25 NMB No. 67
March 13, 1998
Mr. Jeffrey D. Wedekind
National Labor Relations Board
1099 14th Street, N.W.
Washington, D.C. 20570
Re: NMB File No. CJ-6616
NLRB Case No. 1-RC-20540
ABX Air, Inc. d/b/a Airborne Express
Dear Mr. Wedekind:
This responds to your June 25, 1997 request for the National Mediation Board's opinion regarding whether ABX Air, Inc. d/b/a Airborne Express (ABX) is subject to the Railway Labor Act. 45 U.S.C. § 151 et seq.
This case arose as a result of a representation petition filed by the Rhode Island Laborers' District Council A/W International Union of North America, AFL-CIO (Laborers) with the National Labor Relations Board (NLRB). In the petition, the Laborers seek to represent ABX's regular full-time and part-time sorters and casual employees, at its New England Hub in East Greenwich, Rhode Island. The NLRB held hearings on January 23, 24, 27, and 28, 1997 at which ABX took the position that it is subject to the Railway Labor Act. The Laborers asserted that ABX falls within the jurisdiction of the National Labor Relations Act.
The Board bases its opinion in this case upon the information provided by the NLRB, which includes the testimony and documentary evidence and arguments presented by ABX and the Laborers.
The Laborers assert that the employees at issue, ABX's sorters at its East Greenwich, Rhode Island facility (New England Hub),(1) are not subject to the Railway Labor Act. In support of their position, the Laborers assert that the sorter position at the New England Hub does not have any relationship with ABX's airline activities. According to the Laborers, all packages passing through the East Greenwich facility travel exclusively by land. The Laborers argue further that ABX's testimony in the hearing held before the NLRB regarding the percentage of packages that travel by air was "conflicted and contradictory" and, therefore, the logical conclusion is that "all packages sorted in East Greenwich come from and go back out to a 'station' . . . by a third party truck." Therefore, according to the Laborers, the sorters do not perform work traditionally performed by employees in the airline industry.
The Laborers distinguish this case from the Board's opinion in Federal Express Corp., 23 NMB 32 (1995), by asserting that the proper test is that the entity "must first demonstrate that its employees bear more than a tenuous, negligible and remote relationship to the carrier activities of an employer" for Railway Labor Act jurisdiction. The Laborers cite the NLRB's application of this test in United Parcel Service of Ohio and Daniel P. Kane, 321 NLRB No. 44 (1996).
ABX asserts that it is an air carrier subject to the Railway Labor Act and that all of its employees perform work involving the transportation of freight by air. Specifically, ABX asserts that its sorters perform work directly related to its business of sorting and transporting freight by air. ABX asserts that sorters at all of its locations "play a pivotal role" in its operations. ABX asserts that, as its employees, the sorters at the New England Hub are subject to the Railway Labor Act regardless of whether they perform "traditional airline work." ABX also argues that inquiry into the percentage of packages flow by air does not apply to common carriers by air such as ABX. ABX notes that the sorters at the New England Hub and throughout its system are subject to its centralized administration and operations.
ABX describes itself as a nationwide "all-cargo express airline." ABX holds a Part 121 certificate from the Federal Aviation Administration and operates a fleet of over 100 DC-9, DC-8 and YS-11 aircraft. ABX also performs charter air freight service for the U.S. Postal Service.
ABX was created in 1980 when Airborne Freight Corporation (AFC) formed a separate corporation and then merged with Midwest Air Charter, a freight airline. The airline became a wholly owned subsidiary of AFC, called Airborne Express, Inc. In 1989, Airborne Express, Inc. was renamed ABX Air, Inc. ABX's sole client is AFC.
ABX began operations with a single hub at its airport in Wilmington, Ohio. Its operations have expanded to include ten regional hubs, including the New England Hub located in East Greenwich, Rhode Island. The New England Hub serves Massachusetts, Rhode Island, New York, New Jersey, and Connecticut.
