Southwest Airlines Co.

SOUTHWEST AIRLINES CO. Southwest Airlines Co. and Transport Workers Union of America, AFL-CIO, Petitioner. Case 16-RC- 7786 May 30, 1979 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Edward B. Valverde. Following the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer filed a brief. On January 9, 1979, the National Labor Relations Board issued a Decision and Direction of Election in the above-entitled proceeding.' The Board found, in- ter alia, that the Employer was not subject to the Railway Labor Act and that it was an employer within the meaning of Section 2(2) of the National Labor Relations Act, as amended, and directed an election in a unit of employees found appropriate. Thereafter, on January 23, 1979, the Employer (herein also called Southwest) filed certain documents with the Board alleging that it was engaged in the operation of interstate flight and, hence, might be subject to the Railway Labor Act. Subsequently, on February 8, 1979, the Board issued a Notice To Show Cause and Order in which it notified the parties to show cause why the record in this proceeding should not be reopened and the proceeding remanded to the Regional Director for Region 16 for a further hearing concerning the jurisdiction of the Board over the Em- ployer. The Board also ordered that the ballots cast in the election in this proceeding be impounded pending a determination of the jurisdiction issue. On March 1, 1979, the Board, having received no responses to the Notice To Show Cause, reopened the record in this proceeding and remanded it to the Regional Director for Region 16 for the purpose of conducting a hearing in order to receive evidence concerning the jurisdic- tion issue. Pursuant to this Order, a hearing was held on March 14, 1979, before Hearing Officer Ranson Ellis. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- i239 NLRB 1253. 2 The parties did not contest the Board's jurisdiction. Until January 25, 1979, Southwest Airlines Co. made flights exclusively within the State of Texas. tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the March 14, 1979, hearing and finds that they are free from prejudicial error. They and hereby affirmed. Upon the entire record in the case, the Board finds: Southwest Airlines Co. is a Texas corporation. On December 11, 1978, by CAB Order 78-12-70, the Civil Aeronautics Board (hereafter the CAB) granted the Employer authority to fly a route between Hous- ton, Texas, and New Orleans, Louisiana.' On January 25, 1979, Southwest initiated passenger air service be- tween Houston, Texas, and New Orleans, Louisiana, and on February 12, 1979, expanded the service to seven round trips per day, 5 days a week.4 Southwest does not interline with any other carrier or carry United States mail. Southwest does not take a position with respect to the jurisdiction of the National Labor Relations Board, although it poses the question of whether it is now subject to the jurisdiction of the National Media- tion Board. The Petitioner is willing to represent the employees involved under either the National Labor Relations Act or the Railway Labor Act. Section 2(2) of the Act provides in pertinent part that the term "employer" as used in the National La- bor Relations Act should not include any person sub- ject to the Railway Labor Act. Accordingly, because of the nature of the jurisdic- tional question presented here, we requested the Na- tional Mediation Board to study the record in this case and to determine the applicability of the Rail- way Labor Act to the Employer. In reply, we were advised by the National Mediation Board that, based on the above facts: . .. Southwest Airlines Co. is a common carrier by air within the meaning of Section 201 of the Railway Labor Act, as amended, 45 U.S.C. §181. 5 In view of the foregoing, we shall dismiss the petition. ORDER It is hereby ordered that the petition in Case 16- RC-7786 be, and it hereby is, dismissed. )On January 18, 1979, the Employer petitioned the CAB for an exemption from the provisions of title IV of the Federal Aviation Act of 1958, as amended, and the CAB's regulations, except secs. 401(k) and 411, notwith- standing the grant of the Houston.to-New Orleans route. Said application had not been acted upon by the CAB at the time of the hearing. ' In January 1979, Southwest applied to the CAB for an air carrier route between Dallas Love Field. Dallas, Texas, and New Orleans, Louisiana, Said application had not been acted on by the CAB at the time of hearing. Southwest Airlines Co. CJ-4760 (NMB May 8, 1979). 242 NLRB No. 101 641