E. W. Wiggins Airways, Inc.

996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. W. Wiggins Airways, Inc. and Local 254, Service Employees' International Union, AFL-CIO, Peti- tioner. Case 1-RC-13114 May 28, 1974 DECISION AND DIRECTION OF ELECTIONS BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Irwin P. Weiner. Thereafter, the Employer and Petitioner filed briefs and reply briefs. 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. The Employer, a Massachusetts corporation, has its principal place of business at Norwood Municipal Airport, Norwood, Massachusetts. The Employer is engaged in the sale, service, and maintenance of aircraft and furnishes aircraft fueling and storage services. It also operates an air taxi and charter service; in this connection it holds an air carrier operating certificate issued by the Federal Aviation Administration (FAA). The Employer also operates a FAA-approved primary and advanced flying school, and has contracts with the United States Air Force and Army to provide primary flight training for R.O.T.C. cadets enrolled at Massachu- setts Institute of Technology and Northeastern University. The Employer does in excess of $500,000 business annually and its out-of-state purchases are in excess of $50,000 annually; in addition, it ships from its Norwood facility to points outside the Common- wealth of Massachusetts goods and material, valued in excess of $50,000 annually. Approximately 88 percent of the Employer's income iF derived from the sale of aircraft, parts, and fuel, its maintenance and storage services, and the rental of facilities. The i Its fixed-wing air taxi and charter service accounts for 1 percent of its gross reNenue, however, of that 1 percent, 40 to 50 percent is derived from intrastate operations Its helicopter taxi and charter services account for 6.5 percent of its gross revenue; however, 20 percent of this 6.5 percent is derived from intrastate operations Thus, its interstate air taxi and charter service accounts for approximately 5 to 6 percent of its gross revenue. 2 The National Mediation Board has primary jurisdiction over air carriers under the Railway Labor Act (title II). The Employer contends that the National Mediation Board should therefore in the first instance remaining 12 percent of its income is derived from its helicopter and fixed-wing air taxi and charter operations, flight training, and aircraft rental. In the light most favorable to the Employer the record shows that its interstate air taxi and charter opera- tions account for 5 to 6 percent of its gross revenue.' The Employer concedes that it is engaged in interstate commerce within the meaning of the Act. Nevertheless, the Employer contends that there are at issue the questions of whether the National Mediation Board (NMB)2 or the National Labor Relations Board has jurisdiction over its operation; and whether the NLRB in accordance with its traditional procedures should transfer this case to the NMB for an initial determination with respect to jurisdiction. However, contrary to the Employer's contention, the Board has not always transferred cases where the jurisdictional issue was raised to the NMB for an initial determination of jurisdiction.3 We believe that transferring the instant case to the NMB would not serve any valid purpose here. For the NMB in two similar cases4 has declined jurisdiction over business operations almost identical to those of this Employer. In Bradley Flying Service, 5 percent of the employer's gross revenue was attributable to its interstate taxi and charter service, while in Tri-State Aero, 10 percent of the employer's gross income resulted from interstate taxi and charter service. Here 5 to 6 percent of the Employer's business is attributable to interstate taxi and charter service. In declining jurisdiction in both Bradley Flying Service and Tri- State Aero, the NMB found that the companies did not meet the "definition of a common carrier by air" as set forth in section 2C1, title II, of the Railway Labor Act. We are persuaded that the Employer herein is not and would not be found to be a "common carrier by air" by the NMB. For these reasons we find the Employer's contention without merit. Accordingly, we find the Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and will assert jurisdiction herein. 2. At the hearing the Employer refused to stipulate that the Petitioner is a labor organization within the meaning of Section 2(5) of the Act. The record shows that the Petitioner is an organization in which employees participate and which exists for the purpose of representing such employees in bargain- determine whether the Employer is a "common carrier by air engaged in interstate commerce." 3 Air California, 170 NLRB 18; see also Dobbs Houses, Inc„ A Division of Squibb-Beechnut, Inc., 183 NLRB 535, enfd. 443 F.2d 1066 (C.A. 6, 1971). In Dobbs Houses, the Sixth Circuit stated, "Concededly, there is no statutory requirement that this question of jurisdiction be submitted for answer first to the National Mediation Board." 4 Bradley Flying Service, Inc., 131 NLRB 437; Tri-State Aero, Inc., 180 NLRB 60. See also Safair Flying Service, Inc., 207 NLRB No. 27, 210 NLRB No. 165 E.W. WIGGINS AIRWAYS, INC. 997 ing with employers concerning wages, hours, and working conditions. As such the Petitioner has collective-bargaining agreements with employers, including the Massachusetts Institute of Technology, Boston University, and the Maintenance Contractors Association. In its capacity as representative, it handles employee grievances. Accordingly, we find that the Petitioner is a labor organization within the meaning of Section 2(5) of the Act. The Petitioner claims to represent certain employees of the Employ- er. 3. Questions affecting commerce exist concerning the representation of certain employees of the Employer within the meaning of Sections 9(c)(1) and 2(6) and (7) of the Act. 4. The Petitioner seeks a unit of all employees who are employed as flight instructors and flight dispatchers at Norwood Municipal Airport, exclud- ing all other employees, guards, and supervisors as defined in the Act. The Employer contends that four of the flight instructors, Hayes, Howker, Mercandet- ti, and Smith, are temporary employees with no reasonable expectancy of future employment who should therefore be excluded from the unit. These four flight instructors were hired by the Employer to instruct students enrolled in Northeastern Universi- ty's R.O.T.C. and aviation technology programs. The relationship between the Employer and Northeastern University has