July 14, 2004
VIA FACSIMILE (202) 692-5085
AND UPS
Mary L. Johnson
General Counsel
National Mediation Board
1301 K Street, N.W.
Suite 250 East
Washington, DC 20572
Re: NMB Case No. R-6998
American Airlines, Inc./TWU/AMFA
Dear Ms. Johnson:
Pursuant to Section 10.0 of the National Mediation Board’s (“NMB†or “Boardâ€) Representation Manual, the Aircraft Mechanics Fraternal Association (“AMFAâ€) hereby appeals the Investigator’s Rulings, dated June 16, 2004 (“Investigator’s Rulings†or “Rulingsâ€), in the above referenced representation dispute concerning the eligibility of the craft or class of Mechanics and Related Employees at American Airlines, Inc. (“American,†or “AA,†or Carrierâ€). See United Air Lines, Inc., 6 NMB 134 (1977). AMFA appeals the following Investigator’s Rulings of the NMB Investigator.
1. The ineligibility of 24 retired employees, Attachment B to Investigator’s Rulings;
2. The ineligibility of 20 employees, who have resigned, Attachment C to Investigator’s Rulings;
3. The ineligibility of 144 Fleet Service Clerks, Attachment E to Investigator’s Rulings;
4. The ineligibility of 89 former employees laid-off while on probation without any recall rights, Attachment F to Investigator’s Rulings (AMFA’s Exhibit E – Probationary Layoff –No Recall Rights), (AA’s Exhibit E – Employees laid off from probation);
5. The ineligibility of 4 Management Employees, Attachment G to Investigator’s Rulings;
6. The ineligibility of 1 Former TWA Employee Without an Employer-Employee Relationship With AA And Without Recall Rights, Attachment H to Investigator’s Rulings;
7. The ineligibility of 24 Former Employees Working At Other Airlines, Attachment I to Investigator’s Rulings;
8. The ineligibility of 25 Furloughed Employees Who Have Waived/Declined Recall, Attachment K to Investigator’s Rulings;
9. The ineligibility of 1 Employee Working Outside the Craft or Class, Attachment L to Investigator’s Rulings;
10. The ineligibility of 1 Terminated Employee, Attachment M to Investigator’s Rulings;
11. The ineligibility of 249 Fleet Service Fuelers, Attachment N to Investigator’s Rulings, (AMFA’s Exhibit M – Fleet Service Fueler), (AA’s Exhibit M – Fleet Service Clerk/Fuelers), (AA’s Addendum to Exhibit M, Fuelers);
12. The ineligibility of 366 Cleaners and 149 Janitors, (AMFA’s Schaible (2) Decl. and Schaible (3) Decl);
13. The ineligibility of 244 Miscellaneous Other Exclusions contained within Declarations accompanying AMFA’s April 22, 2004 Challenges and Objections, which were not considered in the Rulings,
a. The ineligibility of 10 additional retired employees not considered in the Rulings,
b. The ineligibility of 104 additional employees who have resigned not considered in the Rulings,
c. The ineligibility of 4 additional Fleet Service Clerks not considered in the Rulings,
d. The ineligibility of 6 additional former employees laid-off while on probation without any recall rights not considered in the Rulings,
e. The ineligibility of 5 additional management employees not considered in the Rulings,
f. The ineligibility of 21 additional Former TWA Employees Without an Employer-Employee Relationship With AA And Without Recall Rights not considered in the Rulings,
g. The ineligibility of 12 additional Former Employees Working At Other Airlines not considered in the Rulings,
h. The ineligibility of 3 additional Deceased Employees not considered in the Rulings,
i. The ineligibility of 65 additional Furloughed Employees Who Have Waived/Declined Recall not considered in the Rulings,
j. The ineligibility of 7 additional Terminated Employee not considered in the Rulings,
k. The ineligibility of 8 additional miscellaneous individuals ineligible for various reasons and not considered in the Rulings.
14. The ineligibility of 1,167 Cabin Cleaning and Lavatory Service Personnel, Attachment O to Investigator’s Rulings,
a. 15 duplicates not removed from Attachment O,
b. 2 additional duplicates not removed from Attachment O,
c. 28 names on eligibility list not removed from Attachment O,
d. 2 names removed from Attachment O but not removed from eligibility list,
e. Double counting of 14 individuals alleged to be Cabin Cleaning and Lavatory Service Personnel who have been counted as Fuelers,
f. 5 ineligible AA employees should not have been added to the AA eligibility list,
g. 1,167 Ineligible Fleet Service Clerks.
15. The ineligibility of 21 Former TWA Furloughees, Attachment P to Investigator’s Rulings;
16. The ineligibility of 46 Individuals from AMFA’s May 24, 2004 Submission, Exhibit “O†entitled “AA Eligibility List – TWA Exhibit D – Additional Info Acquired From,†not considered in the Rulings;
17. The ineligibility of 36 additional retired employees from Flagship News not considered in the Rulings;
18. The ineligibility of 150 additional TWA employees Not on TWU’ Exhibit D and therefore without contractual recall rights, not considered in the Rulings;
The Investigator’s Rulings is surprisingly sparse in its content and barely ten pages in length. The Investigator’s Rulings does not detail explicitly what evidence was considered among the voluminous submission of evidence in this dispute, especially by AMFA (easily 4,000 plus pages, excluding documentation submitted in the form of computer disks), other than to indicate the obvious prominence in the Investigator’s thinking of AA’s response to the challenges and objections posed, and to simply state that both the Transport Workers Union of America (“TWUâ€) and AMFA submitted challenges and objections and that American, TWU and AMFA responded to the Organizations’ challenges and objections. (Investigator’s Rulings, at 1-2). In the course of reviewing this appeal, AMFA asks this Board to keep in its mind the cursory nature of the Investigator’s Rulings and the virtually complete disregard of AMFA’s significant substantive evidence by the Investigator in formulating those Rulings. AMFA also asks this Board to keep in mind that this dispute involves a significant employee population at AA, the largest carrier in the world, and that there are a myriad number of issues implicated in this dispute as reflected in AMFA’s challenges and objections to the AA’s proposed Eligibility List as well as in the responses by all participants to the challenges and objections of AMFA and the TWU.
AMFA believes that an injustice is sought to be perpetrated against the Mechanics and Related Employees at American since the inception of this representation dispute by AA and the TWU. The injustice is to deny the Mechanics and Related Employees at American an election before the Board in this case by perpetrating the fraud of the absence of a showing of interest by means of an artificial inflation of the eligibility list by adding demonstrably ineligible voters and by failing to remove demonstrably ineligible voters. Both AA and the TWU have done their utmost to elevate the number of purported eligible voters to numbers that defy reason and Board precedent. Significantly, both AA and the TWU have made virtually no affirmative effort to engage in the process of removing ineligible voters from the eligibility list of their own volition. Typically, a carrier and the incumbent union actively engage in the removal process of ineligible voters at the NMB, which together with challenges and objections of the applicant facilitates a fair accounting of exactly who is or is not an eligible voter. In the instant case, the failure of AA and the TWU to remove enormous quantities of ineligible voters is intended to sabotage the fair accounting process of determining eligible voters by not removing ineligible voters in order to prevent an NMB election through fraudulent means.
Unfortunately, the Board’s Investigator who serves as the initial gatekeeper to prevent this kind of injustice and fraud, through many of the Investigator’s Rulings, either intentionally or through extreme carelessness in not caring to review, or by ignoring AMFA’s significant and substantial evidence, unfortunately perpetuates the fabrication that the eligible number of voters in this dispute is as many as 18,661 (Investigator’s Rulings at 10) (or more, 18,708 according to AA). (AA’s response to challenges and objections, dated May 24, 2004, at p. 2 and 11). AMFA appeals to this Board to rectify and overrule the numerous and substantial errors within the Investigator’s Rulings as set forth herein and thereby uphold not only the rights of the Mechanics and Related Employees at American under the Railway Labor Act but also the reputation and integrity of the Board.
AA’s Lack of Substantive Evidence
As is readily apparent in the Investigator’s Rulings, there is so much deference afforded by the Investigator to the AA submission responding to the challenges and objections by AMFA and the TWU, and the absence from consideration of AMFA’s evidence so pronounced, that the Investigator’s Rulings amount to almost a complete rubber stamping of AA’s responses to the challenges and objections. In doing so and in failing to consider AMFA’s evidence as contained in the Declarations submitted by AMFA, the Investigator breached her duty to review the evidence of all participants objectively and fairly and thereby committed numerous appealable errors.
AMFA would like to initially comment on AA’s proof in AA’s response to AMFA’s Challenges and Objections, dated May 24, 2004. James B. Weel, Managing Director of Employee Relations at AA, states in his Verification, dated May 24, 2004, that he examined the statement of facts presented in the letter brief of AA’s counsel, Sheldon M. Kline, dated May 24, 2004, and in the exhibits attached thereto and to the best of his information, knowledge, and belief, they are true and correct. (AA Response to Challenges and Objections, dated May 24, 2004, Verification at 12). Mr. Weel also declares in his Verification that he was personally responsible for the verification and validation of the evidence presented herein in response to the specific challenges and objections filed by AMFA and TWU to the List of Potential Eligible Voter in this representation dispute. (AA Response to Challenges and Objections, dated May 24, 2004, Verification at 12). Much of AA’s proof is contained on schedules, which are not supported by Declarations from the individuals who performed the investigation into the facts, which presumably serve as the basis for the Investigator’s Rulings in most instances. Sadly, much of AA’s proof does nothing more than attempt to verify the data supplied by the TWU and does not engage in independent inquiry.
AMFA believes that AA has not upheld its evidentiary burden to the Board by merely having Mr. Weel verify the work of undisclosed anonymous others at AA who have personal knowledge of the facts investigated and contained in AA’s submission schedules but for whom AA did not submit any Declarations setting forth facts pertaining to their investigation of the facts for AA regarding AMFA’s challenges and objections to AA’s proposed eligibility list. These Schedules prepared by AA constitute AA’s Exhibits A through M, Addendum to Exhibit M, TWU Managers, TWU Attachment 1 and TWU Attachment 2 (collectively “AA Exhibitsâ€). The obvious advantage to AA in proceeding in this manner in utilizing anonymous individuals as the sources of hearsay information contained on AA’s schedules and Exhibits is to forego the use of declarations from these anonymous individuals who can remain nameless, faceless and without accountability. The reliability of such proof, absent supporting documentation, is compromised, and should not be accepted over reliable evidence from AMFA, which indicates a conclusion contrary to the unreliable AA proof. Accordingly, in many instances as set forth herein, AMFA’s proof should be accepted by the Board over that of AA, especially as it pertains to challenged hearsay on AA’s schedules and Exhibits and/or when AA fails to disprove AMFA’s evidence, and especially since AMFA’s evidence in many instances consists of AA’s own documentation.
In addition, the documentation provided by AA contained in the above referenced AA Exhibits consists in large part of certain AA documents mostly entitled “Employee History – View History.†Significantly, each document page entitled “Employee History – View History,†contains the following disclaimer in bold lettering within a bold rectangular outline as follows:
IMPORTANT: This employee History site was designed to provide historical employee information accrued through December 31, 1998 only. For information beginning January 1, 1999, please use SHARP.
The obvious evidentiary flaw of this AA substantive evidence is that its disclaimer effectively precludes its use in disproving AMFA’s proof since the evidence cannot be relied on from January 1, 1999 through the present.
Accordingly, AMFA’s evidence in the various categories appealed, should be accepted over that of AA’s evidence utilizing evidence with the noted disclaimer, especially when AMFA uses AA documentation with no such disclaimer.
I.
Ineligibility of 24 Retired Employees in Ruling Attachment B
The Investigator erred in denying the removal from the eligibility list of 24 Retired Employees.
Initially, AMFA notes that it was error for the Investigator not to direct the Carrier to account for the names of all American, TWA, LLC and TWA, Inc. retirees from the craft or class of Mechanics and Related Employees since 1990 based on American’s bad faith failure to remove hundreds of ineligible retired voters from its Eligibility List prior to submitting it to the Board. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 4). Such a search was sought by AMFA to compel AA to ascertain additional ineligible retirees that were likely on AA’s eligibility list, which AMFA was unable to discover. This was not an unreasonable request since by its own count, AA concedes to including 1,228 ineligible voters on its original proposed eligibility list. (AA’s response to challenges and objections).
Pursuant to Section 9.210 of the NMB Representation Manual, AMFA identified and challenged 269 former AA employees on the basis of retirement. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 3-4).
In support of AMFA’s challenge to the 269 identified retired employees, AMFA submitted accompanying Declarations from Terry Harvey, Donald L. Rodgers, Joe Triglia, Mitchell McCorkle, Thomas Anthony Hain, Allen Jones, Peter Mendelsohn, Russell T. Bowles, Mark D. Inman, Alan G. Jackson, Steve C. Goodchild, Stephan K. Schalo, James Eubanks and Joe Barry, and copies of American's Flagship News from June 2002 through February 2004, inclusive, as well as AA travel authorization information from Sabre View. Exhibit A contained all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to Retired Employees.
The Investigator’s Rulings state that “[t]he Carrier has provided documentation that 243 individuals should be removed from the List because they have retired as of the cut-off date. The list of 243 individuals who have retired and will be removed from the List pursuant to Manual Section 9.210 is located at Attachment B.†(emphasis in original)(Investigator’s Rulings, p.5, 1). The Investigator’s Rulings does not state why the other 26 individuals challenged by AMFA were not being removed from the List. The Investigator’s Ruling also does not state whether any AMFA documentation was reviewed or considered in her implicit ruling that 26 individuals would not be removed from the list.
