Arthur Frommer Enterprises

National Labor Relations Board - Board Decisions

Apr 27, 1979

241 N.L.R.B. 1189 (N.L.R.B. 1979)

ARTHUR FROMMER ENTERPRISES
Arthur Frommer Enterprises, Inc.' and all its Ameri-
can Subsidiaries and Airline and Aerospace Em-
ployees Union, Teamster Local No. 732, Interna-
tional Brotherhood of Teamsters-Airline Division,
Petitioner. Case 2 RC- 17939
April 27. 1979
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS PENELLO
ANI) TRUESI)AI.E
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Jill A. Goldy. Pursu-
ant to Section 102.67 of the National Labor Relations
Board Rules and Regulations, Series 8, as amended,
and by direction of the Regional Director for Region
2, this case was transferred to the National Labor
Relations Board for decision. Thereafter, the Em-
ployer filed a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
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 hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this proceeding, the
Board finds:
I. The parties stipulated that the Employer, Ar-
thur Frommer Enterprises, Inc., and all its American
Subsidiaries, Arthur Frommer International, Inc.:
Arthur Frommer Charters, Inc.: Travel Center, Inc.;
and Arthur Frommer Hotels, Inc., is a New York
corporation located in New York, New York. During
1977 it derived gross revenues in excess of $500,000
and purchased hotel and airline services valued in ex-
cess of $5,000 directly from firms located outside the
State of New York.
The Employer contends that Section 2(2) and (3)
require the National Labor Relations Board to cede
jurisdiction to the National Mediation Board inas-
much as the Employer is covered by the Railway La-
bor Act as an indirect air carrier within the meaning
of the Federal Aviation Act, 49 U.S.C. § 1301(3). Ac-
cordingly, the Employer moved that the instant case
be transferred to the National Mediation Board. Ju-
risdiction is the sole issue in this case, the parties hav-
ing stipulated as to all other issues.
The Employer is engaged primarily in the charter-
ing of aircraft for overseas passenger flights in con-
junction with travel tours that it arranges, markets,
The name of the Employer appears as amended at the hearing.
and sells. The Employer does not own any aircraft,
and its employees are not used to operate the char-
tered aircraft. In support of its contention that it is
not within the jurisdiction of the National Labor Re-
lations Board, the Employer argues that, as a charter
operator, it pays a flat fee for the exclusive use of the
aircraft, determines the price to be charged, solicits
passengers, issues tickets, and controls all aspects of
the flight except for the actual transportation of the
passengers from the time of check-in at the airport
through arrival at the destination. The charter flights
are run on regular weekly schedules for periods as
long as 6 months. The Employer further argues that it
is required to file the charter agreement and certain
other documents with the Civil Aeronautics Board
(CAB) and to comply with numerous CAB regula-
tions.
Because of the jurisdictional nature of the issue
presented here, we have, as in similar 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 pri-
mary authority to determine its own jurisdiction, to
study the record in this case to determine the applica-
bility of the Railway Labor Act to the Employer. We
are administratively advised by the National Media-
tion Board under date of March 21, 1979, that:
The record establishes that Arthur Frommer
Enterprises, Inc. (AFE) essentially is a holding
company which owns and operates a number of
European and U.S. based subsidiaries engaged
in various travel and publishing ventures. The
AFE U.S. based subsidiary companies include
Arthur Frommer Charters which develops
wholesale tour/travel packages for retail market-
ing through travel agencies. Although Arthur
Frommer Charters contracts for the use of air-
craft from various scheduled and supplemental
air carriers, the respective carriers retain full con-
trol over the operation of their aircraft, the fuel-
ing and maintenance of the aircraft, as well as
the embarking and disembarking of passengers.
All aspects of receiving, sorting and load-
ing/unloading of baggage and freight at the air-
port additionally are the responsibility of the car-
riers. Arthur Frommer personnel have no
authority over the airlines' employees in any), re-
gard.
In addition to Arthur Frommer Charters,
AFE's U.S. based subsidiaries include Arthur
Frommer International which markets non-char-
ter travel programs; the Travel Center, a small
retail outlet for tour packages: Arthur Frommer
Hotels, Inc. which assists hotels in marketing;
Arthur Frommer, Inc./Arthur Frommer-Pas-
241 NLRB No. 191
1189
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
mantier, the AFE publishing subsidiaries; and
the $10-A-Day Travel Club, a membership club
providing various travel publications and dis-
count services.
Neither Arthur Frommer Enterprises. Inc. nor
its U.S. subsidiaries engage in direct common
carriage activities by air nor do they transport
mail, interline, or provide substitute air service
for carriers subject to the Railway Labor Act.
The contracts between Arthur Frommer Enter-
prises, Inc. and certain air carriers do not obli-
gate AFE or its subsidiaries to perform services
relating to air transportation wherein the carriers
control the manner of rendition of such services.
Based upon the foregoing, the National Me-
diation Board concludes that Arthur Frommer
Enterprises, Inc., including its U.S. based subsid-
iaries, is not a common carrier by air within the
meaning of Section 201 of the Railway Labor
Act, 45 U.S.C. §181.2
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 juris-
diction herein. We therefore assert jurisdiction herein.
2. The Petitioner is a labor organization seeking to
represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing 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. 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 col-
2 Arthur Frommer Enterprises, Inc., CJ-4583 (NMB March 21. 1979).
lective bargaining within the meaning of Section 9(b)
of the Act:
All full-time and regular part-time employees 3 of
the Employer at its premises located at 380
Madison Avenue, New York, New York, includ-
ing secretaries4 and employees in the following
departments: operations, reservations, documen-
tation, special group. charter group, electronic
data processing, mailing, filing, telex, accounting,
travel center, and hotel pass. excluding all pub-
lishing employees, managerial employees,
guards, all other employees, and supervisors, 5 as
defined in the Act.
[Direction of Election and Excelsior footnote
omitted from publication.]
3 The parties stipulated and we find that the following persons in the op-
erations department are permanent full-time employees and are included in
the unit: Christine Maruicio. Yana Blanco, and Carol Bayne. The parties
further stipulated and we find that Linda Cope and Sandra Clapper are
included in the unit as regular part-time employees inasmuch as each aver-
ages approximately 25 hours per week on an annual basis, are paid at the
same rate as regular full-time employees doing the same work and share the
same fringe benefits as other employees in the unit.
'The parties stipulated and we find that Susan Hellman and Barbara
Elliott do not assist or act in a confidential manner for persons who formu-
late. determine. and effectuate management policies in the field of labor
relations, and, thus, are included in the unit. It was stipulated, and we find,
however, that Eileen Zaryck, secretary to President Arthur Frommer, be
excluded inasmuch as she does assist and act in a confidential manner to
Frommer who formulates, determines, and effectuates management policies
in the field of labor relations.
I The parties stipulated at the hearing and we find that the following per-
sons do not possess any indicia of supervisory authority as set forth in Sec.
2( I) of the Act and are, therefore. not supervisors within the meaning of the
Act and are to be included in the unit: Lena Hollis, Kathy Wilson. and
Natalie Alexandrousky of the documentation department: Bill Cope, opera-
tions department: Sandra Barrish. travel center Irene Vogel, accounting;
and Alice Stanley. customer relations. The parties further stipulated and we
find that Yetta Rice in accounting and Janet Ecker in electronic data pro-
cessing possess and exercise authority to assign and direct the work of em-
ployees using independent judgment, and are therefore supervisors within
the meaning of Sec. 21 ) of the Act and are excluded from the unit.
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