existed since 1968, and it is anticipat- ed that the program will continue next year. At the time the four employees were hired, they were not told that their employment would definitely be terminated in June 1974, the end of Northeastern's academic year for the aviation technology program. Rather they were told that they would be able to continue their employment with the Employer if there was enough work available.5 In addition, we note that the four employees have not instructed Northeastern students exclusively; approximately 10 percent of their instruction has been given to flight students not enrolled in the Northeastern programs. The four flight instructors receive the same rate of pay and benefits as all other part-time instructors and are under the same supervision. Moreover, the other part-time instructors also instruct Northeastern flight students. In our opinion the four flight instructors in question have a sufficient community of interest with the other flight instructors to warrant their inclusion in the unit. It is also clear that they have a reasonable expectancy of continued or future employment. If there is work available, they will continue on through 5 Thus, Fuller, Employer's vice president and operations manager, testified "We made no promises outside of the fact that if business was such at the end of the time that we had enough for them to do we would be able to keep them on a part time basis " the summer while the Northeastern students are on vacation. Otherwise, we assume that since the program with Northeastern University will be con- tinued the four flight instructors have a reasonable expectancy of future employment as seasonal em- ployees when the new academic year begins in September. Where, as here, seasonal employees, if they can be considered as such, work for a substan- tial portion of the year, have near certain expectation of reemployment, and work with regular full-time and part-time employees under the same supervision, the Board does not exclude them from an appropri- ate unit. Accordingly we shall include Hays, Howker, Mercandetti, and Smith. Finally, the issue has been raised as to whether the flight instructors should be combined in a unit with flight dispatchers.6 Both the Employer and Petitioner agree that the flight instructors are professionals within the meaning of the Act. For this reason the Employer contends the unit is inappropriate unless the flight instructors are first given an opportunity to decide whether they wish to be represented in the unit with flight dispatchers. Although the Petitioner believes that such a determination should be made by the Board, it has no objection to the utilization of such a voting procedure. In view of the sparsity of record evidence on this point, we will abide by the agreement of the parties, and find that the flight instructors are professionals for the purpose of this case. We shall, therefore, pursuant to the agreement of the parties, direct an election wherein we shall ascertain the desires of the flight instructors as to inclusion in a unit with the flight dispatchers. We find that the following employees may consti- tute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All flight instructors and flight dispatchers em- ployed at the Employer's Norwood Municipal Airport facility, Norwood, Massachusetts, exclud- ing all other employees, guards, and supervisors as defined in the Act. As indicated supra, however, in order to ascertain the desires of the flight instructors as to inclusion in a unit with flight dispatchers, we shall direct separate elections in the following voting groups: Voting Group (a): All flight instructors of the Employer, but excluding all other employees, guards, and supervisors as defined in the Act. 6 There are 17 flight instructors and only 2 flight dispatchers Since one of the flight dispatchers spends 50 percent of his time as a flight instructor, we would include him in a unit of flight instructors 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Voting Group (b): All flight dispatchers em- ployed by the Employer, but excluding all other employees, guards, and supervisors as defined in the Act. The employees in voting group (a) will be asked two questions on their ballot: "(1) Do you desire to be represented in a unit which includes flight dispatchers of the Employer for the purposes of collective bargaining?" "(2) Do you desire to be represented for the purposes of collective bargaining by Local 254, Service Employees' International Union, AFL-CI- O?" The employees in voting group (b) will be polled to determine whether or not they desire to be represent- ed by Local 254, Service Employees' International Union, AFL-CIO. If a majority of the flight instructors in voting group (a) vote "yes" to the first question they will be included in the unit with flight dispatchers. If, on the other hand, they vote against inclusion they will not be included with the flight dispatchers. Their votes on the second question will then be counted to determine whether or not they wish to be represented by the Petitioner. The Petitioner has indicated that it will represent the flight instructors in a separate unit but that if the flight instructors do not desire representation with the flight dispatchers it would 7 If, in fact, the Employer employs only one flight dispatcher and the flight instructors vote against inclusion , we would in any event dismiss the withdraw its petition with respect to the flight dispatchers.? Our unit determination is based, in part, on the results of the election among the flight instructors. However, we now make the following findings in regard to the appropriate unit: 1. If a majority of the flight instructors vote for inclusion in a unit with flight dispatchers, we find the following will constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All flight instructors and flight dispatchers em- ployed at the Employer's Norwood Municipal Airport facility, Norwood, Massachusetts, exclud- ing all other employees, guards, and supervisors as defined in the Act. 2. If a majority of the flight instructors do not vote for inclusion in a unit with flight dispatchers, we find the following will constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All flight instructors employed at the Employer's Norwood Municipal Airport facility, Norwood, Massachusetts, excluding all other employees, guards, and supervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] petition with respect to flight dispatchers , as a separate unit of one flight dispatcher would be inappropriate.