The provided documentation presumably referred to by the Investigator was contained in Exhibit A to AA’s May 24, 2004 submission, which contained a 7 page schedule prepared by AA entitled “Exhibit A-Retired†and certain AA documents mostly entitled “Employee History – View History.†Significantly, each document page entitled “Employee History – View History,†contains the following disclaimer in bold lettering within a bold rectangular outline as follows:
IMPORTANT: This employee History site was designed to provide historical employee information accrued through December 31, 1998 only. For information beginning January 1, 1999, please use SHARP.
The obvious evidentiary flaw of this AA substantive evidence is that its disclaimer effectively precludes its use in disproving that 24 of the 26 individuals challenged by AMFA as retired are not actually retired since the evidence cannot be relied on from January 1, 1999 through the present.
Alternatively, in the absence of substantive evidence from AA sufficient to disprove the substantive evidence submitted by AMFA demonstrating that the 24 individuals are ineligible retired individuals, the Board should accept AMFA’s proof (which consists of AA documentation) over AA’s insufficient proof and deem as ineligible the remaining 24 retired individuals challenged by AMFA as explained below.
Significantly, AA disagreed with AMFA only as to 26 of the 269 retired individuals challenged by AMFA (less than 10%). The AA Employee History – View History documentation provided by AA and attached by the Investigator to her Rulings is only for these 26 individuals. The Investigator does not expressly reference this AA documentation as a basis for her ruling to erroneously retain these 24 retired individuals on the Eligibility List. In any event, the disclaimer on the documentation provided by AA renders its documentation containing it less reliable that the evidence submitted by AMFA, which is AA documentation with no such disclaimer.
The Investigator’s ruling is wrong because the substantive evidence provided by AMFA for 24 of these 26 individuals with its Challenges and Objections proves these individuals are retired and AA’s evidence does not disprove that they are retired or otherwise eligible.
AMFA’s proof regarding the ineligibility of the 24 retired individuals are set forth below beginning with an alternative reason for the ineligibility of the first person noted based upon the assertion on AA’s schedule.
The first of these 24 ineligible individuals is ALJIBOORI, ROSA B., eligibility list number (hereinafter “EL#â€) 247, which AMFA reported as retired from TWA. (Harvey Declaration, dated April 22, 2004, Exhibit A). The Investigator’s Rulings Attachment B adopted AA’s conclusion to retain this employee because she was recalled on 4/3/02. However, the proposed eligibility list is supposed to be limited to all individuals with an employee-employer relationship as of the last day of the payroll period prior to March 12, 2004. (NMB General Counsel Johnson’s letter, dated March 15, 2004, at 2, emphasis in original).
Accordingly, since this challenged individual does not satisfy this NMB requirement, the Investigator’s Ruling was erroneous and this individual (ALJIBOORI, ROSA B., EL#247) should be deemed ineligible and should be removed from the eligibility list by the Board.
To the extent that the Investigator accepted the proof of the Company as a basis that AMFA had the wrong employee numbers for the following individuals and presumably AMFA’s AA documentation was for different individuals with the same name, the evidence submitted by AA did not disprove that the following individuals were not retired, or were the incorrect individuals.
AVERY, RONALD, EL#662
BAIRD, DAVID, EL#761
BROWN, RICHARD T., EL#2101
BUNERO, JR., JOSEPH J., EL#2265
CARLILE, JON D., EL#2668
CRAWFORD, JAMES K., EL#3668
DUNCAN, THOMAS S, EL#4769
EDWARDS, BILLY S., EL#4916
FITZPATRICK, ROBERT D., EL#5479
FORD, JAMES D.,EL#5582
GRAY, B J, EL#6532
JOHNSON, ALBERT T., EL#8445
LANG, JAMES R., EL#9513
PALMER, DONALD W., EL#12693
SHEPPARD, GEORGE, EL#15332
WLLIAMS, GERALD D., EL#18077
ZINK, ROBERT A.,EL#18668
In fact, there is no social security number on the evidence submitted by AA to demonstrate that the evidence it submitted is evidence pertaining to the correct individuals as reflected on the eligibility list and therefore that AMFA’s evidence is not for the correct individuals. Furthermore, AMFA has submitted Declarations, which demonstrate that the eligibility list contains errors regarding the last four digits of social security numbers for listed individuals. See for example the Declarations of Gary S. Schaible (4), dated April 21, 2004 and Ned V. Grabowski, dated April 21, 2004.
Accordingly, because AA’s evidence does not disprove AMFA’s evidence of retirement for these 17 individuals, the above 17 individuals, should be deemed ineligible and should be removed from the eligibility list by the Board.
The following individual discussion concerns the remaining 6 retired individuals.
BROWN, WILLARD D., EL#2126 - There was no documentation submitted by AA to disprove AMFA’s proof that this individual is not an AMR retiree as stated on AA’s own travel documentation submitted by AMFA. AA’s statement on its “Exhibit A-Retired†that this individual retired on 3/30/04 is unsupported by any substantive evidence because no substantive evidence was provided by AA to disprove AMFA’s evidence for this individual. It was incumbent upon AA to provide documentation in support of its assertion, which it failed to substantiate. Accordingly, BROWN, WILLARD D., EL#2126, should be deemed ineligible and should be removed from the eligibility list by the Board.
BURLILE, JERRY L., EL#2323 – There was no documentation submitted by AA to disprove AMFA’s proof that this individual is not an AMR retiree as stated on AA’s own travel documentation submitted by AMFA. AA’s statement on its “Exhibit A-Retired†that this individual retired on 3/26/04 is unsupported by any substantive evidence because no substantive evidence was provided by AA to disprove AMFA’s evidence for this individual. It was incumbent upon AA to provide documentation in support of its assertion, which it failed to substantiate. Accordingly, BURLILE, JERRY L., EL#2323, should be deemed ineligible and should be removed from the eligibility list by the Board.
COUNTS, JR. HARVEY A., EL#3598 - AA’s documentation does not disprove AMFA’s proof that this individual is an AMR retiree as stated on AA’s own travel documentation as challenged by AMFA. AA’s statement on its “Exhibit A-Retired†that this individual was “Layoff from OSM AA 6/13/03 – has recall rights –error in travel info – now corrected†is unsupported by either declaration or documentary evidence provided by AA and therefore does not disprove AMFA’s evidence for this individual. Accordingly, COUNTS, JR. HARVEY A., EL#3598, should be deemed ineligible and should be removed from the eligibility list by the Board.
HORTON, R H, EL#7876 - There was no documentation submitted by AA to disprove AMFA’s proof that this individual is not an AMR retiree as stated on AA’s own travel documentation submitted by AMFA. AA’s statement on its “Exhibit A-Retired†that this individual was recalled on 1/22/04 is unsupported by any substantive evidence. It was incumbent upon AA to provide documentation in support of its assertion, which it failed to substantiate. Accordingly, HORTON, R H, EL#7876, should be deemed ineligible and should be removed from the eligibility list by the Board.
MORGAN, D L, EL#11707 - AA’s documentation does not disprove AMFA proof that this individual is an AMR retiree as stated on AA’s own travel documentation. AA’s statement on its “Exhibit A-Retired†that this individual retired on 4/30/04 is unsupported by any substantive evidence because no substantive evidence was provided by AA to disprove AMFA’s evidence for this individual. Accordingly, MORGAN, D L, EL#11707, should be deemed ineligible and should be removed from the eligibility list by the Board.
WLLIAMS, ANNIE L., EL#18046 - AA’s documentation does not disprove AMFA proof that this individual is an AMR retiree as stated on AA’s own travel documentation. AA’s statement on its “Exhibit A-Retired†that this individual retired on 4/1/04 is unsupported by any substantive evidence because no substantive evidence was provided by AA to disprove AMFA’s evidence for this individual. Accordingly, WLLIAMS, ANNIE L., EL#18046, should be deemed ineligible and should be removed from the eligibility list by the Board.
Accordingly, the Investigator’s Rulings erroneously retained 24 ineligible individuals presumptively proven by AMFA to be individuals who are ineligible because they have retired and because AA did not prove their eligibility in its May 24, 2004 submission. Therefore, the Board should overrule the Investigator’s Ruling and remove these 24 individuals from the Eligibility List for the above stated reasons.
II.
Ineligibility of 20 Employees Who Have Resigned in Ruling Attachment C
The Investigator erred in denying the removal from the eligibility list of 20 employees who have resigned.
Pursuant to Section 9.2 of the NMB Representation Manual, AMFA identified and challenged 140 former employees as ineligible to vote in an NMB authorized election because they are not working regularly in the craft or class on and after the cut-off date due to their having resigned. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 4).
In support of AMFA’s challenges to the 140 identified employees who have resigned, AMFA submitted accompanying Declarations from Terry Harvey, Donald L. Rodgers, Joe Triglia, John Richter, Ben Lee, Mitchell McCorkle, Thomas Anthony Hain, Allen Jones, Daniel S. Knasick, Kenneth J. MacTiernan, Russ Dittmer, Richard Brandt, William Stewart, Peter Mendelsohn, Ned V. Grabowski, David W. Hedgpath, Derek N. Mills, Kirwin K. Scott, Perry W. Bruce, Russell T. Bowles, John C. Hanson, Mark D. Inman, Alan G. Jackson, Stephan K. Schalo, James Eubanks and Joe Barry. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 4).
In addition to the above referenced Declarations, documentation provided by AMFA in support of removal of these former employees who have resigned included “Furlough A people†in which employees had to resign in order to receive a $12,500 buyout from AA; AA Auto Time and Attendance Record (“AA Auto TAâ€) and resignations reflected on a blue disk provided and identified as “AA Recall List, Title I & II.†AMFA’s Exhibit B contained all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to Resigned Employees. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 4).
The Investigator’s Rulings states that “[t]he Carrier has provided documentation that 120 individuals should be removed from the List because they resigned as of the cut-off date. The list of the 120 individuals who resigned as of the cut-off date and will be removed from the List pursuant to Manual Section 9.2 is located at Attachment C.†(emphasis in original)(Investigator’s Rulings, p.5, 2). The Investigator’s Rulings does not state why the other 20 individuals challenged by AMFA were not being removed from the List. The Investigator’s Ruling also does not state whether any AMFA documentation was reviewed or considered in her implicit ruling that 20 individuals would not be removed from the list.
The provided documentation referred to by the Investigator was contained in Exhibit B to AA’s May 24, 2004 submission, which contained a 6 page schedule prepared by AA entitled “Exhibit B-Resigned†and certain documents mostly entitled “Employee History – View History.†Significantly, each document page entitled “Employee History – View History,†contains the disclaimer referred to earlier on page 5 of this brief, thereby effectively precluding the use of AA’s evidence from January 1, 1999 through the present.
The obvious evidentiary flaw of this AA substantive evidence is that its disclaimer effectively precludes its use in disproving that the 20 individuals challenged by AMFA as having resigned are not actually resigned since AA’s documentary evidence is unreliable after January 1, 1999.
Alternatively, in the absence of substantive evidence from AA sufficient to disprove the substantive evidence submitted by AMFA demonstrating that the 20 individuals are ineligible individuals who have resigned, or proof that the 20 individuals are eligible, the Board should accept AMFA’s proof (which consists of AA documentation) over that of AA’s insufficient hearsay proof on its “Exhibit B-Resigned†and deem as ineligible the remaining 20 individuals who have resigned.
The Investigator’s ruling is wrong because the substantive evidence provided by AMFA for these 20 individuals with its Challenges and Objections proves these individuals have resigned and AA’s evidence does not disprove that they have resigned, or prove their eligibility.
For example, the Declaration of John Richter, dated April 20, 2004, submitted by AMFA with its Challenges and Objections, states that BATISTA, JR. PEDRO A., EL#1048, resigned approximately in May 1994 and that BECKETT, LEONARD O., EL#1154, resigned and is currently working for another carrier, Atlas Air. The Declaration of Richard Brandt, dated April 2004, submitted by AMFA with its Challenges and Objections, states that ELLIS, GODFREY, EL#5000 resigned. ELLIS, GODFREY, EL#5000 is also listed on the Continental Seniority List, which AMFA provided on disk as evidence that Mr. Ellis is working for another carrier. The Declaration of Russ Dittmer, dated April 18, 2004, submitted by AMFA with its Challenges and Objections, states that JAFFE, NICHOLAS D., EL#8294 resigned. The Declaration of Daniel S. Knasick, dated April 20, 2004, submitted by AMFA with its Challenges and Objections, states that LAVACCA, FRANK C., EL#9604 resigned and has been working for UPS since then. AA, no doubt, did not consider the Richter, Brandt, Dittmer and Knasick Declarations and therefore neither did the Investigator in the Investigator’s Rulings. AA’s proof for these individuals does not disprove AMFA’s proof that these individuals resigned AA and that many are even working for other carriers.
Accordingly, because AA’s evidence for these 5 individuals does not disprove AMFA’s evidence of resignations and other reasons of ineligibility such as working for other carriers, the above 5 individuals, should be deemed ineligible and should be removed from the eligibility list by the Board.
To the extent that the Investigator accepted the proof of the Company as a basis that AMFA had the wrong employee numbers for the following individuals and presumably AMFA’s AA documentation was for different individuals with the same name, the evidence submitted by AA did not disprove that the following individuals did not resign, or were the incorrect individuals. In fact, there is no social security number on the evidence submitted by AA to demonstrate that the evidence it submitted is evidence pertaining to the correct individuals as reflected on the eligibility list and therefore that AMFA’s evidence is not for the correct individuals.
