27 NMB No. 68
May 9, 2000
Mr. John E. Higgins, Jr., Solicitor
National Labor Relations Board
1099 14th Street, NW.
Washington, DC 20570-0001
Re: NMB File No. CJ-6664
NLRB Case No. 20-RC-17484
Dear Mr. Higgins:
This responds to your May 26, 1999, request for the National Mediation Board's (NMB) opinion regarding whether Milepost Industries South San Francisco Facility (Milepost SSFF) is subject to the Railway Labor Act (RLA), 45 U.S.C. §§ 151-181.
For the reasons discussed below, the NMB's opinion is that Milepost SSFF and its employees are subject to the RLA.
I. Procedural Background
This case arose as a result of a representation petition filed by Teamsters Automotive Employees and Allied Workers, Local 665, International Brotherhood of Teamsters, AFL-CIO (IBT), with the National Labor Relations Board (NLRB) on January 11, 1999. The IBT seeks to represent a bargaining unit of all full-time and regular part-time bus and van drivers employed by Milepost Industries at the employer's South San Francisco, California facility. Milepost SSFF provides airline crew transportation service between the San Francisco, Oakland, and San Jose airports and the crews' hotels to Alaska Airlines (Alaska), Delta Air Lines (Delta), Trans World Airlines (TWA), and United Airlines (United).
At the January 27, 1999, NLRB hearing on the IBT petition, Milepost SSFF and IBT stipulated as follows:
1) The Employer is a Nevada corporation with a place of business located at South San Francisco, California, that is engaged in providing contract transportation. The parties further stipulated that during the calendar year ending December 31, 1998, the Employer received revenue valued in excess of $50,000 from United Airlines for providing shuttle transportation for its aircraft crews.
2) The Petitioner is a labor organization within the meaning of the [National Labor Relations] Act.
3) Petitioner claims to represent the employees in the unit described in the petition but the Employer declines to recognize the Petitioner as the collective bargaining representative of those employees.
4) There is no collective bargaining agreement covering any of the employees in the unit sought in the petition herein, and the parties do not contend that there is any contract bar to this proceeding.
5) The following unit is an appropriate unit for collective bargaining purposes:
All full-time and regular part-time van and bus drivers employed by the Employer at its South San Francisco facility, excluding all other employees, office clerk employees, guards and supervisors as defined in the Act.
6) United Airlines is a common carrier under the Railway Labor Act.
(Memorandum from Robert H. Miller, Regional Director, Region 20, NLRB, dated February 12, 1999).
The NMB's opinion is based on the record of the NLRB hearing which includes the Milepost SSFF and IBT post-hearing submissions, Milepost SSFF and IBT position statements to the NMB, and a January 17, 2000, Milepost SSFF response to the NMB.
II. Contentions of the IBT
The IBT contends that Milepost SSFF and its South San Francisco operations are not subject to the RLA. In support of its contention, IBT cites D&T Limousine Co., Inc., 207 NLRB 121 (1973) (NMB declined jurisdiction over the employer which provided rail crew transportation services within the Collinwood (Cleveland), Ohio yard for Penn Central, exclusively).
The IBT contends that the NMB should use the non-carrier two-part test set forth in Ogden Aviation Services, 23 NMB 98 (1996). The IBT concedes that the transportation of crews is subject to the RLA. The IBT says the NMB needs to look at the second test: whether the employer is directly or indirectly owned or controlled by a carrier. An examination of the record here will reveal, IBT contends, that United does not exercise the requisite control over milepost SSFF to subject it to RLA jurisdiction.
III. Contentions of Milepost SSFF
Milepost SSFF contends that its work is of a nature traditionally performed by carriers in the airline industry and that United, Delta, Alaska, and TWA exercise a sufficient degree of control over it to render it subject to the RLA. Citing Evergreen Aviation Ground Logistics Enterprises, Inc., 25 NMB 460 (1998), Milepost SSFF agrees with IBT that the NMB's two-part test determines whether an employer is subject to the RLA.
Milepost SSFF asserts that the NMB has already decided that the RLA applies in nearly the exact same circumstances in Crew Transit, Inc., (CTI) 10 NMB 64 (1982). Milepost SSFF asserts that CTI establishes that flight crew transportation is a type of work which is integral to air transportation and clearly subject to the RLA. Therefore, Milepost SSFF says, the first part of the two-part test is met since, like CTI, its employees transport flight crews between airports and hotels exclusively for carriers.
Milepost SSFF says it meets the "control" part of the test as well because United exercises significant control over Milepost SSFF and its employees. Milepost SSFF asserts that United directs when, where, and in what manner Milepost SSFF will provide its services. Milepost SSFF argues that the IBT's reliance on Ogden "is entirely without merit."