The largest sorting facility is located at the airport at the Wilmington Hub. At hubs other than the Wilmington Hub, most sort facilities are located a few miles from the airport. In addition to Wilmington, Ohio, the sorting facility at Waco, Texas is located at the airport. The remaining sort facilities are located near airports in Allentown, Pennsylvania; Roanoke, Virginia; Orlando, Florida; Atlanta, Georgia; Memphis, Tennessee; South Bend, Indiana; Columbia, Missouri; Fresno, California; and East Greenwich, Rhode Island. The East Greenwich facility is approximately five miles from the Providence Airport.
AFC couriers pick up packages from Airborne Express clients and curbside boxes throughout the United States. These packages, along with all other unsorted freight, are transported to ABX sorting facilities, including the New England Hub in East Greenwich, Rhode Island. ABX then transports the packages to their destination cities by air, or via a third party trucking company, where they are turned over to AFC for delivery to the addressee. At present, most packages shipped by ABX are transported between approximately 250 cities by air. The remainder are sent via third party trucking companies to destinations that are within a 250 mile radius of the sorting facility.
The New England Hub handles about 75,000 pounds of freight daily. Overall, ABX handles approximately five million pounds of freight per day. Between 70 and 80 percent of that freight is overnight delivery. The remainder is sent via two or three day delivery.
According to ABX's Senior Vice President of Ground Operations, Thomas Poynter, operations at each sorting facility are timed to revolve around the operations at the Wilmington Hub. Packages sorted at the New England Hub are either sent to the Wilmington Hub from the Providence Airport, or are trucked to destinations within a 250 mile radius. Some packages are trucked to Logan Airport in Boston.
One aircraft services the New England Hub each night. That aircraft delivers freight from the New England Hub and collects freight for two or three day delivery outside of a 250 mile radius of the New England Hub. At hubs like the New England Hub, containers are loaded on to a truck and taken to the sorting facility.
Sorters unload freight from containers, separate it according to destination codes, and then reload the freight into containers based upon the destination. Certain containers used by ABX, called "C" containers for their distinctive shape, are designed to fit into the cabin of ABX's DC-8 and DC-9 aircraft.(2) After containers are filled, they are weighed, then loaded back on to the aircraft in a configuration which is dependent upon weight. Sorters are also trained and certified to operate forklifts to move containers within the sorting facility. Sorters in Wilmington perform the same sorting work as sorters at the regional hubs.
Testimony indicated that at the New England Hub, on any one shift, a sorter can help the truck driver unload the truck, work as a feeder, take packages off the feeder lines to place in bins, and after the bins are full, bring them back to the trucks. The third party truck drivers unload trucks, wait until the freight is sorted, then reload trucks. They occasionally record weights.
Four sorters at the New England Hub have received ABX's FAA certified training to perform ramp operations for the nightly aircraft. In Wilmington, ABX employs ramp workers or ramp loaders, but at the hubs, there is not enough ramp work for a separate position and the sorters perform ramp work.
Sorters who work at the Providence Airport are trained and certified to perform load planning tasks. At all facilities other than Wilmington, ABX sorters perform load planning tasks. ABX employs individuals who work solely as load planners at Wilmington. At the New England Hub, the four sorters who work at the airport are trained and certified to work as load planners. Initial load planner training is conducted in Wilmington. Recurrent training every six months is usually conducted at the station by ground trainers from Wilmington.
At some locations, sorters may be responsible for "push back" of the aircraft. "Push back" involves hooking a tug to the aircraft so that the tug pushes the aircraft back into position so it can taxi out to the runway. Typically, during "push back," sorters are in radio contact with the cockpit crew. Sorters also marshal aircraft by using wands to direct the pilot to a parking position.
Overnight freight that is destined for a location outside of a 250 mile radius of the hub is sorted in Wilmington, not at the New England Hub, according to Poynter. Freight which is to be delivered in two or three days is sorted at the New England Hub at night, then sent via aircraft to Wilmington in the morning. Freight which is coming to the New England area will be off-loaded from the aircraft by ABX employees and taken to the East Greenwich sorting facility, where it will be sorted for delivery within a 250 mile radius of the hub. When sorters at the New England Hub sort freight, they need to examine only the three letter code signifying the destination of each package. They do not need to determine whether the package is traveling by truck within a 250 mile radius, or whether it is a second or third day delivery package which is passing through the Hub to or from Wilmington.