BUTLER, DAVID, EL#2408 (TERM 53 on his Auto TA translates to Resignation on page 2 of the AA Transaction Codes provided by AMFA with its Challenges and Objections) Apparently, AA in its challenges response erroneously used documentation from BUTLER, DAVID W., EL#2410, who is an eligible voter.
RAINBOLT, BRYAN K.,EL#13585 (TERM 52 on his Auto TA translates to Resignation on page 2 of the AA Transaction Codes provided by AMFA with its Challenges and Objections).
CIHAK, CHARLES, EL#3099 - AA’s documentation does not disprove AMFA’s proof that this individual has resigned as stated on the Title II RIF List disk as challenged by AMFA. AA’s statement on its “Exhibit B-Retired†that this individual was “LAYOFF 2/6/03 & Currently on TII Recall list –shows resigned, but is actually a decline for that city†is unsupported by either declaration or documentary evidence provided by AA and therefore does not disprove AMFA’s evidence for this individual. Accordingly, CIHAK, CHARLES, EL#3099, should be deemed ineligible and should be removed from the eligibility list by the Board.
HARRELL, JACOB, EL#7107; HARRISON, TROY, EL#7167; MODLIN, CHARLES, EL#11515; WILLIAMSON, EDDIE, EL#18150- AA’s documentation does not disprove AMFA’s proof that these individuals have resigned as reflected by TERM 53 on their Auto TA, which translates to Resignations on page 2 of the AA Transaction Codes provided by AMFA with its Challenges and Objections. In fact, AA confirms AMFA’s proof on “Exhibit B-Resigned,†yet still remarkably considers them eligible. AA’s statement on its “Exhibit B-Retired†that these individuals “RESIGNED WITH RECALL TO OTHER JOB,†(other job is unspecified) is unsupported by either declaration or documentary evidence provided by AA and therefore does not disprove AMFA’s evidence for this individual. Accordingly, HARRELL, JACOB, EL#7107, HARRISON, TROY, EL#7167, MODLIN, CHARLES, EL#11515 and WILLIAMSON, EDDIE, EL#18150, should be deemed ineligible and should be removed from the eligibility list by the Board.
The Board should not allow demonstrated evidence of a resignation to nonetheless serve as the basis for eligibility based on an alleged right to recall to an unspecified job. Such a rule would make a mockery of the Board’s eligibility rules.
WILLIAMS, MARC, EL#3099 - AA’s documentation does not disprove AMFA’s proof that this individual has resigned as stated on the Title I RIF List disk as challenged by AMFA. AA’s statement on its “Exhibit B-Retired†that this individual was “LAYOFF 10/19/01 with recall rights – no AMFA proof†is unsupported by either declaration or documentary evidence provided by AA and therefore does not disprove AMFA’s evidence for this individual. Accordingly, WILLIAMS, MARC, EL#3099, should be deemed ineligible and should be removed from the eligibility list by the Board.
Similarly, AA’s evidence as to the following individuals was insufficient to overcome AMFA’s proof for the following individuals:
GONZALEZ, EDGARDO L., EL#6353
HENDRICKS, JONATHAN D., EL#7412
KIAFFAS, NICHOLAS J., EL#8970
SAMSEN, MARC S., EL#14736 - Resigned $12,500 SEA
STOREY, DENNIS J., EL#16210
WIEMERS, JEFFREY A., EL#17985
Accordingly, the Investigator’s Rulings erroneously retained 20 ineligible individuals proven by AMFA to be individuals who have resigned and that AA did not disprove that they did not resign or otherwise prove their eligibility in its May 24, 2004 submission and therefore the Board should overrule the Investigator’s Ruling and remove these 20 individuals from the Eligibility List for the above stated reasons.
III.
Ineligibility of 144 Fleet Service Clerks in Ruling Attachment E
The Investigator erred in denying the removal from the eligibility list of 94 Fleet Service Clerks in Ruling Attachment E. The Investigator further erred in failing to consider or rule upon 48 additional Fleet Service Clerks contained on AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks†apparently because AA did not comment upon them.
The Board has found that the single craft or class of Airline Mechanics, Ground Service, Plant Maintenance, and Fleet Service Personnel is no longer a proper craft or class at either American or TWA-LLC. Instead, the proper crafts or classes are: Mechanics and Related Employees and Fleet Service Employees. American Airlines, Inc., 29 NMB 240, 251 (2002). The Board also found therein that American and TWA-LLC operate as a single transportation system for purposes of representation of the following crafts or classes: Mechanics and Related Employees; Fleet Service Employees; and Stock and Stores Employees, each of which has its own collective bargaining agreement with American. Id. at 253. It is Board policy to adhere to its previous craft or class determinations in the absence of any material change in circumstances. American Airlines, Inc., 21 NMB 60, 72 (1993). (AMFA’s Submission, dated May 24, 2004).
Accordingly, Board precedent establishes that the crafts or classes of Mechanics and Related Employees at American and Fleet Service Employees at American are two separate and distinct crafts or classes. (AMFA’s Submission, dated May 24, 2004).
Pursuant to Section 9.2 of the NMB Representation Manual, AMFA identified and challenged 363 Fleet Service employees as ineligible to vote in an NMB authorized election because they are not working regularly in the craft or class on and after the cut-off date. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6).
In support of AMFA’s challenges to the 363 Fleet Service employees, AMFA submitted accompanying Declarations from Terry Harvey and others. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6). Specifically, the 363 Fleet Service Employees identified by AMFA are employees, who do not belong to the craft or class of Mechanics and Related Employees, but belong to the craft or class of Fleet Service Employees. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6). The Fleet Service Employees have a separate CBA from the Mechanics and Related Employees and these two groups of employees are distinct and undisputed crafts or classes. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6).
In addition to the above referenced Declarations, documentation provided by AMFA in support of removal of these Fleet Service Employees from the Carrier’s Eligibility List include AA position detail documents, which set forth the correct title of these AA employees; and a Sabre View window for these Fleet Service Employees in which the last four digits of the social security numbers for the challenged individuals are confirmed. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6). AMFA’s Exhibit D contained all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to Fleet Service Clerk Employees not working in the Mechanics/Related craft or class. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6).
The Investigator’s Rulings states that “[t]he Carrier has provided documentation that 221 individuals should be removed from the List because they have assumed positions in the Fleet Service craft or class. However, the carrier provided documentation that 94 former TWA LLC employees never assumed a position on American and were furloughed by TWA LLC. Because the craft or class from which they were furloughed was Mechanics and Related, and because they continue to have recall rights in that craft or class, they still enjoy an employee-employer relationship with American and have a reasonable expectation of returning to work. Therefore, these 94 employees remain eligible. The list of the 221 individuals who are working in positions within the craft or class of Fleet Service Employees and will be removed from the List pursuant to Manual Section 9.2 is located at Attachment E.†(emphasis in original)(Investigator’s Rulings, p.5-6, numbered 4). The Investigator’s Rulings does not state why the other 48 (363-221=142-94=48) individuals challenged by AMFA contained on AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks†were not being removed from the List. The Investigator’s Ruling also does not state whether any of AMFA’s documentation was reviewed or considered in her ruling that 142 individuals would not be removed from the list.
The provided documentation referred to by the Investigator was contained in Exhibit D to AA’s May 24, 2004 submission, which contained an 11 page schedule prepared by AA entitled “Exhibit D- Fleet Service†and certain documents mostly entitled “Employee History – View History.†Significantly, each document page entitled “Employee History – View History,†contains the disclaimer referred to earlier on page 5 of this brief, thereby effectively precluding the use of this AA’s evidence from January 1, 1999 through the present.
The obvious evidentiary flaw of this AA substantive evidence is that its disclaimer effectively precludes its use in disproving that the 94 individuals challenged by AMFA as Fleet Service Clerks are not actually Fleet Service Clerks or that their recall rights are to the Fleet Service craft or class and not to the Mechanics and Related Employees craft or class since AA’s documentary evidence cannot be relied on.
The Investigator and AA disagreed with AMFA only as to 144 of the 363 individuals who it is not contested are Fleet Service Clerks (Job Code 9400 on the AutoTA and described as “FLEET SVC CLK FT†on AA’s job codes provided by AMFA in documentation and computer disks to the Investigator as part of AMFA’s Challenges and Objections).
Initially we note that, there was no documentation submitted by AA to disprove AMFA’s proof (AMFA’s Exhibit D schedule, sequence number 179 and accompanying documentation) that LITTLE, FAITH, EL#9928 is not working in the Mechanics and Related craft or class and the Investigator adoption of AA’s conclusions resulted in this individual not being accounted for in the Rulings. Accordingly, LITTLE, FAITH, EL#9928, should be deemed ineligible and should be removed from the eligibility list by the Board.
In addition, AMFA submitted evidence (Position Details) on two individuals that were inadvertently omitted from AMFA’s Exhibit D due to a computer glitch. These two individuals are BRIGHT, KAREN, EL#1953 and VARGAS, ROBERTO, EL#17238, which show these individuals as active Crew Chiefs Fleet Service Clerks, thereby demonstrating that they are not working in the Mechanics and Related craft or class. There was no documentation submitted by AA to disprove AMFA’s proof (AA Position Details) that BRIGHT, KAREN, EL#1953 and VARGAS, ROBERTO, EL#17238, are not working in the Mechanics and Related craft or class and the Investigator adoption of AA’s conclusions for this category resulted in these individuals not being accounted for in the Rulings. Accordingly, BRIGHT, KAREN, EL#1953 and VARGAS, ROBERTO, EL#17238, should be deemed ineligible and should be removed from the eligibility list by the Board.
The Investigator’s ruling is further erroneous because the substantive evidence provided by AMFA for these 144 individuals with its Challenges and Objections proves these individuals are Fleet Service Clerks and therefore properly considered to be furloughed from the craft or class of Fleet Service Employees at American, a distinct and separate craft or class at American. (AMFA’s Challenges and Objections, Exhibit D). AA’s evidence does not prove that these individuals are furloughed from the craft or class of Mechanics and Related Employees. Therefore, AMFA’s contrary proof must be accepted in that these employees are presumed to belong to the craft or class of Fleet Service Employees to which Fleet Service Clerks belong.
In addition, AA’s May 24, 2004 response to AMFA’s Challenges and Objections does not reference AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks†except to presumptively mention (apparently without checking) that AMFA was only challenging 315 and not 363 of these individuals because AMFA allegedly had submitted duplicate entries, without of course referencing the nonexistent duplications. (AA’s response to Challenges and Objections, dated May 24, 2004, at 4). Consequently, AA did not submit any documentation to contest AMFA’s evidence for any of the 48 individuals listed on AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks.†Not having submitted evidence to the Investigator contesting the individuals challenged by AMFA in AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks,†accompanying AMFA’s April 22, 2004 Challenges and Objections, AA has lost the opportunity to do so on appeal. (NMB Representation Manual, §10.2).
Accordingly, the Investigator erred in blindly relying on AA’s erroneous analysis, which served as the basis for the implicit ruling not to consider AMFA’s evidence regarding the additional 48 ineligible Fleet Service Clerks.
In the absence of any evidence from AA contesting the 48 individuals on AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks†to disprove the substantive evidence submitted by AMFA demonstrating that these 48 individuals are ineligible Fleet Service Clerks furloughed from the craft or class of Fleet Service Employees and not from the Mechanics and Related Employees craft or class, the Board should accept AMFA’s proof (which consists of AA documentation) over the absence of any AA evidence upon which the Investigator ruled in error and deem the 48 Fleet Service Clerks challenged by AMFA as ineligible.
Furthermore, AMFA’s evidence in the form of AA’s own documentation for 55 of the 94 challenged Fleet Service Clerks proves that they are active Fleet Service Clerks and therefore ineligible to vote. In fact, much of AA’s “Exhibit D – Fleet Service†schedule confirms the active status of many of the following ineligible Fleet Service Clerks.
