Welch Aviation

National Labor Relations Board - Board Decisions

Sep 22, 1995

319 N.L.R.B. 44 (N.L.R.B. 1995)

44
319 NLRB No. 8
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Employer operates about 5 charters daily, and transports ap-
proximately 500 passengers per month on those flights.
2 Prior to 1992, the Employer also transported U.S. mail in its air-
craft, and the Employer’s president testified that at the time of the
hearing it was actively seeking a new contract to provide such serv-
ice beginning in June 1994.
3 On Monday mornings, Airborne packages are transported by
truck by the Employer from Saginaw to Alpena; trucks are also used
when weather conditions prevent air travel.
4 Other items are flown by the Employer to Sault Ste. Marie, and
delivered from the airport there to the addressee, again by one of
the Employer’s couriers.
Welch Aviation, Inc. and Local 486, International
Brotherhood of Teamsters, AFL–CIO. Case 7–
RC–20259
September 22, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, a hearing was held be-
fore Hearing Officer Patrick Labadie. Following the
hearing, and pursuant to Section 102.67 of the Na-
tional Labor Relations Board’s Rules and Regulations,
the case was transferred to the National Labor Rela-
tions Board for decision.
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 affirmed.
On the entire record in the case, the Board finds:
The Employer, a Michigan corporation, is an FAA-
certificated air carrier which provides scheduled air
cargo service and on-demand air taxi service in the
continental United States and Canada. The Employer’s
headquarters and principal place of business is located
at the Alpena, Michigan airport, with additional facili-
ties at Grand Rapids, Ypsilanti, and Pontiac, Michigan,
and Fort Wayne, Indiana. The Employer also provides
certain courier services described more fully below, as
well as maintenance and fuel services at some of the
airports from which it operates. In addition, the Em-
ployer is a dealer in new and used aircraft. During its
fiscal year ending in 1992, the Employer derived gross
revenues in excess of $2 million from its operations
described above.
The Employer owns or leases 13 aircraft and has ap-
proximately 40 employees, including 13 pilots and 7
mechanics. Additionally, the Employer has approxi-
mately 30 couriers, 13 of whom are full-time employ-
ees, 2 are part-time employees, and the remainder are
independent contractors. The Employer’s scheduled
cargo service includes flights directly from points in
Michigan to points in Illinois and Indiana as well as
intrastate cargo transportation in Michigan. Addition-
ally, the Employer provides both intrastate and inter-
state on-demand passenger service to various points
within and outside the State of Michigan, including
destinations in Canada.1 The Employer’s air operations
are conducted pursuant to certificates granted by the
FAA and by its Canadian counterpart, the Canadian
National Transportation Agency.2 The Employer is not
licensed to provide air transportation of any kind to
Alaska or Hawaii or to provide scheduled passenger
service to any destinations.
In addition to its air operations described above, the
Employer provides courier pickup and delivery service
of small packages to and from its aircraft. A signifi-
cant portion of this business involves the interbank
transportation of canceled checks, in which one of the
Employer’s couriers picks up a bundle of canceled
checks from a bank, drives it to the Employer’s air-
craft in one of the Employer’s vehicles, and loads it
onto the airplane. Another Employer courier unloads
the airplane at its destination and transports the checks
by truck to their final destination.
Since 1992, the Employer has also provided pickup
and delivery courier services for Airborne Express for
the entire northern portion of Michigan. According to
the Employer’s president, one of the Employer’s couri-
ers receives packages destined for northern Michigan
from Airborne at Airborne’s Saginaw, Michigan termi-
nal. As a general practice, the courier loads the pack-
ages onto one of the Employer’s aircraft, which then
flies to the Employer’s facility in Alpena.3 At Alpena,
the packages are sorted, and local items are removed
and delivered to the addressee by one of the Employ-
er’s couriers.4 With a few exceptions, the couriers
working out of Alpena use Employer vehicles marked
with Airborne’s logo and wear Airborne uniforms
when making these deliveries. The Employer’s couriers
follow a similar routine when they pick up packages
for Airborne for transportation by the Employer to
Saginaw, except that in Saginaw the packages are
handed to Airborne personnel.
The Union seeks to represent the Employer’s Air-
borne couriers domiciled in Alpena. There are approxi-
mately four employees in the unit sought. The Em-
ployer contends that it is a common carrier by air en-
gaged in interstate commerce and foreign commerce
within the meaning of the Railway Labor Act, that its
operations and employees are covered by the provi-
sions of that statute, and that it is, therefore, exempt
from the National Labor Relations Act. The Petitioner
asserts that the Employer is not covered by the Rail-
way Labor Act because it is engaged solely in contract
carriage by air on an irregular basis, and hence is not
exempt from the NLRA.
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45WELCH AVIATION
5 We note that this finding is consistent with prior Board decisions.
See, e.g., Elliott Flying Service, 260 NLRB 485 (1982); Mark Aero,
200 NLRB 304 (1972).
Section 2(2) of the National Labor Relations Act
provides that the term ‘‘employer’’ shall not include
‘‘any person subject to the Railway Labor Act.’’ 29
U.S.C. § 152(2). Similarly, Section 2(3) of the Act pro-
vides that the term ‘‘employee’’ does not include ‘‘any
individual employed by an employer subject to the
Railway Labor Act.’’ The Railway Labor Act, as
amended, applies to rail carriers and ‘‘every common
carrier by air engaged in interstate or foreign com-
merce, and every carrier by air transporting mail for or
under contract with the United States Government, and
every air pilot or other person who performs any work
as an employee or subordinate official of such carrier
or carriers, subject to its or their continuing authority
to supervise and direct the manner of rendition of his
service.’’ 45 U.S.C. §§ 151 First and 181.
On April 11, 1994, the Board requested that the Na-
tional Mediation Board study the record in this case
and determine the applicability of the Railway Labor
Act to the Employer. The NMB subsequently issued an
opinion indicating that, in its view, the Employer is a
carrier by air engaged in interstate commerce and sub-
ject to the Railway Labor Act. See Welch Aviation, 21
NMB 329 (1994).
Having considered the facts set forth above in light
of the opinion issued by the NMB, we find that the
Employer is engaged in interstate air common carriage
so as to bring it within the jurisdiction of the NMB
pursuant to Section 201 of Title II of the Railway
Labor Act.5 Accordingly, we shall dismiss the instant
petition.
ORDER
It is ordered that the petition in Case 7–RC–20259
is dismissed.
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