Most sorters at the New England Hub have not pushed back planes or worked at the airport. However, a few sorters volunteer to work at the Providence Airport and also sort freight at the East Greenwich sorting facility. At East Greenwich, AFC employees off-load freight from the aircraft at the Providence Airport. According to Poynter, freight is sorted at the East Greenwich facility, trucked to the airport by third party truckers, and loaded onto the aircraft by ABX sorters. There are no designations on the packages which would indicate whether the package would travel exclusively by truck or would also travel by air.
According to Robert Gray, ABX's Director of Operational Safety and Planning, approximately 70 percent of packages which pass through the Greenwich sort facility travel by air. According to ABX's Chief Executive Officer, Joseph Hete, approximately 65 to 70 percent of freight travels by air.
According to Hete, because ABX is an integrated operation, a sorter working at a hub, including the New England Hub, would not know whether a package came in by air or by truck and would not know whether the package would continue to its destination by air or by truck. Hete testified that there is "no separate workforce that only works freight that comes in by air."
ABX's facilities planning, payroll, accounting, and labor relations are centralized at its corporate headquarters in Wilmington, Ohio. According to Hete, scheduling is centralized because it revolves around the operations in Wilmington. In other words, the schedule for the New England Hub's operations is set in Wilmington, but the scheduling of individual employees working at the New England Hub is done locally.
According to Debra Loveless, ABX's Director of Employee Relations, all human resources policy decisions are made in Wilmington. For example, if a regional manager determined that he needed to hire additional sorters, he could not do so without approval and funding from Wilmington. Personnel files are maintained in Wilmington. Paychecks are cut in Wilmington and sent to regional managers who distribute the checks. Hourly rates, salaries and benefits are standardized throughout the ABX system. While some discipline, such as a written warning, may be determined and administered locally, suspensions and discharges must be approved by ABX's human resources department.
Sorters at the New England Hub work under the same work rules as sorters throughout the ABX system. Individual work schedules are set locally, but rules, such as attendance, are set for the entire system. ABX's Human Resources department in Wilmington reviews all disciplinary action to ensure consistency throughout the system. Pay and benefits are set on a system-wide basis.
ABX's New England Hub also receives additional administrative and physical support from corporate headquarters in Wilmington. System-wide job opportunities are posted at each station, including the New England Hub. When sorters are trained to handle hazardous materials, they travel to Wilmington for training. When ABX's sorting equipment needs maintenance, equipment maintenance mechanics who cover the region travel to East Greenwich to repair or maintain the equipment.
The National Mediation Board has exercised jurisdiction over ABX as a common carrier by air in numerous published determinations. ABX Air, Inc., 22 NMB 131 (1995); Airborne Express, Inc., 19 NMB 137 (1992); Airborne Express, Inc., 9 NMB 115, 116 (1981); and Airborne Express, Inc., 9 NMB 63 (1981). In Airborne Express, Inc., 9 NMB 115, the Board asserted jurisdiction over the craft or class of Fleet Service Employees employed by the company, then known as Airborne Express. In that determination, the Board expressly included sorters within the craft or class of Fleet Service Employees. Airborne Express, Inc., 9 NMB at 122. The record developed in this proceeding does not provide clear and convincing evidence to support a different result.
Section 181, which extended the Railway Labor Act's coverage to air carriers, provides:
All of the provisions of subchapter 1 of this chapter except section 153 of this title are extended to and shall cover every common carrier by air engaged in interstate or foreign commerce, and every carrier by air transporting mail for or under contract with the United States Government, and every air pilot or other person who performs any work as an employee or subordinate official of such carrier or carriers, subject to its or their continuing authority to supervise and direct the manner of rendition of his service.
45 U.S.C. §181 (emphasis added).
In 1981, the Board described ABX as "an all cargo, overnight express airline, guaranteeing to its customers next day delivery of its packages." Airborne Express, Inc., 9 NMB at 117. Based upon the record in this case, the Board's description of ABX applies today. As such, it is a carrier subject to the Railway Labor Act.
ABX owns and operates aircraft pursuant to Part 121 of the Federal Aviation Authority's regulations. ABX transports packages, primarily for overnight delivery for AFC, which, in turn, markets its delivery service to the public. ABX also transports mail for the U.S. Postal Service. ABX is a common carrier by air.