Seq Num EE # LastName FirstName AMFA Documentation
1 76 683775 ADAMS KENNETH W Position Detail FSC Active
2 377 309555 ANDERSEN BRIAN J Position Detail FSC Active
3 436 480803 ANDRADE OSCAR Position Detail FSC Active
4 646 308249 AUSTIN SAMUEL D Position Detail FSC Active
5 805 320669 BALANTA MARIO Position Detail FSC Active
6 1043 537251 BATES GREGORY A Position Detail FSC Active
7 2620 673223 CAPADONA PETER P Position Detail FSC Active
8 2832 474783 CASTELLANOS KENDY Position Detail FSC Active
9 2890 673189 CELONA FRANCIS G Position Detail FSC Active
10 3151 577025 CLARK RANDY AutoTA FSC Active
11 3678 680337 CRAWFORD THEODORE Position Detail FSC Active
12 3863 141897 CZARNY ROBERT Position Detail FSC Active
13 3876 650418 DACOSTA ANTONIO Position Detail FSC Active
14 5358 673301 FERNANDEZ CESAR J Position Detail FSC Active
15 5535 630155 FLORES JR RAMON A Position Detail FSC Active
16 5575 310401 FONSECA JR PEDRO Position Detail FSC Active
17 6007 630314 GARRIDO JESUS Position Detail FSC Active
18 6133 514300 GERTH JR CHARLES Position Detail FSC Active
19 6314 684125 GOLGERT DALE W Position Detail FSC Active
20 6316 308571 GOLSTON ROBERT Position Detail FSC Active
21 6318 310463 GOMEZ ANDREW Position Detail FSC Active
22 6411 14035 GORALCZYK WilliAM Position Detail FSC Active
23 6574 589811 GREEN MERRITT E Position Detail FSC Active
24 8040 77957 HULL GERALD Position Detail FSC Active
25 8199 115490 IRVING T Position Detail FSC Active
26 8852 589970 KELLEY KEVIN Position Detail FSC Active
27 9136 630108 KLOEPPEL GARY A Position Detail FSC Active
28 9345 537433 KUBIEN LEE E Position Detail FSC Active
29 9451 370506 LALL RODNEY Position Detail FSC Active
30 9878 562792 LlMJOCO C Position Detail FSC Active
31 10898 567807 MCCUGH RAYMOND 0 Position Detail FSC Active
32 11002 684182 MCGUIRE JOSEPH J Position Detail FSC Active
33 11682 672599 MORANI JOSEPH A Position Detail FSC Active
34 12254 310437 NOLAN DAVID Position Detail FSC Active
35 12316 524207 NUNEZ DAVID Position Detail FSC Active
36 12791 609829 PASCUAL KENNETH AutoTA FSC Active
37 13075 90296 PETO CHRISTOPHER V Position Detail FSC Active
38 13182 683830 PIERRE JAMES Position Detail FSC Active
39 13395 684299 PRAKOP WILLIAM H Position Detail FSC Active
40 13411 672399 PREHN STEPHEN P Position Detail FSC Active
41 14314 673870 RODRIGUEZ JOSE L Position Detail FSC Active
42 14317 587417 RODRIGUEZ JOSEPH A Position Detail FSC Active
43 14330 650634 RODRIGUEZ ROSA AutoTA FSC Active
44 14340 672390 RODY WILLIAM G Position Detail FSC Active
45 14646 672546 RYANJR JOHN L Position Detail FSC Active
46 14670 500326 SAEED IMTENAN Position Detail FSC Active
47 15656 672911 SMITH FRANKLIN E Position Detail FSC Active
48 15703 141781 SMITH MICHAEL J AutoTA FSC Active
49 16699 583410 THOMASJR BLASE Position Detail FSC Active
50 17145 515034 VALEGA DEYDER B Position Detail FSC Active
51 17399 673616 VOLLERS PAUL R Position Detail FSC Active
52 18299 163361 WITHERBY JAMES Position Detail FSC Active
53 18354 486739 WONG JIMMY Position Detail FSC Active
54 18469 305737 WRIGHT TYRONE Position Detail FSC Active
55 18531 181159 YERO ISMAEL Position Detail FSC Active
Accordingly, the Investigator’s Rulings erroneously retained 144 ineligible individuals proven by AMFA to be individuals who are Fleet Service Clerks eligible to vote in the craft or class of Fleet Service Employees but not in the craft or class of Mechanics and Related Employees and that AA’s proof is nonexistent as to 48 of these individuals and insufficient as to the 94 others to overcome AMFA’s superior substantive proof and therefore the Board should overrule the Investigator’s Ruling and remove these 142 Fleet Service Clerks from the Eligibility List for the above stated reasons.
IV.
Ineligibility of 89 Former Employees Laid-Off
While On Probation Without Any Recall Rights
The Investigator erred in denying the removal from the eligibility list of 89 former employees laid off while on probation without any recall rights.
The Investigator’s Rulings borrowing from AA’s submission (AA’s response to Challenges, dated May 24, 2004, at 5) states that “American submitted evidence that 89 of the furloughed probationary employees have a reasonable expectation of returning to work. American furloughed 142 probationary Mechanics and Related Employees in the post 9/11 furlough. American began recalling employees in 2002 and since that time has reemployed approximately 75 furloughed probationary employees. Therefore, American has a demonstrated practice of recalling furloughed probationary employees. Two employees do not have a reasonable expectation of returning to work. These two individuals will be removed from the List. See Attachment F. (emphasis original) (Rulings at p. 6).
Article 16, Section (a) of the existing AA/TWU collective bargaining agreement for the Aviation Maintenance Technicians and Plant Maintenance Employees of American Airlines, Inc., effective April 15, 2003 provides as a condition precedent to employees who are laid off due to a reduction in force to continue to accrue seniority during layoff to have “completed his probation period.†(emphasis supplied). See copy of AA/TWU CBA, Art. 16, §(a), attached to Rodgers Decl., dated April 21, 2004;
(AMFA’s Challenges and Objections, dated April 22, 2004, p. 7).
The NMB’s Representation Manual provides that furloughed employees will be deemed eligible to vote only if “they retain an employee-employer relationship and have a reasonable expectation of returning to work.†(emphasis supplied)(Representation Manual § 9.204). Under the AA/TWU CBA, the 89 ineligible employees did not retain an employee-employer relationship after their layoff because they did not complete their probation and therefore they are ineligible to vote. In this case, American has included on the submitted eligibility list individuals who are allegedly on furlough but who have no seniority rights under the collective bargaining agreement. In view of this cessation of the employee-employer relationship with the Carrier, the employees who have not completed their probationary period prior to being laid off by American must be deemed ineligible. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7).
Accordingly, the Investigator erred in ruling the 89 former employees as eligible voters because the above AA/TWU CBA’s contractual language renders any demonstrated practice of rehiring by AA as irrelevant for purposes of establishing whether these former employees retain an employee-employer relationship with AA, which under the contract they clearly do not. Under the AA/TWU CBA, at most, all that these laid off employees who have not successfully completed their probation have, is a hope of being hired again by AA as a new employee.
AMFA’s Exhibit E to the Harvey Declaration contains the 89 former employees that should be removed from the Carrier’s Eligibility List because they are former employees who did not complete their probationary period prior to being laid off by American and therefore do not retain any recall rights to American. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7). Further Declarations in support of excluding these employees are those of Schaible, Cunningham, Rodgers, Guffanti, Dittmer, Bruce, Bowles, Inman and Jackson. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7).
Attached to AMFA’s Exhibit E were AA Sabre View documentation regarding the expiration of travel privileges for these former probationary employees. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7). In addition, these 89 employees are not contained on the February 2004 Title I Recall List provided to all participants on disk in this proceeding. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7). See blue disk marked as “AA Recall List, Title I & II,†thereby reflecting an absence of seniority or recall rights to American. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7). AMFA’s Exhibit E contains all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to the 89 former employees without recall rights because they were laid off before they completed their probation period with the Company. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7).
Accordingly, the Investigator’s Rulings erroneously retained 89 ineligible individuals who did not complete their AA probation before they were laid-off and who do not have any seniority or recall rights to AA under the AA/TWU CBA and therefore do not retain an employee-employer relationship with AA. Therefore, the Board should overrule the Investigator’s Ruling and remove these 89 ineligible individuals from the Eligibility List for the above stated reasons.
V.
Ineligibility of 4 Management Employees in Ruling Attachment G
The Investigator erred in denying the removal from the eligibility list of 4 Management Employees.
Pursuant to Section 9.211 of the NMB Representation Manual, AMFA identified and challenged 80 Management Officials who are ineligible to vote. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 8).
In support of AMFA’s challenges to the 80 identified management employees, AMFA submitted Declarations from Terry Harvey and others. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 8).
AMFA’s Exhibit F contained all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to the Management Employees. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 8). Specifically, there is AA Position Details documentation, AA Sabre View documentation and Travel Authorization Documentation, which, respectively, links the AA personnel number to the management employee’s name to the social security number digits. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 8).
The Investigator’s Rulings states that “[t]here was substantial overlap in the TWU and AMFA list of employees challenged as Management Officials. Of the 80 individuals challenged as management officials, the Carrier produced evidence that five are working in the Mechanics and Related Employees craft or class. These five will remain on the List. The remaining 75 are Management Officials and their names will be removed from the List pursuant to Manual Section 9.211. See Attachment G.†(Investigator’s Rulings at p.6, numbered 6).
The Investigator’s Ruling is clearly wrong for at least two of the five individuals listed as eligible on Attachment G of the Investigator’s Rulings because they are not working in the Mechanics and Related craft or class according to the AA notes on AA’s Exhibit F – Management Employees. Specifically, the Rulings and AA seek to circumvent the clear dictates of Section 9.211 of the NMB Representation Manual that “[m]anagement officials are ineligible to vote,†for GRIFFIN, WENDYL W., EL#6646 and OLSON, JOHN M., EL#12478. In addition, Attachment G contradicts AA’s own statement that it “agrees with AMFA (and TWU) that individuals who are serving as members of management, notwithstanding the fact that they retain recall rights to the mechanics and related craft or class, should not be included on the List of Potential Eligible Voters.†(AA’s Response to Challenges and Objections, dated May 24, 2004, at p.5).
The Investigator’s Ruling is also wrong for the following other two individuals (BLANCK JR. BILLY L., EL#1546; GUERRERO, AUGUSTINE, EL#6726) listed as eligible on Attachment G of the Investigator’s Rulings because AA’s proof is insufficient to overcome AMFA’s proof of ineligibility based on the ground that these individuals are management employees.
The evidence that five are working in the Mechanics and Related craft or class referred to by the Investigator is contained in Exhibit F to AA’s May 24, 2004 submission, which contained a 3 page schedule prepared by AA entitled “Exhibit F-Management Employees†and certain documents mostly entitled “Employee History – View History.†Significantly, each document page entitled “Employee History – View History,†contains the disclaimer referred to earlier on page 5 of this brief, thereby effectively precluding the use of AA’s evidence from January 1, 1999 through the present.
The obvious evidentiary flaw of this AA substantive evidence is that its disclaimer effectively precludes its use in disproving that the 4 individuals challenged by AMFA on this appeal as being in management are not actually in management since AA’s documentary evidence cannot be relied on.
Conversely, AMFA’s evidence in the form of Position Details unequivocally affirms the management position for all 4 of the individuals appealed is that of “Job Code 1060 – SUPV ACF MTC DOT.†The Position Title for these 4 individuals are as follows:
BLANCK JR. BILLY L., EL#1546 – Supv Production;
GRIFFIN, WENDYL W., EL#6646 – Supv Continuous Improvement;
GUERRERO, AUGUSTINE, EL#6726 - Supv Inspection;
OLSON, JOHN M., EL#12478 - Supv Inspection.
Accordingly, the Investigator’s Rulings erroneously retained 4 ineligible individuals proven by AMFA to be individuals who are in management and that AA’s proof is insufficient to overcome AMFA’s proof and therefore the Board should overrule the Investigator’s Ruling and remove these 4 individuals from the Eligibility List for the above stated reasons.
VI.
Ineligibility of 1 Former TWA Employee Without an Employer-Employee Relationship with AA and Without Recall Rights in Rulings Attachment H
The Investigator erred in denying the removal from the eligibility list of 1 former TWA employee without an employer-employee relationship with AA and without recall rights.
Pursuant to Section 9.2 of the NMB Representation Manual, AMFA identified and challenged 279 employees as ineligible to vote in an NMB authorized election because they are not working regularly in the craft or class on and after the cut-off date. (AMFA’s Challenges and Objections, dated April 22, 2004, pp. 8-9).
In support of AMFA’s challenges to the 279 individuals, AMFA submitted accompanying Declarations from Terry Harvey and others. (AMFA’s Challenges and Objections, dated April 22, 2004, pp. 8-9).
AMFA’s Exhibit G contains all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to former TWA employees without an employee-employer relationship with the Carrier. The computer disk labeled “TWA Recall List Title I†does not contain the names of the challenged 279 former TWA employees. These employees are also not on the AMFA provided computer disk marked as “AA Recall List, Title I & II.†In addition, they are not on the computer disk labeled AA Sen. List 02, 03, 04. These individuals are also not even on the July 2001 TWA Seniority List, which is also part of Exhibit G. Finally, a Supplemental Q&A put out by the TWU on May 21, 2002, question 8, also part of Exhibit G, supports AMFA’s contention that these challenged individuals are ineligible to vote in the current representation dispute. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 9).
The Investigator’s Rulings states that “AMFA challenged 279 individuals, stating that these are former TWA employees on furlough without American recall rights. American submitted evidence that seven of these individuals do have recall rights on American, or are currently working at American. These individuals will remain on the List. The remaining 272 Individuals will be removed from the List pursuant to Manual Section 9.204. The List of these employees is Attachment H. (Investigator’s Rulings at p. 6, numbered 7).
REITER, SHAD R., EL#13862 - There was no documentation submitted by AA to disprove AMFA’s proof that this individual is not Status Code T – Voluntary Termination Without Notice (see TREC-OJT status codes from the TREC user guide, attached to Hain Decl., dated May 21, 2004) as stated on AA’s TWA Employee OJT History documentation submitted by AMFA. AA’s statement on its “Exhibit G-TWA with no recall†that this individual was “Furloughed from A/C Avionics TWA & has recall rights†is unsupported by any substantive evidence because no substantive evidence was provided by AA to disprove AMFA’s evidence for this individual. It was incumbent upon AA to provide documentation in support of its assertion, which it failed to substantiate. Accordingly, REITER, SHAD R., EL#13862, should be deemed ineligible and should be removed from the eligibility list by the Board.
Accordingly, the Investigator’s Rulings erroneously retained 1 ineligible individuals proven by AMFA to be an individual who was a Voluntary Termination Without Notice (Status Code T ) and that AA’s proof is insufficient to overcome AMFA’s proof and therefore the Board should overrule the Investigator’s Ruling and remove this 1 individual from the Eligibility List for the above stated reasons.
VII.
