Alanis Airport Services

National Labor Relations Board - Board Decisions

Apr 14, 1995

316 N.L.R.B. 1233 (N.L.R.B. 1995)

1233
316 NLRB No. 185
ALANIS AIRPORT SERVICES
1 The MAS shareholder baggage handlers have formed a new
local, Local 626, with the object of representing MAS’ employees.
MAS and Local 626 share office space at a building owned by the
Intervenor and two other IAM locals; they have been permitted to
use this space rent-free during their initial 6-month formative period.
The Intervenor’s president is a member of Local 626, and has indi-
cated that the Intervenor plans to assign the Employer’s unit employ-
ees to Local 626, should the Intervenor be selected as their bargain-
ing representative.
Alanis Airport Services, Inc. and Transport Work-
ers Union of America, Local 500, Petitioner.
Case 12–RC–7753
April 14, 1995
DECISION ON REVIEW AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On September 23, 1994, the Regional Director for
Region 12 issued a Decision and Direction of Election
in the above-entitled proceeding. She found that the
unit sought by the Petitioner, Transport Workers Union
of America, Local 500, and by the Intervenor, Inter-
national Association of Machinists and Aerospace
Workers, District Lodge 40, consisting of all full-time
and regular part-time passenger baggage handlers em-
ployed by the Employer, Alanis Airport Services, Inc.,
at Miami International Airport, is an appropriate unit.
She additionally found, however, that the Intervenor,
because of its involvement with a company that in-
tends to engage in competition with the Employer, has
a disqualifying conflict of interest and should be de-
nied intervenor status.
Thereafter, in accordance with Section 102.67 of the
Board’s Rules and Regulations, the Intervenor filed a
timely request for review of the Regional Director’s
decision, contending that the mere possibility that a
conflict of interest may arise in the future does not
present a clear and present danger of a current conflict
of interest, and that the evidence does not establish
that the Intervenor controls the company. On October
28, 1994, the Board granted the Intervenor’s request
for review. The election was held as scheduled on Oc-
tober 28, 1994, and the ballots were impounded pend-
ing the Board’s Decision on Review. No briefs on re-
view were filed.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the entire record in this
case with respect to the issue on review and has de-
cided to reverse the Regional Director’s conclusion
and to find that the Intervenor is not disqualified be-
cause of a conflict of interest.
The Employer, a Florida corporation, is engaged in
the business of providing passenger baggage handling
services at the Miami International Airport pursuant to
a contract with AMR Ground Services Corporation.
Operational and regulatory requirements at Miami
International Airport limit the number of companies el-
igible to provide various services, including baggage
handling, to seven holders of permits issued by the
Metro Dade Commission. Those permit holders can
then subcontract such work to other companies, such
as the Employer.
Several airlines, including United Airlines, are at-
tempting to persuade the Metro Dade Commission to
issue them general permits that would allow them to
hire directly and provide those services themselves.
Hearings have been held by the Metro Dade Commis-
sion on this matter, but no decision has been rendered.
United Airlines has a collective-bargaining agreement
with the International Association of Machinists and
Aerospace Workers (IAM). That contract requires that
any subcontracted work performed for United Airlines
must be done by an IAM-represented contractor.
Miami Airport Skycaps, Inc. (MAS) was formed with
the objective of securing United Airlines’ baggage
handling work for IAM members in the event that
United Airlines succeeds in obtaining a general permit
from the Metro Dade Commission. MAS has not ap-
plied to obtain its own permit to operate at Miami
International Airport.
MAS is owned by 55 shareholders, each of whom
owns 1 share of stock. Almost all shareholders are
baggage handlers who work for various companies at
the Miami International Airport, including the Em-
ployer. Two of the shareholders are officers of the In-
tervenor (president and secretary-treasurer) who also
serve on MAS’ five-person board of directors. Interve-
nor’s president was also one of the two incorporators
and serves as MAS’ registered agent. The articles of
incorporation of MAS provide that the corporation
may issue shares only to dues-paying members of the
IAM; that only one share may be issued to any indi-
vidual; and that any change in the corporation’s by-
laws, the election of directors to the board of directors,
and the appointment of officers requires a unanimous
vote of the common stock.1
The Board has long held that a union may not rep-
resent the employees of an employer if a conflict of
interest exists on the part of the union such that a
good-faith collective-bargaining relationship between
the union and the employer could be jeopardized.
Bausch & Lomb Optical Co., 108 NLRB 1555 (1954).