The Laborers argue that the work performed by the sorters at the New England Hub is unrelated to ABX's airline activities. The Laborers contend that the sorters do not work at an airport or near aircraft, and, therefore, should not be subject to the Railway Labor Act.
As the Board held in Federal Express Corporation, 23 NMB 32, 71 (1995), "the Railway Labor Act does not limit its coverage to air carrier employees who fly and maintain aircraft." The Board noted that the Act's "coverage extends to virtually all employees engaged in performing a service for the carrier so that the carrier may transport passengers or freight."(3)
Section 181 of the Act provides that every employee of an airline is subject to the Act, so long as the employee is subject to the airline's "continuing authority to supervise and direct the manner of rendition of his service." The record in this case demonstrates that ABX employs, compensates and sets the terms and conditions of employment for all of its employees on a system-wide basis, including the sorters at the New England Hub.(4) ABX managers set the schedule for and supervise the sorters at the New England Hub.
The Laborers also assert that ABX has not proved that its sorters at the New England Hub have "more than a tenuous, negligible and remote relationship" to ABX's activities as a carrier. This argument is derived from a test known as the "integrally related" test used to determine whether trucking operations are covered by Section 151, First of the Railway Labor Act. 45 U.S.C. § 151, First. Accordingly, the "integrally related" test, as used by the Board, the courts, and the National Labor Relations Board, does not apply under the facts of this case. Pan American World Airways v. Carpenters, 324 F.2d 217, 54 LRRM 2487, 2488 (9th Cir. 1963), cert. denied, 376 U.S. 964 (1964); Chicago Truck Drivers v. NLRB, 599 F.2d 816 (7th Cir. 1979); O/O Truck Sales, Inc., 21 NMB 258, 271 (1994); United Parcel Service of Ohio and Daniel P. Kane, 321 NLRB No. 44 (1996).(5) The "integrally related" test does not apply to employees of an air carrier. Federal Express Corp., 23 NMB at 74.
In this case, the Board considers only whether ABX and its employees, including the sorters at the New England Hub, are subject to the Railway Labor Act. The employees the Laborers seek to represent are sorters. They are not covered by the trucking exemption in Section 151, First. 45 U.S.C. § 151, First. Therefore, the standard proposed by the Laborers does not apply in this case.
Based upon the record in this case, and for the reasons discussed herein, the Board is of the opinion that ABX Air, Inc. d/b/a Airborne Express and its employees are subject to the Railway Labor Act. This decision may be cited as ABX Air, Inc. d/b/a Airborne Express, 25 NMB 67 (1998).
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Peter J. Petesch, Esq.
Richard A. Fairbrothers, Esq.
1. The New England Hub consists of a sorting facility in East Greenwich, Rhode Island. Aircraft which service the Hub fly to the Providence Airport about five miles away.
2. The design and repair of "C" containers require FAA approval.
3. Two courts have held that certain employees of a carrier who perform work unrelated to the airline industry are not covered by the Railway Labor Act. Pan American World Airways v. Carpenters, 324 F.2d 217, 54 LRRM 2487, 2488 (9th Cir. 1963), cert. denied, 376 U.S. 964 (1964) (RLA does not apply to Pan Am's "housekeeping" service at the Atomic Energy Commission's Nuclear Research Development); and Jackson v. Northwest Airlines, Inc., 185 F.2d 74, 77 (8th Cir. 1950) (RLA does not apply to Northwest's "modification center" where U.S. Army aircraft were reconfigured for military purposes). Work functions described in Carpenters as "substantially identical" to those before the Ninth Circuit were held by another court to be within the "compulsive" jurisdiction of the Railway Labor Act. Biswanger v. Boyd, 40 LRRM 2267 (D.D.C. 1957). The Board has not had the occasion to make a final determination regarding the appropriate application of this line of cases.
4. Terms and conditions of employment for certain employees are set by collective bargaining agreements.
5. In any event, the record in this case demonstrates that ABX's sorters sort freight based upon destination in order to permit the freight to be delivered. Sorting of freight is integrally related to the functions of an all cargo overnight express airline.