Ineligibility of 24 Former Employees
Working at Other Airlines in Rulings Attachment I
VIA FACSIMILE (202) 692-5085
AND UPS
Mary L. Johnson
General Counsel
National Mediation Board
1301 K Street, N.W.
Suite 250 East
Washington, DC 20572
Re: NMB Case No. R-6998
American Airlines, Inc./TWU/AMFA
Dear Ms. Johnson:
Pursuant to Section 10.0 of the National Mediation Board’s (“NMB†or “Boardâ€) Representation Manual, the Aircraft Mechanics Fraternal Association (“AMFAâ€) hereby appeals the Investigator’s Rulings, dated June 16, 2004 (“Investigator’s Rulings†or “Rulingsâ€), in the above referenced representation dispute concerning the eligibility of the craft or class of Mechanics and Related Employees at American Airlines, Inc. (“American,†or “AA,†or Carrierâ€). See United Air Lines, Inc., 6 NMB 134 (1977). AMFA appeals the following Investigator’s Rulings of the NMB Investigator.
1. The ineligibility of 24 retired employees, Attachment B to Investigator’s Rulings;
2. The ineligibility of 20 employees, who have resigned, Attachment C to Investigator’s Rulings;
3. The ineligibility of 144 Fleet Service Clerks, Attachment E to Investigator’s Rulings;
4. The ineligibility of 89 former employees laid-off while on probation without any recall rights, Attachment F to Investigator’s Rulings (AMFA’s Exhibit E – Probationary Layoff –No Recall Rights), (AA’s Exhibit E – Employees laid off from probation);
5. The ineligibility of 4 Management Employees, Attachment G to Investigator’s Rulings;
6. The ineligibility of 1 Former TWA Employee Without an Employer-Employee Relationship With AA And Without Recall Rights, Attachment H to Investigator’s Rulings;
7. The ineligibility of 24 Former Employees Working At Other Airlines, Attachment I to Investigator’s Rulings;
8. The ineligibility of 25 Furloughed Employees Who Have Waived/Declined Recall, Attachment K to Investigator’s Rulings;
9. The ineligibility of 1 Employee Working Outside the Craft or Class, Attachment L to Investigator’s Rulings;
10. The ineligibility of 1 Terminated Employee, Attachment M to Investigator’s Rulings;
11. The ineligibility of 249 Fleet Service Fuelers, Attachment N to Investigator’s Rulings, (AMFA’s Exhibit M – Fleet Service Fueler), (AA’s Exhibit M – Fleet Service Clerk/Fuelers), (AA’s Addendum to Exhibit M, Fuelers);
12. The ineligibility of 366 Cleaners and 149 Janitors, (AMFA’s Schaible (2) Decl. and Schaible (3) Decl);
13. The ineligibility of 244 Miscellaneous Other Exclusions contained within Declarations accompanying AMFA’s April 22, 2004 Challenges and Objections, which were not considered in the Rulings,
a. The ineligibility of 10 additional retired employees not considered in the Rulings,
b. The ineligibility of 104 additional employees who have resigned not considered in the Rulings,
c. The ineligibility of 4 additional Fleet Service Clerks not considered in the Rulings,
d. The ineligibility of 6 additional former employees laid-off while on probation without any recall rights not considered in the Rulings,
e. The ineligibility of 5 additional management employees not considered in the Rulings,
f. The ineligibility of 21 additional Former TWA Employees Without an Employer-Employee Relationship With AA And Without Recall Rights not considered in the Rulings,
g. The ineligibility of 12 additional Former Employees Working At Other Airlines not considered in the Rulings,
h. The ineligibility of 3 additional Deceased Employees not considered in the Rulings,
i. The ineligibility of 65 additional Furloughed Employees Who Have Waived/Declined Recall not considered in the Rulings,
j. The ineligibility of 7 additional Terminated Employee not considered in the Rulings,
k. The ineligibility of 8 additional miscellaneous individuals ineligible for various reasons and not considered in the Rulings.
14. The ineligibility of 1,167 Cabin Cleaning and Lavatory Service Personnel, Attachment O to Investigator’s Rulings,
a. 15 duplicates not removed from Attachment O,
b. 2 additional duplicates not removed from Attachment O,
c. 28 names on eligibility list not removed from Attachment O,
d. 2 names removed from Attachment O but not removed from eligibility list,
e. Double counting of 14 individuals alleged to be Cabin Cleaning and Lavatory Service Personnel who have been counted as Fuelers,
f. 5 ineligible AA employees should not have been added to the AA eligibility list,
g. 1,167 Ineligible Fleet Service Clerks.
15. The ineligibility of 21 Former TWA Furloughees, Attachment P to Investigator’s Rulings;
16. The ineligibility of 46 Individuals from AMFA’s May 24, 2004 Submission, Exhibit “O†entitled “AA Eligibility List – TWA Exhibit D – Additional Info Acquired From,†not considered in the Rulings;
17. The ineligibility of 36 additional retired employees from Flagship News not considered in the Rulings;
18. The ineligibility of 150 additional TWA employees Not on TWU’ Exhibit D and therefore without contractual recall rights, not considered in the Rulings;
The Investigator’s Rulings is surprisingly sparse in its content and barely ten pages in length. The Investigator’s Rulings does not detail explicitly what evidence was considered among the voluminous submission of evidence in this dispute, especially by AMFA (easily 4,000 plus pages, excluding documentation submitted in the form of computer disks), other than to indicate the obvious prominence in the Investigator’s thinking of AA’s response to the challenges and objections posed, and to simply state that both the Transport Workers Union of America (“TWUâ€) and AMFA submitted challenges and objections and that American, TWU and AMFA responded to the Organizations’ challenges and objections. (Investigator’s Rulings, at 1-2). In the course of reviewing this appeal, AMFA asks this Board to keep in its mind the cursory nature of the Investigator’s Rulings and the virtually complete disregard of AMFA’s significant substantive evidence by the Investigator in formulating those Rulings. AMFA also asks this Board to keep in mind that this dispute involves a significant employee population at AA, the largest carrier in the world, and that there are a myriad number of issues implicated in this dispute as reflected in AMFA’s challenges and objections to the AA’s proposed Eligibility List as well as in the responses by all participants to the challenges and objections of AMFA and the TWU.
AMFA believes that an injustice is sought to be perpetrated against the Mechanics and Related Employees at American since the inception of this representation dispute by AA and the TWU. The injustice is to deny the Mechanics and Related Employees at American an election before the Board in this case by perpetrating the fraud of the absence of a showing of interest by means of an artificial inflation of the eligibility list by adding demonstrably ineligible voters and by failing to remove demonstrably ineligible voters. Both AA and the TWU have done their utmost to elevate the number of purported eligible voters to numbers that defy reason and Board precedent. Significantly, both AA and the TWU have made virtually no affirmative effort to engage in the process of removing ineligible voters from the eligibility list of their own volition. Typically, a carrier and the incumbent union actively engage in the removal process of ineligible voters at the NMB, which together with challenges and objections of the applicant facilitates a fair accounting of exactly who is or is not an eligible voter. In the instant case, the failure of AA and the TWU to remove enormous quantities of ineligible voters is intended to sabotage the fair accounting process of determining eligible voters by not removing ineligible voters in order to prevent an NMB election through fraudulent means.
Unfortunately, the Board’s Investigator who serves as the initial gatekeeper to prevent this kind of injustice and fraud, through many of the Investigator’s Rulings, either intentionally or through extreme carelessness in not caring to review, or by ignoring AMFA’s significant and substantial evidence, unfortunately perpetuates the fabrication that the eligible number of voters in this dispute is as many as 18,661 (Investigator’s Rulings at 10) (or more, 18,708 according to AA). (AA’s response to challenges and objections, dated May 24, 2004, at p. 2 and 11). AMFA appeals to this Board to rectify and overrule the numerous and substantial errors within the Investigator’s Rulings as set forth herein and thereby uphold not only the rights of the Mechanics and Related Employees at American under the Railway Labor Act but also the reputation and integrity of the Board.
AA’s Lack of Substantive Evidence
As is readily apparent in the Investigator’s Rulings, there is so much deference afforded by the Investigator to the AA submission responding to the challenges and objections by AMFA and the TWU, and the absence from consideration of AMFA’s evidence so pronounced, that the Investigator’s Rulings amount to almost a complete rubber stamping of AA’s responses to the challenges and objections. In doing so and in failing to consider AMFA’s evidence as contained in the Declarations submitted by AMFA, the Investigator breached her duty to review the evidence of all participants objectively and fairly and thereby committed numerous appealable errors.
AMFA would like to initially comment on AA’s proof in AA’s response to AMFA’s Challenges and Objections, dated May 24, 2004. James B. Weel, Managing Director of Employee Relations at AA, states in his Verification, dated May 24, 2004, that he examined the statement of facts presented in the letter brief of AA’s counsel, Sheldon M. Kline, dated May 24, 2004, and in the exhibits attached thereto and to the best of his information, knowledge, and belief, they are true and correct. (AA Response to Challenges and Objections, dated May 24, 2004, Verification at 12). Mr. Weel also declares in his Verification that he was personally responsible for the verification and validation of the evidence presented herein in response to the specific challenges and objections filed by AMFA and TWU to the List of Potential Eligible Voter in this representation dispute. (AA Response to Challenges and Objections, dated May 24, 2004, Verification at 12). Much of AA’s proof is contained on schedules, which are not supported by Declarations from the individuals who performed the investigation into the facts, which presumably serve as the basis for the Investigator’s Rulings in most instances. Sadly, much of AA’s proof does nothing more than attempt to verify the data supplied by the TWU and does not engage in independent inquiry.
AMFA believes that AA has not upheld its evidentiary burden to the Board by merely having Mr. Weel verify the work of undisclosed anonymous others at AA who have personal knowledge of the facts investigated and contained in AA’s submission schedules but for whom AA did not submit any Declarations setting forth facts pertaining to their investigation of the facts for AA regarding AMFA’s challenges and objections to AA’s proposed eligibility list. These Schedules prepared by AA constitute AA’s Exhibits A through M, Addendum to Exhibit M, TWU Managers, TWU Attachment 1 and TWU Attachment 2 (collectively “AA Exhibitsâ€). The obvious advantage to AA in proceeding in this manner in utilizing anonymous individuals as the sources of hearsay information contained on AA’s schedules and Exhibits is to forego the use of declarations from these anonymous individuals who can remain nameless, faceless and without accountability. The reliability of such proof, absent supporting documentation, is compromised, and should not be accepted over reliable evidence from AMFA, which indicates a conclusion contrary to the unreliable AA proof. Accordingly, in many instances as set forth herein, AMFA’s proof should be accepted by the Board over that of AA, especially as it pertains to challenged hearsay on AA’s schedules and Exhibits and/or when AA fails to disprove AMFA’s evidence, and especially since AMFA’s evidence in many instances consists of AA’s own documentation.
In addition, the documentation provided by AA contained in the above referenced AA Exhibits consists in large part of certain AA documents mostly entitled “Employee History – View History.†Significantly, each document page entitled “Employee History – View History,†contains the following disclaimer in bold lettering within a bold rectangular outline as follows:
IMPORTANT: This employee History site was designed to provide historical employee information accrued through December 31, 1998 only. For information beginning January 1, 1999, please use SHARP.
The obvious evidentiary flaw of this AA substantive evidence is that its disclaimer effectively precludes its use in disproving AMFA’s proof since the evidence cannot be relied on from January 1, 1999 through the present.
Accordingly, AMFA’s evidence in the various categories appealed, should be accepted over that of AA’s evidence utilizing evidence with the noted disclaimer, especially when AMFA uses AA documentation with no such disclaimer.
I.
Ineligibility of 24 Retired Employees in Ruling Attachment B
The Investigator erred in denying the removal from the eligibility list of 24 Retired Employees.
Initially, AMFA notes that it was error for the Investigator not to direct the Carrier to account for the names of all American, TWA, LLC and TWA, Inc. retirees from the craft or class of Mechanics and Related Employees since 1990 based on American’s bad faith failure to remove hundreds of ineligible retired voters from its Eligibility List prior to submitting it to the Board. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 4). Such a search was sought by AMFA to compel AA to ascertain additional ineligible retirees that were likely on AA’s eligibility list, which AMFA was unable to discover. This was not an unreasonable request since by its own count, AA concedes to including 1,228 ineligible voters on its original proposed eligibility list. (AA’s response to challenges and objections).
Pursuant to Section 9.210 of the NMB Representation Manual, AMFA identified and challenged 269 former AA employees on the basis of retirement. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 3-4).
In support of AMFA’s challenge to the 269 identified retired employees, AMFA submitted accompanying Declarations from Terry Harvey, Donald L. Rodgers, Joe Triglia, Mitchell McCorkle, Thomas Anthony Hain, Allen Jones, Peter Mendelsohn, Russell T. Bowles, Mark D. Inman, Alan G. Jackson, Steve C. Goodchild, Stephan K. Schalo, James Eubanks and Joe Barry, and copies of American's Flagship News from June 2002 through February 2004, inclusive, as well as AA travel authorization information from Sabre View. Exhibit A contained all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to Retired Employees.
The Investigator’s Rulings state that “[t]he Carrier has provided documentation that 243 individuals should be removed from the List because they have retired as of the cut-off date. The list of 243 individuals who have retired and will be removed from the List pursuant to Manual Section 9.210 is located at Attachment B.†(emphasis in original)(Investigator’s Rulings, p.5, 1). The Investigator’s Rulings does not state why the other 26 individuals challenged by AMFA were not being removed from the List. The Investigator’s Ruling also does not state whether any AMFA documentation was reviewed or considered in her implicit ruling that 26 individuals would not be removed from the list.
