E. W. Wiggins Airways, Inc.

National Labor Relations Board - Board Decisions

May 28, 1974

210 N.L.R.B. 996 (N.L.R.B. 1974)

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.