In order to find that a union has a disabling conflict
of interest, the Board requires a showing of a ‘‘clear
and present’’ danger interfering with the bargaining
process. The burden on the party seeking to prove this
conflict of interest is a heavy one. Garrison Nursing
Home, 293 NLRB 122 (1989), citing Quality Inn
Waikiki, 272 NLRB 1, 6 (1984), enfd. 783 F.2d 1444
(9th Cir. 1986).
1234 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The Employer did not appear or participate in the hearing but ad-
vised the hearing officer by telephone of its position. The hearing
officer incorporated the Employer’s statement into the record.
3 The Board majority noted in IFS Virgin Island Food Service that
it was questionable whether such a market, if established, would
compete with the business of the employer. We do not question in
this case whether MAS would compete with the Employer should it
obtain a permit which would allow it to do so. Nevertheless, not-
withstanding this distinction between the two cases, we think IFS
Virgin Island is sufficiently similar to the instant case to support a
finding that a clear and present danger of a conflict of interest does
not currently exist.
4 We find it unnecessary to pass on the Intervenor’s contention that
its involvement with MAS is too limited to warrant a conclusion that
the Intervenor controls or has a symbiotic relationship with MAS,
because in any event, for the reasons set forth above, there is no
showing that MAS is in competition with the Employer.
Contrary to the Regional Director, we find that the
Petitioner has not met its heavy burden to show that
the Intervenor’s involvement with MAS would pose a
clear and present danger of a conflict of interest inter-
fering with the collective-bargaining process, should
the Intervenor be selected as the bargaining representa-
tive of the Employer’s baggage handler employees em-
ployed at Miami International Airport. MAS currently
has no contracts to provide baggage handling services
and has not begun business operations at Miami Inter-
national Airport. Moreover, MAS has not even com-
pleted any application procedures to obtain its own
permit to operate at Miami International Airport. Even
if MAS were to apply for such a permit, it appears,
according to the Employer, that the Metro Dade Com-
mission may not be accepting proposals or granting
permits in this regard until 1999. For this reason, even
the Employer does not consider MAS a competitor.2 In
addition, the attempt on the part of United Airlines and
other airlines to obtain a general permit that would
allow them to hire directly and provide services them-
selves has not yet been and may never be successful.
Because United Airlines cannot yet provide such serv-
ices, it would be wholly speculative to conclude that
MAS, which was formed in order to perform baggage
handling services as United’s subcontractor, will ever
perform such services. Thus, a finding that the Interve-
nor has a disqualifying conflict of interest because of
its involvement with MAS would be premature.
We find this case to be similar to IFS Virgin Island
Food Service, 215 NLRB 174 (1974). In that case, the
Board majority found no disqualifying conflict of in-
terest where the petitioner’s goal of opening up a low
cost meat market allegedly in competition with the em-
ployer’s business had not yet materialized. In IFS Vir-
gin, a meat importer had offered to provide the peti-
tioner with meat to sell at a reduced price, but no fur-
ther steps had been taken to achieve this objective. As
in that case, MAS’ plans have not yet materialized and
thus there is an insufficient basis to conclude that
MAS is a direct competitor of the Employer.3
Nor is there any evidence that the Intervenor, if se-
lected as the Section 9 representative of the Employ-
er’s employees, would utilize that position to create in-
stability in the Employer’s labor relations and thereby
enhance the chances that United or MAS would obtain
the work.
In sum, there is insufficient evidence that MAS is
a competitor of the Employer or that the Intervenor
would misuse its Section 9 status as set forth above.
If there is a change of circumstance, in either respect,
a party may raise the issue at that time through appro-
priate procedures under the Act.
For the reasons stated above, we conclude that the
Intervenor’s involvement with MAS does not currently
constitute a clear and present danger of a conflict of
interest that would interfere with the bargaining proc-
ess.4 Accordingly, the Regional Director’s finding that
the Intervenor has a disqualifying conflict of interest is
reversed, the Intervenor is granted intervenor status in
the election and in further proceedings in this matter,
and the case is remanded to the Regional Director for
further appropriate action.
ORDER
It is ordered that the Regional Director’s finding that
the Intervenor has a disqualifying conflict of interest is
reversed, the Intervenor is granted intervenor status in
the election and in further proceedings in this matter,
and the case is remanded to the Regional Director for
further appropriate action.