The provided documentation presumably referred to by the Investigator was contained in Exhibit A to AA’s May 24, 2004 submission, which contained a 7 page schedule prepared by AA entitled “Exhibit A-Retired†and certain AA documents mostly entitled “Employee History – View History.†Significantly, each document page entitled “Employee History – View History,†contains the following disclaimer in bold lettering within a bold rectangular outline as follows:
IMPORTANT: This employee History site was designed to provide historical employee information accrued through December 31, 1998 only. For information beginning January 1, 1999, please use SHARP.
The obvious evidentiary flaw of this AA substantive evidence is that its disclaimer effectively precludes its use in disproving that 24 of the 26 individuals challenged by AMFA as retired are not actually retired since the evidence cannot be relied on from January 1, 1999 through the present.
Alternatively, in the absence of substantive evidence from AA sufficient to disprove the substantive evidence submitted by AMFA demonstrating that the 24 individuals are ineligible retired individuals, the Board should accept AMFA’s proof (which consists of AA documentation) over AA’s insufficient proof and deem as ineligible the remaining 24 retired individuals challenged by AMFA as explained below.
Significantly, AA disagreed with AMFA only as to 26 of the 269 retired individuals challenged by AMFA (less than 10%). The AA Employee History – View History documentation provided by AA and attached by the Investigator to her Rulings is only for these 26 individuals. The Investigator does not expressly reference this AA documentation as a basis for her ruling to erroneously retain these 24 retired individuals on the Eligibility List. In any event, the disclaimer on the documentation provided by AA renders its documentation containing it less reliable that the evidence submitted by AMFA, which is AA documentation with no such disclaimer.
The Investigator’s ruling is wrong because the substantive evidence provided by AMFA for 24 of these 26 individuals with its Challenges and Objections proves these individuals are retired and AA’s evidence does not disprove that they are retired or otherwise eligible.
AMFA’s proof regarding the ineligibility of the 24 retired individuals are set forth below beginning with an alternative reason for the ineligibility of the first person noted based upon the assertion on AA’s schedule.
The first of these 24 ineligible individuals is ALJIBOORI, ROSA B., eligibility list number (hereinafter “EL#â€) 247, which AMFA reported as retired from TWA. (Harvey Declaration, dated April 22, 2004, Exhibit A). The Investigator’s Rulings Attachment B adopted AA’s conclusion to retain this employee because she was recalled on 4/3/02. However, the proposed eligibility list is supposed to be limited to all individuals with an employee-employer relationship as of the last day of the payroll period prior to March 12, 2004. (NMB General Counsel Johnson’s letter, dated March 15, 2004, at 2, emphasis in original).
Accordingly, since this challenged individual does not satisfy this NMB requirement, the Investigator’s Ruling was erroneous and this individual (ALJIBOORI, ROSA B., EL#247) should be deemed ineligible and should be removed from the eligibility list by the Board.
To the extent that the Investigator accepted the proof of the Company as a basis that AMFA had the wrong employee numbers for the following individuals and presumably AMFA’s AA documentation was for different individuals with the same name, the evidence submitted by AA did not disprove that the following individuals were not retired, or were the incorrect individuals.
AVERY, RONALD, EL#662
BAIRD, DAVID, EL#761
BROWN, RICHARD T., EL#2101
BUNERO, JR., JOSEPH J., EL#2265
CARLILE, JON D., EL#2668
CRAWFORD, JAMES K., EL#3668
DUNCAN, THOMAS S, EL#4769
EDWARDS, BILLY S., EL#4916
FITZPATRICK, ROBERT D., EL#5479
FORD, JAMES D.,EL#5582
GRAY, B J, EL#6532
JOHNSON, ALBERT T., EL#8445
LANG, JAMES R., EL#9513
PALMER, DONALD W., EL#12693
SHEPPARD, GEORGE, EL#15332
WLLIAMS, GERALD D., EL#18077
ZINK, ROBERT A.,EL#18668
In fact, there is no social security number on the evidence submitted by AA to demonstrate that the evidence it submitted is evidence pertaining to the correct individuals as reflected on the eligibility list and therefore that AMFA’s evidence is not for the correct individuals. Furthermore, AMFA has submitted Declarations, which demonstrate that the eligibility list contains errors regarding the last four digits of social security numbers for listed individuals. See for example the Declarations of Gary S. Schaible (4), dated April 21, 2004 and Ned V. Grabowski, dated April 21, 2004.
Accordingly, because AA’s evidence does not disprove AMFA’s evidence of retirement for these 17 individuals, the above 17 individuals, should be deemed ineligible and should be removed from the eligibility list by the Board.
The following individual discussion concerns the remaining 6 retired individuals.
BROWN, WILLARD D., EL#2126 - There was no documentation submitted by AA to disprove AMFA’s proof that this individual is not an AMR retiree as stated on AA’s own travel documentation submitted by AMFA. AA’s statement on its “Exhibit A-Retired†that this individual retired on 3/30/04 is unsupported by any substantive evidence because no substantive evidence was provided by AA to disprove AMFA’s evidence for this individual. It was incumbent upon AA to provide documentation in support of its assertion, which it failed to substantiate. Accordingly, BROWN, WILLARD D., EL#2126, should be deemed ineligible and should be removed from the eligibility list by the Board.
BURLILE, JERRY L., EL#2323 – There was no documentation submitted by AA to disprove AMFA’s proof that this individual is not an AMR retiree as stated on AA’s own travel documentation submitted by AMFA. AA’s statement on its “Exhibit A-Retired†that this individual retired on 3/26/04 is unsupported by any substantive evidence because no substantive evidence was provided by AA to disprove AMFA’s evidence for this individual. It was incumbent upon AA to provide documentation in support of its assertion, which it failed to substantiate. Accordingly, BURLILE, JERRY L., EL#2323, should be deemed ineligible and should be removed from the eligibility list by the Board.
COUNTS, JR. HARVEY A., EL#3598 - AA’s documentation does not disprove AMFA’s proof that this individual is an AMR retiree as stated on AA’s own travel documentation as challenged by AMFA. AA’s statement on its “Exhibit A-Retired†that this individual was “Layoff from OSM AA 6/13/03 – has recall rights –error in travel info – now corrected†is unsupported by either declaration or documentary evidence provided by AA and therefore does not disprove AMFA’s evidence for this individual. Accordingly, COUNTS, JR. HARVEY A., EL#3598, should be deemed ineligible and should be removed from the eligibility list by the Board.
HORTON, R H, EL#7876 - There was no documentation submitted by AA to disprove AMFA’s proof that this individual is not an AMR retiree as stated on AA’s own travel documentation submitted by AMFA. AA’s statement on its “Exhibit A-Retired†that this individual was recalled on 1/22/04 is unsupported by any substantive evidence. It was incumbent upon AA to provide documentation in support of its assertion, which it failed to substantiate. Accordingly, HORTON, R H, EL#7876, should be deemed ineligible and should be removed from the eligibility list by the Board.
MORGAN, D L, EL#11707 - AA’s documentation does not disprove AMFA proof that this individual is an AMR retiree as stated on AA’s own travel documentation. AA’s statement on its “Exhibit A-Retired†that this individual retired on 4/30/04 is unsupported by any substantive evidence because no substantive evidence was provided by AA to disprove AMFA’s evidence for this individual. Accordingly, MORGAN, D L, EL#11707, should be deemed ineligible and should be removed from the eligibility list by the Board.
WLLIAMS, ANNIE L., EL#18046 - AA’s documentation does not disprove AMFA proof that this individual is an AMR retiree as stated on AA’s own travel documentation. AA’s statement on its “Exhibit A-Retired†that this individual retired on 4/1/04 is unsupported by any substantive evidence because no substantive evidence was provided by AA to disprove AMFA’s evidence for this individual. Accordingly, WLLIAMS, ANNIE L., EL#18046, should be deemed ineligible and should be removed from the eligibility list by the Board.
Accordingly, the Investigator’s Rulings erroneously retained 24 ineligible individuals presumptively proven by AMFA to be individuals who are ineligible because they have retired and because AA did not prove their eligibility in its May 24, 2004 submission. Therefore, the Board should overrule the Investigator’s Ruling and remove these 24 individuals from the Eligibility List for the above stated reasons.
II.
Ineligibility of 20 Employees Who Have Resigned in Ruling Attachment C
The Investigator erred in denying the removal from the eligibility list of 20 employees who have resigned.
Pursuant to Section 9.2 of the NMB Representation Manual, AMFA identified and challenged 140 former employees as ineligible to vote in an NMB authorized election because they are not working regularly in the craft or class on and after the cut-off date due to their having resigned. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 4).
In support of AMFA’s challenges to the 140 identified employees who have resigned, AMFA submitted accompanying Declarations from Terry Harvey, Donald L. Rodgers, Joe Triglia, John Richter, Ben Lee, Mitchell McCorkle, Thomas Anthony Hain, Allen Jones, Daniel S. Knasick, Kenneth J. MacTiernan, Russ Dittmer, Richard Brandt, William Stewart, Peter Mendelsohn, Ned V. Grabowski, David W. Hedgpath, Derek N. Mills, Kirwin K. Scott, Perry W. Bruce, Russell T. Bowles, John C. Hanson, Mark D. Inman, Alan G. Jackson, Stephan K. Schalo, James Eubanks and Joe Barry. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 4).
In addition to the above referenced Declarations, documentation provided by AMFA in support of removal of these former employees who have resigned included “Furlough A people†in which employees had to resign in order to receive a $12,500 buyout from AA; AA Auto Time and Attendance Record (“AA Auto TAâ€) and resignations reflected on a blue disk provided and identified as “AA Recall List, Title I & II.†AMFA’s Exhibit B contained all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to Resigned Employees. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 4).
The Investigator’s Rulings states that “[t]he Carrier has provided documentation that 120 individuals should be removed from the List because they resigned as of the cut-off date. The list of the 120 individuals who resigned as of the cut-off date and will be removed from the List pursuant to Manual Section 9.2 is located at Attachment C.†(emphasis in original)(Investigator’s Rulings, p.5, 2). The Investigator’s Rulings does not state why the other 20 individuals challenged by AMFA were not being removed from the List. The Investigator’s Ruling also does not state whether any AMFA documentation was reviewed or considered in her implicit ruling that 20 individuals would not be removed from the list.
The provided documentation referred to by the Investigator was contained in Exhibit B to AA’s May 24, 2004 submission, which contained a 6 page schedule prepared by AA entitled “Exhibit B-Resigned†and certain documents mostly entitled “Employee History – View History.†Significantly, each document page entitled “Employee History – View History,†contains the disclaimer referred to earlier on page 5 of this brief, thereby effectively precluding the use of AA’s evidence from January 1, 1999 through the present.
The obvious evidentiary flaw of this AA substantive evidence is that its disclaimer effectively precludes its use in disproving that the 20 individuals challenged by AMFA as having resigned are not actually resigned since AA’s documentary evidence is unreliable after January 1, 1999.
Alternatively, in the absence of substantive evidence from AA sufficient to disprove the substantive evidence submitted by AMFA demonstrating that the 20 individuals are ineligible individuals who have resigned, or proof that the 20 individuals are eligible, the Board should accept AMFA’s proof (which consists of AA documentation) over that of AA’s insufficient hearsay proof on its “Exhibit B-Resigned†and deem as ineligible the remaining 20 individuals who have resigned.
The Investigator’s ruling is wrong because the substantive evidence provided by AMFA for these 20 individuals with its Challenges and Objections proves these individuals have resigned and AA’s evidence does not disprove that they have resigned, or prove their eligibility.
For example, the Declaration of John Richter, dated April 20, 2004, submitted by AMFA with its Challenges and Objections, states that BATISTA, JR. PEDRO A., EL#1048, resigned approximately in May 1994 and that BECKETT, LEONARD O., EL#1154, resigned and is currently working for another carrier, Atlas Air. The Declaration of Richard Brandt, dated April 2004, submitted by AMFA with its Challenges and Objections, states that ELLIS, GODFREY, EL#5000 resigned. ELLIS, GODFREY, EL#5000 is also listed on the Continental Seniority List, which AMFA provided on disk as evidence that Mr. Ellis is working for another carrier. The Declaration of Russ Dittmer, dated April 18, 2004, submitted by AMFA with its Challenges and Objections, states that JAFFE, NICHOLAS D., EL#8294 resigned. The Declaration of Daniel S. Knasick, dated April 20, 2004, submitted by AMFA with its Challenges and Objections, states that LAVACCA, FRANK C., EL#9604 resigned and has been working for UPS since then. AA, no doubt, did not consider the Richter, Brandt, Dittmer and Knasick Declarations and therefore neither did the Investigator in the Investigator’s Rulings. AA’s proof for these individuals does not disprove AMFA’s proof that these individuals resigned AA and that many are even working for other carriers.
Accordingly, because AA’s evidence for these 5 individuals does not disprove AMFA’s evidence of resignations and other reasons of ineligibility such as working for other carriers, the above 5 individuals, should be deemed ineligible and should be removed from the eligibility list by the Board.
To the extent that the Investigator accepted the proof of the Company as a basis that AMFA had the wrong employee numbers for the following individuals and presumably AMFA’s AA documentation was for different individuals with the same name, the evidence submitted by AA did not disprove that the following individuals did not resign, or were the incorrect individuals. In fact, there is no social security number on the evidence submitted by AA to demonstrate that the evidence it submitted is evidence pertaining to the correct individuals as reflected on the eligibility list and therefore that AMFA’s evidence is not for the correct individuals.
