) the Board cited Section 5.301 (Section 4.301 in 1994) in finding certain part-time employees eligible despite their lack of identifiable work schedules. In American Trans Air, 18 NMB 392 (1991) the mediator, upheld by the Board, looked to the Manual and considered the particular operating practices of the carrier, rejecting the argument that employees needed to work an identifiable schedule to be considered regular part-time.2 See also American International Airways, Inc., 20 NMB 94 (1992).

C.

Mediator Gibbons applied Board policy relating to part-time employees to the record in this case in ruling Polar Air's part-time Mechanics and Mechanic Helpers based at JFK eligible. The Mediator stated in his ruling:

I find that while the employees in question do not have a pre-set schedule of actual work hours in a given week, they are required to identify twenty (20) hours each week that they will obligate themselves to the carrier. Further, they are required to call in prior to each period they have obligated to the carrier and must, if work is available, report to work. Failure to call in on more than one occasion will result in termination . . . . I find this establishes a regular part-time employer- employee relationship.

The Board's review of the record in this case in light of applicable Board policy leads it to conclude that the Mediator correctly ruled that part-time employees who work at JFK have regular employee- employer relationships and, therefore, are eligible.

V.

The IBT challenges Mediator Gibbons' ruling that Polar's part-time Mechanics who were employed full time by other carriers are not eligible to vote. The IBT asserts that since Section 5.301 of the Representation Manual, covering part-time employees, is not specifically included in Section 5.308, covering individuals working for another carrier, employees may have a present employment interest in more than one carrier.

Section 5.308 of the Representation Manual provides, "[a]n employee who would otherwise be eligible to vote under Section 5.304, 5.305, 5.306, or 5.311 who is working for a carrier other than the carrier involved in the dispute is ineligible." These sections of the Representation Manual cover employees who have been discharged, furloughed, are on authorized leave of absence, or on disability leave.

Section 5.308 of the Representation Manual was designed to limit employees who retained an attenuated employment interest in a carrier, but who are not actively working for that carrier, from voting when they have a present employment interest with another carrier. That is not the case here. At Polar, the 29 part-time Mechanics have a present interest in their employment with Polar as well as with their full-time employers.

In Emery Air Charter, 18 NMB 387, 390 (1991), the Board found a part-time employee eligible where the employee held full-time employment with a non-carrier and maintained a present interest in his regular part- time employment with Emery Air Charter. The Board left open whether it would reach the same conclusion if the employee's full-time employer had also been a carrier.3 Here, 29 of Polar's part-time Mechanics hold full-time jobs at other air carriers. However, they also maintain a present interest in regular part- time employment with Polar. In view of the Board's established practice not to disenfranchise employees, the Board finds eligible the 29 part-time employees who also hold full-time employment with other carriers. See, e.g., Continental Airlines, 24 NMB 433, 449 (1997).

VI.

Based upon the record in this case, the Board finds that Polar's part-time Mechanics and Mechanics Helpers are regular part-time employees and are eligible to vote. The Board finds further that the Carrier's part-time Mechanics and Mechanics Helpers holding full-time employment with other carriers maintain a present interest in employment with Polar and are eligible. The ballot count will take place as scheduled.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Mr. Ray Benning

Mr. Lawrence Gibbons