Lane Aviation Corp.

824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lane Aviation Corporation and Teamsters Union, Local No. 413, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Petitioner. Case 9-RC-10185 June 21, 1974 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer James E. Murphy. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, this case was transferred to the National Labor Relations Board for decision. The Employer and the Petitioner filed briefs . The Hearing Officer's rulings t made at the hearing are free from prejudicial error and are hereby affirmed. 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. 1. The Employer, Lane Aviation Corporation, an Ohio corporation with 100 employees, is engaged in the sales and service of aircraft, in pilot training operations, and in the maintenance, refueling, and storage of aircraft at its facility on the Columbus International Airport in Columbus, Ohio, where it owns 12 to 15 aircraft, maintains three large hangars, several small hangars, and an office building and salesroom. The Employer also operates a nonsched- uled flight charter business, using five aircraft, of which it owns three and leases two. Three of these aircraft are two-engine, eight-passenger planes, while the other two are four-place, single-engine aircraft. These charter flights, licensed under Part 135 of FAA regulations, are intrastate, interstate, and internation- al flights for both passengers and general cargo. Approximately 85 percent of the gross charter flight revenues are derived from passenger carriage, and the remainder from cargo carriage. The Employer expects annual gross sales for 1973 of between $2-1/4 million to $3 million, of which between $175,000 and $245,000 will be derived from the above-described charter operations. Of the total gross income from charter operations, approximately 75 percent is derived from out-of-State flights, and approximately 10 percent of that amount is derived from flights to and from Canada. The Employer urges dismissal of the petition on the ground that it is a common carrier by air engaged in interstate commerce within the meaning of the Railway Labor Act, that its operations and employ- ees are covered by the provisions of that Act, and that this Board is therefore without jurisdiction. Specifically, the Employer points to the substantial revenue engendered by the interstate transportation of passengers and cargo, in addition to the sizeable percentage of its interstate flights, which constitute 75 percent of its total flights. Because of the nature of the question presented here, we have in this case, as in other cases in the past, requested the National Mediation Board, as the agency primarily vested with jurisdiction under the Railway Labor Act over air carriers and having primary authority to determine its own jurisdiction, to study the record in this case and to determine the applicability of the Railway Labor Act to the Employer. We are administratively advised by the National Mediation Board under date of September 27, 1973, that "in view of the de minimis nature of the employer's involvement as a common carrier by air engaged in interstate or foreign commerce that jurisdiction under Section 201 of Title II of the Railway Labor Act would be inappropriate." Accordingly, we find that the Employer is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. We, therefore, assert jurisdiction herein. 2. The parties stipulated, and we find, that the Petitioner, Teamsters Union, Local No. 413, affiliat- ed with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. The Petitioner, however, declined to so stipulate with respect to the Intervenor, Idea and Development Council, herein called IDC. IDC has no constitution, bylaws, membership elections, membership meetings, or dues. Its only members include four employee representatives, one from each of the Employer's four departments. On the other hand, IDC and the Employer have for the past 7 years executed labor agreements covering the employees in these departments, and they regularly hold meetings at which wages, hours, and other conditions of employment are considered. Further- more, IDC entered an appearance in this proceeding. In these circumstances, we find, contrary to the Idea and Development Council was permitted to intervene on the basis of its contract interest. 211 NLRB No. 121 LANE AVIATION CORP. 825 Petitioner, that IDC is a labor organization as defined in Section 2(5) of the Act.2 3. The Employer contends that its latest contract with IDC operates as a bar to the instant petition which, it alleges, was filed during the insulated period of the contract. The Petitioner contends that the contract is one of indefinite duration and therefore inoperative as a bar. The latest Ramp Service Department agreement between the Employer and IDC was executed as of July 20, 1972. Article XXIII, entitled "Duration," of that contract provides for the following effective and termination dates: This Agreement, except Section XIII, XIV, and XXII, shall become effective on the annual departmental contract date as listed below: 3/31 6/30 9/30 12/31 Office & Store Agreement Ramp Service Agreement Sales, Flight & Charter Agreement Service Department Agreement The sections on holidays, vacations, and sick pay (XIII, XIV, and XXII) are effective January 1st following the date of this agreement and are renewed on a calendar year basis. 2 N.L.R.B. v. Cabot Carbon Company, and Cabot Shops, Inc., 360 U.S. 203; Moore Drop Forging Company, 168 NLRB 984; Hershey Chocolate Corporation, 121 NLRB 901 at 911. 3 Pacific Coast Association of Pulp and Paper Manufacturers, 121 NLRB 990 at 993-994. 4 During the litigation of IDC's status as a labor organization as defined in the Act, the Hearing Officer erroneously permitted the admission of evidence concerning allegations that IDC was an employer-dominated or This Agreement shall remain in full force and effect for one (1) year, and shall automatically renew itself for yearly periods thereafter unless either party serves written notice on the other of its desire to amend, notify, or terminate the Agreement thirty (30) days prior to expiration of the initial year, or any annual renewal date thereafter. On the basis of patent ambiguities in the foregoing Duration clause respecting the commencement and termination dates of the latest contract between the Employer and IDC, we deem it impossible to determine its effective period with any reasonable degree of certainty, and we accordingly find that it is a contract of indefinite duration and therefore no bar to the instant petition.3 4. We find, in accord with the stipulation of the parties, that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All Ramp Service and linemen at the Employer's Columbus, Ohio, plant, including leadmen and working foremen, but excluding office clerical employees, professional employees, all other employees, guards, and supervisors as defined in the Act. [Direction of Election4 and Excelsior footnote omitted from publication.] assisted union. To the extent that this evidence bears on that question we make no determination, it being well established that a contention alleging domination or assistance of a labor organization by an employer is in effect an unfair labor practice charge, and therefore not properly litigable in a representation proceeding. Nathan Warren & Sons, Inc., 119 NLRB 292 at 294; Times Square Stores Corporation, 79 NLRB 361 at 365. We shall therefore accord IDC a place on the ballot in the election herein directed.