BUTLER, DAVID, EL#2408 (TERM 53 on his Auto TA translates to Resignation on page 2 of the AA Transaction Codes provided by AMFA with its Challenges and Objections) Apparently, AA in its challenges response erroneously used documentation from BUTLER, DAVID W., EL#2410, who is an eligible voter.
RAINBOLT, BRYAN K.,EL#13585 (TERM 52 on his Auto TA translates to Resignation on page 2 of the AA Transaction Codes provided by AMFA with its Challenges and Objections).
CIHAK, CHARLES, EL#3099 - AA’s documentation does not disprove AMFA’s proof that this individual has resigned as stated on the Title II RIF List disk as challenged by AMFA. AA’s statement on its “Exhibit B-Retired†that this individual was “LAYOFF 2/6/03 & Currently on TII Recall list –shows resigned, but is actually a decline for that city†is unsupported by either declaration or documentary evidence provided by AA and therefore does not disprove AMFA’s evidence for this individual. Accordingly, CIHAK, CHARLES, EL#3099, should be deemed ineligible and should be removed from the eligibility list by the Board.
HARRELL, JACOB, EL#7107; HARRISON, TROY, EL#7167; MODLIN, CHARLES, EL#11515; WILLIAMSON, EDDIE, EL#18150- AA’s documentation does not disprove AMFA’s proof that these individuals have resigned as reflected by TERM 53 on their Auto TA, which translates to Resignations on page 2 of the AA Transaction Codes provided by AMFA with its Challenges and Objections. In fact, AA confirms AMFA’s proof on “Exhibit B-Resigned,†yet still remarkably considers them eligible. AA’s statement on its “Exhibit B-Retired†that these individuals “RESIGNED WITH RECALL TO OTHER JOB,†(other job is unspecified) is unsupported by either declaration or documentary evidence provided by AA and therefore does not disprove AMFA’s evidence for this individual. Accordingly, HARRELL, JACOB, EL#7107, HARRISON, TROY, EL#7167, MODLIN, CHARLES, EL#11515 and WILLIAMSON, EDDIE, EL#18150, should be deemed ineligible and should be removed from the eligibility list by the Board.
The Board should not allow demonstrated evidence of a resignation to nonetheless serve as the basis for eligibility based on an alleged right to recall to an unspecified job. Such a rule would make a mockery of the Board’s eligibility rules.
WILLIAMS, MARC, EL#3099 - AA’s documentation does not disprove AMFA’s proof that this individual has resigned as stated on the Title I RIF List disk as challenged by AMFA. AA’s statement on its “Exhibit B-Retired†that this individual was “LAYOFF 10/19/01 with recall rights – no AMFA proof†is unsupported by either declaration or documentary evidence provided by AA and therefore does not disprove AMFA’s evidence for this individual. Accordingly, WILLIAMS, MARC, EL#3099, should be deemed ineligible and should be removed from the eligibility list by the Board.
Similarly, AA’s evidence as to the following individuals was insufficient to overcome AMFA’s proof for the following individuals:
GONZALEZ, EDGARDO L., EL#6353
HENDRICKS, JONATHAN D., EL#7412
KIAFFAS, NICHOLAS J., EL#8970
SAMSEN, MARC S., EL#14736 - Resigned $12,500 SEA
STOREY, DENNIS J., EL#16210
WIEMERS, JEFFREY A., EL#17985
Accordingly, the Investigator’s Rulings erroneously retained 20 ineligible individuals proven by AMFA to be individuals who have resigned and that AA did not disprove that they did not resign or otherwise prove their eligibility in its May 24, 2004 submission and therefore the Board should overrule the Investigator’s Ruling and remove these 20 individuals from the Eligibility List for the above stated reasons.
III.
Ineligibility of 144 Fleet Service Clerks in Ruling Attachment E
The Investigator erred in denying the removal from the eligibility list of 94 Fleet Service Clerks in Ruling Attachment E. The Investigator further erred in failing to consider or rule upon 48 additional Fleet Service Clerks contained on AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks†apparently because AA did not comment upon them.
The Board has found that the single craft or class of Airline Mechanics, Ground Service, Plant Maintenance, and Fleet Service Personnel is no longer a proper craft or class at either American or TWA-LLC. Instead, the proper crafts or classes are: Mechanics and Related Employees and Fleet Service Employees. American Airlines, Inc., 29 NMB 240, 251 (2002). The Board also found therein that American and TWA-LLC operate as a single transportation system for purposes of representation of the following crafts or classes: Mechanics and Related Employees; Fleet Service Employees; and Stock and Stores Employees, each of which has its own collective bargaining agreement with American. Id. at 253. It is Board policy to adhere to its previous craft or class determinations in the absence of any material change in circumstances. American Airlines, Inc., 21 NMB 60, 72 (1993). (AMFA’s Submission, dated May 24, 2004).
Accordingly, Board precedent establishes that the crafts or classes of Mechanics and Related Employees at American and Fleet Service Employees at American are two separate and distinct crafts or classes. (AMFA’s Submission, dated May 24, 2004).
Pursuant to Section 9.2 of the NMB Representation Manual, AMFA identified and challenged 363 Fleet Service employees as ineligible to vote in an NMB authorized election because they are not working regularly in the craft or class on and after the cut-off date. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6).
In support of AMFA’s challenges to the 363 Fleet Service employees, AMFA submitted accompanying Declarations from Terry Harvey and others. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6). Specifically, the 363 Fleet Service Employees identified by AMFA are employees, who do not belong to the craft or class of Mechanics and Related Employees, but belong to the craft or class of Fleet Service Employees. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6). The Fleet Service Employees have a separate CBA from the Mechanics and Related Employees and these two groups of employees are distinct and undisputed crafts or classes. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6).
In addition to the above referenced Declarations, documentation provided by AMFA in support of removal of these Fleet Service Employees from the Carrier’s Eligibility List include AA position detail documents, which set forth the correct title of these AA employees; and a Sabre View window for these Fleet Service Employees in which the last four digits of the social security numbers for the challenged individuals are confirmed. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6). AMFA’s Exhibit D contained all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to Fleet Service Clerk Employees not working in the Mechanics/Related craft or class. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 6).
The Investigator’s Rulings states that “[t]he Carrier has provided documentation that 221 individuals should be removed from the List because they have assumed positions in the Fleet Service craft or class. However, the carrier provided documentation that 94 former TWA LLC employees never assumed a position on American and were furloughed by TWA LLC. Because the craft or class from which they were furloughed was Mechanics and Related, and because they continue to have recall rights in that craft or class, they still enjoy an employee-employer relationship with American and have a reasonable expectation of returning to work. Therefore, these 94 employees remain eligible. The list of the 221 individuals who are working in positions within the craft or class of Fleet Service Employees and will be removed from the List pursuant to Manual Section 9.2 is located at Attachment E.†(emphasis in original)(Investigator’s Rulings, p.5-6, numbered 4). The Investigator’s Rulings does not state why the other 48 (363-221=142-94=48) individuals challenged by AMFA contained on AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks†were not being removed from the List. The Investigator’s Ruling also does not state whether any of AMFA’s documentation was reviewed or considered in her ruling that 142 individuals would not be removed from the list.
The provided documentation referred to by the Investigator was contained in Exhibit D to AA’s May 24, 2004 submission, which contained an 11 page schedule prepared by AA entitled “Exhibit D- Fleet Service†and certain documents mostly entitled “Employee History – View History.†Significantly, each document page entitled “Employee History – View History,†contains the disclaimer referred to earlier on page 5 of this brief, thereby effectively precluding the use of this AA’s evidence from January 1, 1999 through the present.
The obvious evidentiary flaw of this AA substantive evidence is that its disclaimer effectively precludes its use in disproving that the 94 individuals challenged by AMFA as Fleet Service Clerks are not actually Fleet Service Clerks or that their recall rights are to the Fleet Service craft or class and not to the Mechanics and Related Employees craft or class since AA’s documentary evidence cannot be relied on.
The Investigator and AA disagreed with AMFA only as to 144 of the 363 individuals who it is not contested are Fleet Service Clerks (Job Code 9400 on the AutoTA and described as “FLEET SVC CLK FT†on AA’s job codes provided by AMFA in documentation and computer disks to the Investigator as part of AMFA’s Challenges and Objections).
Initially we note that, there was no documentation submitted by AA to disprove AMFA’s proof (AMFA’s Exhibit D schedule, sequence number 179 and accompanying documentation) that LITTLE, FAITH, EL#9928 is not working in the Mechanics and Related craft or class and the Investigator adoption of AA’s conclusions resulted in this individual not being accounted for in the Rulings. Accordingly, LITTLE, FAITH, EL#9928, should be deemed ineligible and should be removed from the eligibility list by the Board.
In addition, AMFA submitted evidence (Position Details) on two individuals that were inadvertently omitted from AMFA’s Exhibit D due to a computer glitch. These two individuals are BRIGHT, KAREN, EL#1953 and VARGAS, ROBERTO, EL#17238, which show these individuals as active Crew Chiefs Fleet Service Clerks, thereby demonstrating that they are not working in the Mechanics and Related craft or class. There was no documentation submitted by AA to disprove AMFA’s proof (AA Position Details) that BRIGHT, KAREN, EL#1953 and VARGAS, ROBERTO, EL#17238, are not working in the Mechanics and Related craft or class and the Investigator adoption of AA’s conclusions for this category resulted in these individuals not being accounted for in the Rulings. Accordingly, BRIGHT, KAREN, EL#1953 and VARGAS, ROBERTO, EL#17238, should be deemed ineligible and should be removed from the eligibility list by the Board.
The Investigator’s ruling is further erroneous because the substantive evidence provided by AMFA for these 144 individuals with its Challenges and Objections proves these individuals are Fleet Service Clerks and therefore properly considered to be furloughed from the craft or class of Fleet Service Employees at American, a distinct and separate craft or class at American. (AMFA’s Challenges and Objections, Exhibit D). AA’s evidence does not prove that these individuals are furloughed from the craft or class of Mechanics and Related Employees. Therefore, AMFA’s contrary proof must be accepted in that these employees are presumed to belong to the craft or class of Fleet Service Employees to which Fleet Service Clerks belong.
In addition, AA’s May 24, 2004 response to AMFA’s Challenges and Objections does not reference AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks†except to presumptively mention (apparently without checking) that AMFA was only challenging 315 and not 363 of these individuals because AMFA allegedly had submitted duplicate entries, without of course referencing the nonexistent duplications. (AA’s response to Challenges and Objections, dated May 24, 2004, at 4). Consequently, AA did not submit any documentation to contest AMFA’s evidence for any of the 48 individuals listed on AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks.†Not having submitted evidence to the Investigator contesting the individuals challenged by AMFA in AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks,†accompanying AMFA’s April 22, 2004 Challenges and Objections, AA has lost the opportunity to do so on appeal. (NMB Representation Manual, §10.2).
Accordingly, the Investigator erred in blindly relying on AA’s erroneous analysis, which served as the basis for the implicit ruling not to consider AMFA’s evidence regarding the additional 48 ineligible Fleet Service Clerks.
In the absence of any evidence from AA contesting the 48 individuals on AMFA’s Exhibit D schedule entitled “Addendum 1 – Not in Craft/Class – Furloughed Fleet Service Clerks†to disprove the substantive evidence submitted by AMFA demonstrating that these 48 individuals are ineligible Fleet Service Clerks furloughed from the craft or class of Fleet Service Employees and not from the Mechanics and Related Employees craft or class, the Board should accept AMFA’s proof (which consists of AA documentation) over the absence of any AA evidence upon which the Investigator ruled in error and deem the 48 Fleet Service Clerks challenged by AMFA as ineligible.
Furthermore, AMFA’s evidence in the form of AA’s own documentation for 55 of the 94 challenged Fleet Service Clerks proves that they are active Fleet Service Clerks and therefore ineligible to vote. In fact, much of AA’s “Exhibit D – Fleet Service†schedule confirms the active status of many of the following ineligible Fleet Service Clerks.
