Lane Aviation Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1974

211 N.L.R.B. 824 (N.L.R.B. 1974)

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.