27 NMB No. 43

February 23, 2000

Mr. John E. Higgins, Jr.

Solicitor

National Labor Relations Board

1099 14^th Street, NW.

Washington, DC 20570-0001

Re: NMB File No. CJ-6674

AVGR International Business, Inc.

d/b/a United Safeguard Agency

Dear Mr. Higgins:

This responds to your October 4, 1999, request for the National Mediation Board's (NMB) opinion as to whether AVGR International Business, Inc. d/b/a United Safeguard Agency (AVGR) and its employees are subject to the Railway Labor Act (RLA or Act), 45 U.S.C. §§ 151-188.

This opinion is based upon the National Labor Relations Board's (NLRB) letter, and the position statements and evidence submitted by AVGR and District 6, International Union of Industrial Service, Transport and Health Employees (IUISTHE).

For the reasons set forth below, the NMB finds that AVGR and its employees are subject to the RLA.

I. Issue Presented

Is the degree of control exercised by a carrier or carriers over AVGR sufficient to render AVGR subject to the Act?

II. Contentions

AVGR contends that it is subject to the RLA.

The IUISTHE contends that AVGR is not subject to the RLA because the airlines do not exert any significant degree of control over AVGR's operations.

III. Findings of Fact

AVGR provides skycap service at Miami International Airport (MIA). AVGR is a subcontractor of Dyn Air Services, Inc., Evergreen Eagle, and American Sales and Marketing Organizations (ASMO). The contractors hold general aeronautical permits from Miami-Dade County and contract directly with the air carriers.⁽¹⁾

AVGR provides its Skycaps with its own uniforms. The employees also are required to wear items provided by the carriers, such as tie clips. For example, Skycaps assigned to Continental wear picture identification cards which bear the carrier's name. AVGR Skycaps use these cards to access Continental's computers. Delta, Continental, and US Airways provide Skycaps with wheelchairs bearing the carrier's name. Skycaps who work curbside use podiums owned or leased by carriers, and are provided with podium keys. US Airways and Continental provide certain Skycaps with walkie-talkies.

AVGR's airport office space is subleased from Delta, at below market value. Skycaps also use Delta's general offices at MIA where AVGR stores equipment and documents, and use Delta's fax and copy machines without charge.

AVGR Skycaps also use carrier employee break rooms and are invited to carrier employee social functions.

Antonio Arner, AVGR's General Manager, testified in the NLRB hearing that the carriers train the Skycaps regarding curbside check-in procedures. The carriers also require Skycaps to comply with carrier dress codes. Carriers complain to AVGR managers about AVGR Skycaps who do not comply with carrier dress codes. The AVGR managers will, in turn, direct Skycaps to comply. AVGR's policy manual requires Skycaps to check with carrier employees for instructions. According to Arner's testimony, carrier employees direct the work of AVGR Skycaps.

Hiring and firing decisions are made by AVGR. However, according to Arner, carriers can effectively recommend Skycap reassignments. On occasion, carrier employees participate in disciplinary investigations of AVGR employees. Carrier employees also pose as passengers in order to evaluate AVGR Skycap services, and report their findings to AVGR. Delta requires that it has access to AVGR personnel files.

IV.

Board Jurisdictional Standards

Where the company at issue does not fly aircraft for the public transportation of freight or passengers, the National Mediation Board applies a two-part test in determining whether an employer and its employees are subject to the Railway Labor Act. Federal Express, 23 NMB 32 (1995). First, it determines whether the nature of the work performed is that traditionally performed by employees of rail or air carriers. Second, it determines whether the employer is directly or indirectly owned or controlled by, or under common control with, a carrier or carriers. Both parts of this test must be satisfied for the Board to assert jurisdiction.

Skycap and wheelchair attendant duties, including baggage handling, are functions traditionally performed by employees in the airline industry. Quality Aircraft Services, (QAS) 24 NMB 286 (1997); Service Master Aviation Services, 24 NMB 181 (1997); International Total Services, 20 NMB 537 (1993); Sky Valet, 18 NMB 482 (1991); Skycap, Inc., 13 NMB 292 (1986). Therefore, the first prong of the Board's jurisdictional test is satisfied.

V.

Carrier Control over AVGR

The record establishes that AVGR is controlled by carriers.

In examining control, the NMB focuses on, inter alia, the carriers' role in the entity's daily operations, and the entity's employees' performance of services for the carrier. LSG Sky Chefs, Inc., 27 NMB 55 (1999); Sky Valet, 22 NMB 230 (1995). The NMB also examines the carriers' role in employing and terminating employees, the degree to which the carriers supervise the entity's employees, the degree to which the employees are held out to the public as carrier employees, and the degree of carrier control over employees' training. SAPADO I (Dobbs International Services, Inc.), 18 NMB 525, 530 (1991).

In International Total Services, (ITS), 26 NMB 72 (1998), the carriers did not control hiring or firing employees. Nevertheless, the NMB found ITS subject to the RLA. There, the NMB found the carriers could request employee re-assignment and played a significant role in staffing and other working conditions. In QAS, supra, the NMB made a similar finding. In that case, as here, QAS did not contract directly with air carriers.

Substantial evidence in the record supports the finding of control by carriers. For example, while AVGR hires and fires its own employees, carriers can effectively recommend employee assignments and reassignments. Carriers effectively direct AVGR's Skycaps to do work. Carrier representatives may review training and personnel records of AVGR employees, and also occasionally train AVGR employees. On some occasions, carrier representatives interact directly with AVGR employees. AVGR employees frequently use carrier supplied equipment and follow carrier policies and procedures. AVGR's airport office space is subleased from Delta at below market rates. In sum, the degree of control exercised by air carriers over AVGR and its employees is sufficient to render the company subject to the RLA.

VI. Conclusion

Based upon the facts presented, the NMB concludes that AVGR is subject to the Railway Labor Act, as amended, 45 U.S.C. §§ 151-188. This opinion may be cited as 27 NMB 232 (2000).

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable
Chief of Staff

1. AVGR does not contract directly with air carriers. The record includes the contracts between AVGR and DynAir, Evergreen, and ASMO, which contract directly with the air carriers.

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