Seq Num EE # LastName FirstName AMFA Documentation
1 76 683775 ADAMS KENNETH W Position Detail FSC Active
2 377 309555 ANDERSEN BRIAN J Position Detail FSC Active
3 436 480803 ANDRADE OSCAR Position Detail FSC Active
4 646 308249 AUSTIN SAMUEL D Position Detail FSC Active
5 805 320669 BALANTA MARIO Position Detail FSC Active
6 1043 537251 BATES GREGORY A Position Detail FSC Active
7 2620 673223 CAPADONA PETER P Position Detail FSC Active
8 2832 474783 CASTELLANOS KENDY Position Detail FSC Active
9 2890 673189 CELONA FRANCIS G Position Detail FSC Active
10 3151 577025 CLARK RANDY AutoTA FSC Active
11 3678 680337 CRAWFORD THEODORE Position Detail FSC Active
12 3863 141897 CZARNY ROBERT Position Detail FSC Active
13 3876 650418 DACOSTA ANTONIO Position Detail FSC Active
14 5358 673301 FERNANDEZ CESAR J Position Detail FSC Active
15 5535 630155 FLORES JR RAMON A Position Detail FSC Active
16 5575 310401 FONSECA JR PEDRO Position Detail FSC Active
17 6007 630314 GARRIDO JESUS Position Detail FSC Active
18 6133 514300 GERTH JR CHARLES Position Detail FSC Active
19 6314 684125 GOLGERT DALE W Position Detail FSC Active
20 6316 308571 GOLSTON ROBERT Position Detail FSC Active
21 6318 310463 GOMEZ ANDREW Position Detail FSC Active
22 6411 14035 GORALCZYK WilliAM Position Detail FSC Active
23 6574 589811 GREEN MERRITT E Position Detail FSC Active
24 8040 77957 HULL GERALD Position Detail FSC Active
25 8199 115490 IRVING T Position Detail FSC Active
26 8852 589970 KELLEY KEVIN Position Detail FSC Active
27 9136 630108 KLOEPPEL GARY A Position Detail FSC Active
28 9345 537433 KUBIEN LEE E Position Detail FSC Active
29 9451 370506 LALL RODNEY Position Detail FSC Active
30 9878 562792 LlMJOCO C Position Detail FSC Active
31 10898 567807 MCCUGH RAYMOND 0 Position Detail FSC Active
32 11002 684182 MCGUIRE JOSEPH J Position Detail FSC Active
33 11682 672599 MORANI JOSEPH A Position Detail FSC Active
34 12254 310437 NOLAN DAVID Position Detail FSC Active
35 12316 524207 NUNEZ DAVID Position Detail FSC Active
36 12791 609829 PASCUAL KENNETH AutoTA FSC Active
37 13075 90296 PETO CHRISTOPHER V Position Detail FSC Active
38 13182 683830 PIERRE JAMES Position Detail FSC Active
39 13395 684299 PRAKOP WILLIAM H Position Detail FSC Active
40 13411 672399 PREHN STEPHEN P Position Detail FSC Active
41 14314 673870 RODRIGUEZ JOSE L Position Detail FSC Active
42 14317 587417 RODRIGUEZ JOSEPH A Position Detail FSC Active
43 14330 650634 RODRIGUEZ ROSA AutoTA FSC Active
44 14340 672390 RODY WILLIAM G Position Detail FSC Active
45 14646 672546 RYANJR JOHN L Position Detail FSC Active
46 14670 500326 SAEED IMTENAN Position Detail FSC Active
47 15656 672911 SMITH FRANKLIN E Position Detail FSC Active
48 15703 141781 SMITH MICHAEL J AutoTA FSC Active
49 16699 583410 THOMASJR BLASE Position Detail FSC Active
50 17145 515034 VALEGA DEYDER B Position Detail FSC Active
51 17399 673616 VOLLERS PAUL R Position Detail FSC Active
52 18299 163361 WITHERBY JAMES Position Detail FSC Active
53 18354 486739 WONG JIMMY Position Detail FSC Active
54 18469 305737 WRIGHT TYRONE Position Detail FSC Active
55 18531 181159 YERO ISMAEL Position Detail FSC Active
Accordingly, the Investigator’s Rulings erroneously retained 144 ineligible individuals proven by AMFA to be individuals who are Fleet Service Clerks eligible to vote in the craft or class of Fleet Service Employees but not in the craft or class of Mechanics and Related Employees and that AA’s proof is nonexistent as to 48 of these individuals and insufficient as to the 94 others to overcome AMFA’s superior substantive proof and therefore the Board should overrule the Investigator’s Ruling and remove these 142 Fleet Service Clerks from the Eligibility List for the above stated reasons.
IV.
Ineligibility of 89 Former Employees Laid-Off
While On Probation Without Any Recall Rights
The Investigator erred in denying the removal from the eligibility list of 89 former employees laid off while on probation without any recall rights.
The Investigator’s Rulings borrowing from AA’s submission (AA’s response to Challenges, dated May 24, 2004, at 5) states that “American submitted evidence that 89 of the furloughed probationary employees have a reasonable expectation of returning to work. American furloughed 142 probationary Mechanics and Related Employees in the post 9/11 furlough. American began recalling employees in 2002 and since that time has reemployed approximately 75 furloughed probationary employees. Therefore, American has a demonstrated practice of recalling furloughed probationary employees. Two employees do not have a reasonable expectation of returning to work. These two individuals will be removed from the List. See Attachment F. (emphasis original) (Rulings at p. 6).
Article 16, Section (a) of the existing AA/TWU collective bargaining agreement for the Aviation Maintenance Technicians and Plant Maintenance Employees of American Airlines, Inc., effective April 15, 2003 provides as a condition precedent to employees who are laid off due to a reduction in force to continue to accrue seniority during layoff to have “completed his probation period.†(emphasis supplied). See copy of AA/TWU CBA, Art. 16, §(a), attached to Rodgers Decl., dated April 21, 2004;
(AMFA’s Challenges and Objections, dated April 22, 2004, p. 7).
The NMB’s Representation Manual provides that furloughed employees will be deemed eligible to vote only if “they retain an employee-employer relationship and have a reasonable expectation of returning to work.†(emphasis supplied)(Representation Manual § 9.204). Under the AA/TWU CBA, the 89 ineligible employees did not retain an employee-employer relationship after their layoff because they did not complete their probation and therefore they are ineligible to vote. In this case, American has included on the submitted eligibility list individuals who are allegedly on furlough but who have no seniority rights under the collective bargaining agreement. In view of this cessation of the employee-employer relationship with the Carrier, the employees who have not completed their probationary period prior to being laid off by American must be deemed ineligible. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7).
Accordingly, the Investigator erred in ruling the 89 former employees as eligible voters because the above AA/TWU CBA’s contractual language renders any demonstrated practice of rehiring by AA as irrelevant for purposes of establishing whether these former employees retain an employee-employer relationship with AA, which under the contract they clearly do not. Under the AA/TWU CBA, at most, all that these laid off employees who have not successfully completed their probation have, is a hope of being hired again by AA as a new employee.
AMFA’s Exhibit E to the Harvey Declaration contains the 89 former employees that should be removed from the Carrier’s Eligibility List because they are former employees who did not complete their probationary period prior to being laid off by American and therefore do not retain any recall rights to American. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7). Further Declarations in support of excluding these employees are those of Schaible, Cunningham, Rodgers, Guffanti, Dittmer, Bruce, Bowles, Inman and Jackson. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7).
Attached to AMFA’s Exhibit E were AA Sabre View documentation regarding the expiration of travel privileges for these former probationary employees. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7). In addition, these 89 employees are not contained on the February 2004 Title I Recall List provided to all participants on disk in this proceeding. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7). See blue disk marked as “AA Recall List, Title I & II,†thereby reflecting an absence of seniority or recall rights to American. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7). AMFA’s Exhibit E contains all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to the 89 former employees without recall rights because they were laid off before they completed their probation period with the Company. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 7).
Accordingly, the Investigator’s Rulings erroneously retained 89 ineligible individuals who did not complete their AA probation before they were laid-off and who do not have any seniority or recall rights to AA under the AA/TWU CBA and therefore do not retain an employee-employer relationship with AA. Therefore, the Board should overrule the Investigator’s Ruling and remove these 89 ineligible individuals from the Eligibility List for the above stated reasons.
V.
Ineligibility of 4 Management Employees in Ruling Attachment G
The Investigator erred in denying the removal from the eligibility list of 4 Management Employees.
Pursuant to Section 9.211 of the NMB Representation Manual, AMFA identified and challenged 80 Management Officials who are ineligible to vote. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 8).
In support of AMFA’s challenges to the 80 identified management employees, AMFA submitted Declarations from Terry Harvey and others. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 8).
AMFA’s Exhibit F contained all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to the Management Employees. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 8). Specifically, there is AA Position Details documentation, AA Sabre View documentation and Travel Authorization Documentation, which, respectively, links the AA personnel number to the management employee’s name to the social security number digits. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 8).
The Investigator’s Rulings states that “[t]here was substantial overlap in the TWU and AMFA list of employees challenged as Management Officials. Of the 80 individuals challenged as management officials, the Carrier produced evidence that five are working in the Mechanics and Related Employees craft or class. These five will remain on the List. The remaining 75 are Management Officials and their names will be removed from the List pursuant to Manual Section 9.211. See Attachment G.†(Investigator’s Rulings at p.6, numbered 6).
The Investigator’s Ruling is clearly wrong for at least two of the five individuals listed as eligible on Attachment G of the Investigator’s Rulings because they are not working in the Mechanics and Related craft or class according to the AA notes on AA’s Exhibit F – Management Employees. Specifically, the Rulings and AA seek to circumvent the clear dictates of Section 9.211 of the NMB Representation Manual that “[m]anagement officials are ineligible to vote,†for GRIFFIN, WENDYL W., EL#6646 and OLSON, JOHN M., EL#12478. In addition, Attachment G contradicts AA’s own statement that it “agrees with AMFA (and TWU) that individuals who are serving as members of management, notwithstanding the fact that they retain recall rights to the mechanics and related craft or class, should not be included on the List of Potential Eligible Voters.†(AA’s Response to Challenges and Objections, dated May 24, 2004, at p.5).
The Investigator’s Ruling is also wrong for the following other two individuals (BLANCK JR. BILLY L., EL#1546; GUERRERO, AUGUSTINE, EL#6726) listed as eligible on Attachment G of the Investigator’s Rulings because AA’s proof is insufficient to overcome AMFA’s proof of ineligibility based on the ground that these individuals are management employees.
The evidence that five are working in the Mechanics and Related craft or class referred to by the Investigator is contained in Exhibit F to AA’s May 24, 2004 submission, which contained a 3 page schedule prepared by AA entitled “Exhibit F-Management Employees†and certain documents mostly entitled “Employee History – View History.†Significantly, each document page entitled “Employee History – View History,†contains the disclaimer referred to earlier on page 5 of this brief, thereby effectively precluding the use of AA’s evidence from January 1, 1999 through the present.
The obvious evidentiary flaw of this AA substantive evidence is that its disclaimer effectively precludes its use in disproving that the 4 individuals challenged by AMFA on this appeal as being in management are not actually in management since AA’s documentary evidence cannot be relied on.
Conversely, AMFA’s evidence in the form of Position Details unequivocally affirms the management position for all 4 of the individuals appealed is that of “Job Code 1060 – SUPV ACF MTC DOT.†The Position Title for these 4 individuals are as follows:
BLANCK JR. BILLY L., EL#1546 – Supv Production;
GRIFFIN, WENDYL W., EL#6646 – Supv Continuous Improvement;
GUERRERO, AUGUSTINE, EL#6726 - Supv Inspection;
OLSON, JOHN M., EL#12478 - Supv Inspection.
Accordingly, the Investigator’s Rulings erroneously retained 4 ineligible individuals proven by AMFA to be individuals who are in management and that AA’s proof is insufficient to overcome AMFA’s proof and therefore the Board should overrule the Investigator’s Ruling and remove these 4 individuals from the Eligibility List for the above stated reasons.
VI.
Ineligibility of 1 Former TWA Employee Without an Employer-Employee Relationship with AA and Without Recall Rights in Rulings Attachment H
The Investigator erred in denying the removal from the eligibility list of 1 former TWA employee without an employer-employee relationship with AA and without recall rights.
Pursuant to Section 9.2 of the NMB Representation Manual, AMFA identified and challenged 279 employees as ineligible to vote in an NMB authorized election because they are not working regularly in the craft or class on and after the cut-off date. (AMFA’s Challenges and Objections, dated April 22, 2004, pp. 8-9).
In support of AMFA’s challenges to the 279 individuals, AMFA submitted accompanying Declarations from Terry Harvey and others. (AMFA’s Challenges and Objections, dated April 22, 2004, pp. 8-9).
AMFA’s Exhibit G contains all paper documentation, exclusive of any computer disks also provided, in support of AMFA’s Challenge to former TWA employees without an employee-employer relationship with the Carrier. The computer disk labeled “TWA Recall List Title I†does not contain the names of the challenged 279 former TWA employees. These employees are also not on the AMFA provided computer disk marked as “AA Recall List, Title I & II.†In addition, they are not on the computer disk labeled AA Sen. List 02, 03, 04. These individuals are also not even on the July 2001 TWA Seniority List, which is also part of Exhibit G. Finally, a Supplemental Q&A put out by the TWU on May 21, 2002, question 8, also part of Exhibit G, supports AMFA’s contention that these challenged individuals are ineligible to vote in the current representation dispute. (AMFA’s Challenges and Objections, dated April 22, 2004, p. 9).
The Investigator’s Rulings states that “AMFA challenged 279 individuals, stating that these are former TWA employees on furlough without American recall rights. American submitted evidence that seven of these individuals do have recall rights on American, or are currently working at American. These individuals will remain on the List. The remaining 272 Individuals will be removed from the List pursuant to Manual Section 9.204. The List of these employees is Attachment H. (Investigator’s Rulings at p. 6, numbered 7).
REITER, SHAD R., EL#13862 - There was no documentation submitted by AA to disprove AMFA’s proof that this individual is not Status Code T – Voluntary Termination Without Notice (see TREC-OJT status codes from the TREC user guide, attached to Hain Decl., dated May 21, 2004) as stated on AA’s TWA Employee OJT History documentation submitted by AMFA. AA’s statement on its “Exhibit G-TWA with no recall†that this individual was “Furloughed from A/C Avionics TWA & has recall rights†is unsupported by any substantive evidence because no substantive evidence was provided by AA to disprove AMFA’s evidence for this individual. It was incumbent upon AA to provide documentation in support of its assertion, which it failed to substantiate. Accordingly, REITER, SHAD R., EL#13862, should be deemed ineligible and should be removed from the eligibility list by the Board.
Accordingly, the Investigator’s Rulings erroneously retained 1 ineligible individuals proven by AMFA to be an individual who was a Voluntary Termination Without Notice (Status Code T ) and that AA’s proof is insufficient to overcome AMFA’s proof and therefore the Board should overrule the Investigator’s Ruling and remove this 1 individual from the Eligibility List for the above stated reasons.
VII.
Ineligibility of 24 Former Employees
Working at Other Airlines in Rulings Attachment I
