Sis-Q Flying Service, Inc.

SIS-Q FLYING SERVICE, INC. 195 Sis-Q Flying Service, Inc.; Hemet Valley Flying Service Company; TBM, Inc. and Union of Professional Airmen, an affiliate of the Air Line Pilots Association, International AFL-CIO, Peti- tioner. Case 20-RC-10258 May 30, 1972 DECISION AND DIRECTION OF ELECTIONS BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer John C. Montoya. Following the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedures, Series 8, as amended, by direction of the Regional Director for Region 20, the case was transferred to the Board for decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, the Board finds: 1. Sis-Q Flying Service, Inc., Hemet Valley Flying Service Company, and TBM, Inc., hereinafter referred to as the Employers, are in the business of providing aircraft, aircraft pilots and copilots, and certain support personnel for forest fire fighting under contract with the Forestry Service (FS), a subdivision of the United States Department of Agriculture, and the California Division of Forestry (CDF), a branch of the government of the State of California. The Employers assert that the Board does not have jurisdiction in this case because it involves labor relations of FS and CDF. Thus, the Employers contend that their own operations are so intimately connected with those of the two agencies, which are excluded from the coverage of the Act, that the Board should decline jurisdiction herein and further that the control exercised by the FS and CDF over the terms and conditions of employment of the disputed personnel is such as to render them employees of those governmental agencies and not of the three named Employers. A primary responsibility of the FS is to fight forest fires throughout the United States; administratively the FS divides the country into several regions, one of which comprises the State of California. CDF is likewise responsible for the fighting of fires within and throughout California. Both FS and CDF fight forest fires by land and by air, but we are here concerned only with their activities involving the use of aircraft for this purpose. Until about 1964 or 1965 both FS and CDF utilized their own personnel and equipment in this function. Since that time this work has been contracted out on a bid basis by both agencies. Each of the three Employers involved here has bid for and received contracts from both FS and CDF for several years. Pursuant to those contracts each of the Employers sends pilots, copilots, and aircraft to various bases or airfields operated by FS, CDF, or in some cases by both, where they wait in readiness to be dispatched to a fire. The airmen start each day by checking and starting their aircraft and reporting their readiness to fly. Most of their time is then spent on the ground awaiting dispatch. Throughout the season' they are on 7-day-a-week duty and may not leave the base unless relieved and given permission to do so by the agencies. When the Employers bid for contracts with FS or CDF, they submit detailed descriptions of aircraft to be supplied and the names and qualifications of pilots and copilots. Both of the agencies reserve the right to reject a proposed pilot or copilot on grounds ranging from safety to attitude and personal appear- ance. Due to the importance and nature of the mission involved, FS and CDF retain a substantial degree of control over the pilots and copilots involved. Thus, they are required to be licensed by the Federal Aviation Administration and to be approved and carry cards evidencing that approval from FS and CDF. As noted, their hiring must be approved by the agencies, which also approve work assignments, transfers, and occasional promotions, and can effect their termination by requiring the return of the certification card issued by the particular agency. The agencies also provide annual training and evaluation for the airmen. . When they are dispatched to a fire, their orders come from either FS or CDF personnel depending on the nature of the base and the location of the fire. Their function is to fly to the fire and drop loads of deterrent on the fire. In the air they are supervised, monitored, and evaluated by FS or CDF and the number of times they return to a fire is determined by personnel of those agencies. Such control over i The fire season lasts about 4-1/2 months , but by contract between the agencies and the Employers it may be extended at either its beginning or end, depending on natural conditions The Employers apparently spend the remainder of the year preparing for the next season. 197 NLRB No. 26 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their in-flight operations is exercised by agency personnel on the ground or in the air. Further, the working conditions of the pilots and copilots are controlled by the contracts between the agencies and the Employers. Hours of duty, maxi- mum flight time allowed, rest periods, and certain safety precautions are established by contract. On the other hand, the FS and CDF contracts with the Employers clearly state that the airmen are employees of the companies and not of the agencies. They enjoy none of the benefits of Federal or state employment. Further, it is the Employers who actually hire the pilots and copilots. The agencies merely approve or disapprove the individuals desig- nated by the Employers. In this regard, the Employ- ers hire men who have previously qualified for the work involved or who 'have the necessary training and skills to qualify. Once hired, the pilots and copilots are assigned to a specific base by the Employers and thus their working conditions and amount of flight time are substantially affected. Although the agencies may disapprove a particular assignment, this appears to be the exception rather than the rule, involving possible personality clashes or lack of familiarity with the terrain. The pilots and copilots are paid