25 NMB No. 115

September 2, 1998

John J. Gallagher, Esq.

Counsel for Aloha IslandAir, Inc.

Paul, Hastings, Janofsky & Walker, LLP

1299 Pennsylvania Avenue, N.W., Tenth Floor

Washington, DC 20004-2400

Paula J. Caira, Esq.

Associate General Counsel

International Brotherhood of Teamsters

25 Louisiana Avenue, N.W.

Washington, DC 20001

Re:	NMB Case No. R-6570

Aloha IslandAir, Inc.

Dear Mr. Gallagher and Ms. Caira:

This determination addresses Aloha IslandAir, Inc.'s August 3, 1998, appeal of Mediator Richard A. Hanusz's eligibility determination. The applicant in this matter, the International Brotherhood of Teamsters (IBT), filed a response on August 18, 1998. For reasons set forth below, the Mediator's determination is upheld and the Carrier's appeal is denied.

I.

On December 5, 1997, the IBT filed an application alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, 45 U.S.C. § 152, Ninth, among Fleet and Passenger Service Employees, employees of Aloha IslandAir, Inc. The application was docketed as NMB Case No. R-6570.1 These employees are currently unrepresented.

Ballots in R-6570 were mailed on July 28, 1998, with a count scheduled for August 26, 1998. Pending consideration of this appeal, the ballots were impounded and the count re-scheduled for September 2, 1998.

II.

On January 23, 1998, the Mediator furnished to the Carrier and the IBT a list of potential eligible voters in this case. The list was compiled by the Mediator and included four individuals classified as "Fuelers."2 The IBT had contended in an earlier letter furnished to the NMB and the Carrier that the individuals should be added to the list.

In the letter transmitting the list, the Mediator set a deadline of January 29, 1998, for the submission of any challenges or objections regarding the list to the Mediator. No challenges or objections were filed with the Mediator by the deadline and no extensions were requested to the filing deadline.

On July 30, 1998, the Mediator ruled that the Fuelers were eligible to vote in the R-6570 election. The Carrier, on August 3, 1998, appealed the Mediator's determination. The IBT responded on August 18, 1998.

III.

The Carrier contends that the Mediator's decision letter (July 30) departed from the Representation Manual. Furthermore, the Carrier argues that the Mediator did not place the burden upon the IBT to prove that these individuals should be added to the list before their inclusion. The Carrier asserts that these Fuelers are properly part of the craft or class of Mechanics and Related Employees.

The IBT asserts that the Mediator's determination should be reaffirmed. The IBT argues that based on the size of this Carrier the individuals are properly part of the craft or class of Fleet and Passenger Service Employees.

IV.

The Mediator stated in his challenges and objections letter (January 23) that any challenges to the list compiled by him must be submitted to the Mediator by the established deadline. He specifically cited Sections 4.1 and 4.3 of the Representation Manual in his decision.

Section 4.1 of the Manual states:

All challenges or objections must be filed in writing, initially with the Mediator at the NMB's office (original and two copies). The Mediator should require that all challenges or objections be supported by substantive evidence and argument. The Mediator should advise participants that unsupported allegations will be insufficient to overcome presumptions of eligibility or ineligibility as reflected by the list of

eligible voters. In addition, when craft or class issues are involved, the Mediator should require that the objection be supported by NMB case citation.

(Emphasis added).

Section 4.2 of the Manual states:

It is within the discretion of the Mediator as to when the participants will be allowed to file challenges or objections. Due to variables such as the size of the electorate and/or the availability of information, no specific time limit will be prescribed herein. The Mediator will set a reasonable deadline in writing for challenges or objections which will allow sufficient time for the filing of appeals of Mediator's decisions to the Board and for Board decisions before the date of the count. Except for changes in eligibility status occurring after the deadline, challenges or objections not presented by the deadline will be untimely. Changes in eligibility status occurring after the deadline will be handled as status changes subject to Section 11.3

The Mediator may establish a deadline within which the participants can provide a response to challenges or objections filed by another participant.

(Emphasis added).

Section 4.3 of the Manual states:

Challenges or objections not supported by substantive evidence and argument will be rejected by the Mediator. Challenges or objections not provided to the Mediator by the deadline set by the Mediator will be rejected. Challenges or objections which do not meet the simultaneous service requirements of Section 1.204 will be rejected.

(Emphasis added).

In the instant case, the Mediator's ruling was in accordance with the foregoing provisions of the Representation Manual. The Carrier did not comply with the timeliness requirements of the Representation Manual as reasonably implemented by the Mediator's January 28, 1998, challenges and objections letter. No extension was requested to the submission deadline established by the Mediator.

The Carrier now argues that the Mediator should have placed the burden upon the IBT to prove that the Fuelers should have been added to the list. The Carrier should have presented this argument before Mediator Hanusz either in response to the IBT's initial letter requesting their inclusion or in response to the Mediator's challenges and objections letter. Pursuant to Section 4.3 of the Representation Manual, the Carrier can not now present this.

Accordingly, the Mediator's ruling was in accordance with Sections 4.1, 4.2, and 4.3 of the Representation Manual.

V.

Although the factors discussed above are dispositive, fueling functions have long been recognized by the NMB as among the duties performed by fleet service employees at smaller carrier stations. For example, in the Memorandum Re Airline Industry Hearings,5 NMB 1, 4-5 (1970), the Board stated that:

At smaller stations, fleet service personnel may sometimes:

1. Refuel, spot, block, stand fire guard and wave off aircraft;

2. Maintain the ramp area (including freight area) and equipment, which at times includes preventative maintenance on such equipment (oil change, water, battery, etc.) but does not include repair work; and

3. Refuel aircraft and/or motorized ground equipment.

Based on the relatively small size and unique operations of the Carrier in this case, the Mediator's ruling that the Fuelers are eligible is fully within his discretion and is upheld.

CONCLUSION

For the above reasons, the Carrier's appeal is denied. The Fuelers are eligible to vote in the election among the Fleet and Passenger Service Employees of Aloha IslandAir in R–6570.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff