AO 2011-25: Inactive labor union members may be solicited by corporation's SSF

Atlas Worldwide, a holding company with a separate segregated fund (SSF), may solicit certain former pilots who serve in a management capacity with the company because they are part of Atlas Air's “executive or administrative personnel.” These individuals’ limited participation in a labor organization does not exclude them from the restricted class of the corporation’s SSF.

Background

Atlas Worldwide is a holding company whose primary business involves worldwide cargo flights operated through two subsidiary companies: Atlas Air and Polar Air. Atlas Worldwide operates an SSF to which employees may contribute. Atlas Air and Polar Air employ a number of senior managers who support their flight operations, including Chief Pilots and Directors of Training and Flight Operations Administration.

These managers, former pilots, are “inactive” members of the Airline Professional Pilots Association Teamsters Union Local 1224, and remain so for the limited purpose of retaining seniority rights should they wish to resume being pilots. They pay no union dues, have no voting rights, are not represented in collective bargaining negotiations, are not covered by the collective bargaining agreement, and may not participate in strikes. They do receive union newsletters and may attend local or national union meetings, but are not subject to union disciplinary procedures and are not solicited for contributions to the union's SSF.  They may also request union assistance with grievances against more senior managers.

Atlas Worldwide asks if the Chief Pilots and Directors of Training and Flight Operations Administration are “executive or administrative personnel” of Atlas Air and Polar Air and therefore constitute members of Atlas Worldwide's restricted class. If so, given that they may not serve as full members of the labor organization, Atlas Worldwide asks if it may solicit them for contributions to its SSF.

Analysis

Under the Federal Election Campaign Act (the Act) and Commission regulations, the Chief Pilots and Directors of Training and Flight Operations qualify as executive or administrative personnel. In determining which employees have “policymaking, managerial, professional, or supervisory responsibilities” (2 USC § 441b(b)(7)), the Fair Labor Standards Act (FLSA) and regulations issued under the FLSA, may serve as a guideline. 11 CFR 114.1(c)(4).

Chief Pilots and Directors of Training and Flight Operations Administration are salaried employees whose primary duties are directly related to the management or general business operations of Atlas Air and Polar Air in that they exercise significant responsibility in assisting with the management and operation of the business. Chief Pilots' duties involve personnel management, human resources, legal and regulatory compliance and quality control. The Directors of Training and Flight Operations Administration have responsibilities including budgeting, quality control, personnel management, human resources, labor relations, government relations, internet and database administration and legal and regulatory compliance. Under FLSA, “administrative employees” are salaried, their primary duties are “directly related to the management or general business operations of the employer” and they “exercise discretion and independent judgment on matters of significance.” 29 CFR 541.200 to 541.202. Based on these criteria, the Chief Pilots and the Directors of Training and Flight Operations Administration are part of the restricted class of Atlas Air and Polar Air, and may therefore be considered part of Atlas Worldwide's restricted class.

Commission regulations exclude from the restricted class any professionals who are represented by a labor organization.  Assuming that pilots would be considered professionals under the FLSA, the managers are not professionals because they do not currently act as pilots, but rather perform only managerial and administrative tasks. Even if they were professionals, however, the managers' participation in the union is predominantly confined to receiving literature and attending meetings. They do not pay dues, they may not vote for or serve as union officers, and they may not benefit from union representation in collective bargaining negotiations. They are not covered by the collective bargaining agreement, and they may not strike. Their ability to request union assistance in grievances against more senior managers does not outweigh these serious limitations on their union membership rights. Thus, their inactive and limited membership in a labor organization does not remove them from Atlas Worldwide's restricted class, and they may be solicited for contributions to the Atlas Worldwide PAC.

Resources:

• Advisory opinion 2011-25 [PDF; 8 pages]
• Commission open meeting of January 19, 2012
• Campaign Guide for Corporations and Labor Organizations [PDF; 134 pages]