by the Employers and all standard payroll deductions are made by the Employers, who provide unemployment workmen's compensation and health insurance. Neither FS nor CDF exercises any direct control over the airmen's basic wages, which are agreed upon between the airmen and the Employers. Finally, with regard to both hiring and termination, there is no evidence that the agencies have any authority to require the Employers to place a man on their payroll or to take him off. In view of the above, it is clear that, although conditions of employment are subject to review and approval by FS and CDF, a considerable area of effective control remains vested in the Employers. Accordingly, we find that the Employers are employ- ers of their employees within the meaning of Section 2(2) of the Act and that despite the close connection of the activities of the Employers with the purposes and operations of the Forestry Service and California Division of Forestry, there is insufficient reason to warrant withholding the exercise of jurisdiction over the businesses of the Employers.2 All of the Employers concede that during the last calendar year they have received payments in excess of $50,000 from both the FS and CDF for the 2 Herbert Harvey, Inc., 171 NLRB 238, 239, enfd. 424 F.2d 770 (C.A.D C, 1969). 3 Siemons Mailing Service, 122 NLRB 81, 85, In 12. 4 The Petitioner originally sought a single , multiemployer unit or, services performed as described above. Accordingly, we find that each of the Employers is engaged in commerce within the meaning of the Act and that it would effectuate the purposes of the Act to assert jurisdiction herein.3 2. The Petitioner is a labor organization as defined in the Act and claims to represent certain employees of the Employers. 3. A question affecting commerce exists concern- ing the representation of employees of the Employers within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 3. The Petitioner seeks separate units of employ- ees of each of the three Employers,4 and the Employers agree. Therefore, as the parties are in agreement as to the scope of the units, we find appropriate and shall direct elections in three separate units of employees of Sis-Q Flying Service, Inc., Hemet Valley Flying Service Company, and TBM, Inc. The parties disagree, however, as to the compo- sition of the three units. The Petitioner seeks units limited to pilots and copilots. The Employers would include mechanics and gas boys (who fuel the planes and perform janitorial tasks). The record reveals that pilots and copilots perform some maintenance tasks on their airplanes at the bases and that, in unusual circumstances, mechanics have flown as copilots in the larger planes. However, the dissimilarities between the qualifications and conditions of flight personnel on the one hand and the mechanics and gas boys on the other are, in our view, vastly more significant. Thus, pilots and copilots are hired by the Employers only after demonstrating flying proficiency and must also be licensed by the Federal Aviation Administration and certified by the Forestry Service and California Division of Forestry. Pilots and copilots are required to attend annual training courses concerning fire- fighting flight problems. Mechanics and gas boys have no such requirements. Pilots and copilots are assigned to the various bases throughout California; when on duty they work a 7-day week, and may leave the base only with explicit permission. In the main, mechanics and gas boys remain at their home bases and, in any event, work a basic 40-hour week with overtime, punch in and out on a timeclock, and enjoy substantial freedom to come and go as they please. Pilots and copilots are paid a guaranteed minimum monthly wage with a specified additional amount for each hour of actual flight time. Mechan- ics and gas boys are paid per hour with overtime for alternatively, separate units. In its brief, Petitioner abandoned its primary unit request and conceded its inappropriateness "under present Board standards " SIS-Q FLYING SERVICE, INC. all hours over 40 in any given week. Pilots and copilots have separate supervision from mechanics and gas boys. Mechanics and gas boys are employed year round, wear uniforms, receive paid vacations, holidays, and sick leave pay. Flight personnel, to the contrary, receive none of those benefits, do not wear uniforms, and are hired for the fire season only.5 Finally, we note that mechanics and gas boys do not normally progress to the categories of pilot or copilot. In view of all of the foregoing, we find that the mechanics and gas boys do not share a community of interest with the pilots and copilots and we shall exclude them from the units found appropriate herein.6 Accordingly, we find that the following employees 5 One individual performs as a pilot during the fire season and as a mechanic during the remainder of the year During such periods as he or others are functioning as mechanics, they shall be excluded from the units found herein 6 Air California, 170 NLRB 18 In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc, 156 NLRB 1236, N LR B v Wyman-Gordon Co, 394 U S 197 of the Employers constitute separate units appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 1. All pilots and copilots employed by Sis-Q Flying Service, Inc., excluding all mechanics, gas boys, other employees, guards, and supervisors as defined in the Act. 2. All pilots and copilots employed by Hemet Valley Flying Service Company, excluding all me- chanics, gas boys, other employees, guards, and supervisors as defined in the Act. 3. All pilots and copilots employed by TBM, Inc., excluding all mechanics, gas boys, other employees, guards, and supervisors as defined in the' Act. [Direction of Elections? omitted from publica- tion.] 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 20 within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.