A. Applicable Legal Standard
Section 181, which extends the Railway Labor Act's coverage to air carriers, provides:
All of the provisions of subchapter I 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).
When an employer does not fly aircraft for the transportation of freight or passengers, the NMB applies a two-part test in determining whether an employer and its employees are subject to the RLA. Federal Express, 23 NMB 32 (1995).
First, the NMB determines whether the nature of the work is that traditionally performed by employees of rail or air carriers -- the "function" test.
Second, the NMB determines whether the employer is directly or indirectly owned or controlled by or under common control with a carrier or carriers -- the "control" test. Both parts of the test must be satisfied for the NMB to assert jurisdiction. Ogden, supra, at 104.
Milepost SSFF does not fly aircraft and is not directly or indirectly owned by an air carrier. Therefore, to determine if Milepost SSFF is subject to the RLA, the NMB must consider both the work performed for and the degree of control exercised by its customers, United, Delta, Alaska, and TWA.
B. Factual Background on Milepost SSFF
The record establishes that Milepost Industries provides multi-faceted contract services to the airline and railroad industries. The company has three divisions: a transportation division which shuttles airline and railroad crews to and from hotels and other layover destinations; a facilities management division which manages office buildings for airlines and railroads; and a hospitality division which provides food and lodging for traveling airline and railroad crews. The South San Francisco facility is the only Milepost facility that services air carriers.
Of the thirty-seven Milepost SSFF employees at the South San Francisco facility, twenty-seven are drivers. Milepost SSFF schedules employees in four eight-hour shifts, 365 days a year. The employees perform approximately 170 airline crew transportation runs daily.
Milepost SSFF has agreements to transport airline crews at the South San Francisco facility with United, Delta, Alaska, and TWA. Milepost SSFF transports all of United's crews between the San Francisco International, Oakland, and San Jose airports and the crews' layover hotels. The record establishes that United characterized Milepost SSFF's transportation services as a key and integral part of its operations.
C. Milepost SSFF's Employees Perform Work
Traditionally Performed by Employees of Air Carriers
Several NMB decisions deal with companies which perform services like Milepost SSFF for common carriers. Crew Transit, Inc., supra (transportation of flight crews and internal security); ARA Environmental Services, Inc., 9 NMB 37 (1981) (building maintenance, janitorial services and security for Eastern Airlines); Security '76, 5 NMB 234 (1976) (security and shuttle bus service). The record establishes that the transportation of flight crews has been required by United's Pilots' and Flight Attendants' collective bargaining agreements since 1957. Further, the record is undisputed that the transportation of flight crews is an integral part of the carrier's business. Therefore, the NMB concludes that Milepost SSFF's employees perform functions which have been traditionally performed by airline employees.
D. Carrier Control
The record establishes substantial carrier control over Milepost SSFF operations. For example, United may cancel its contract with Milepost SSFF at any time and for any reason. Moreover, Milepost SSFF's employees' wages are constrained for the two-year term of the contract. The agreement between Milepost SSFF and TWA is an at-will contract.
The record reveals that the failure of Milepost SSFF to meet the flight crew transportation performance requirements under its contracts with the carriers would result in a failure of the carriers to perform their transportation services to the public.
The contract with United allows United to reject any Milepost SSFF driver that does not meet its standards. The record detailed one instance in which a United flight crew rejected a driver and Milepost SSFF promptly provided a substitute. In another instance, flight crew complaints resulted in Milepost SSFF dismissing a driver. United requires drug testing of Milepost SSFF drivers. Milepost SSFF drivers do not wear United uniforms, but United requires that they wear specific shirts, slacks, and shoes. Moreover, United requires the drivers to be clean-cut, well-groomed, well-mannered, and have good hygiene.
There are many other indicia of carrier control. Milepost SSFF must transport all flight crews that the carriers require, including all unscheduled and add-on flight crews. As a result, the carriers' flight schedules determine much of Milepost SSFF's daily operations.(1) As a result, the carriers' flight schedules also determine Milepost SSFF's daily staffing levels. In addition, United requires Milepost SSFF's drivers to arrive for scheduled flight crew transportation forty-five to fifty-five minutes before landing. The driver must wait for fiftenn minutes after landing or until the flight crews arrive at the transport vehicle.
Furthermore, United retains the right to review Milepost SSFF business records, including: the drivers' personnel folders, drug test results, and vehicle maintenance files. United has the right to reject a Milepost SSFF vehicle and have it replaced and even dictate the type of vehicle, van, or bus used by Milepost SSFF to pickup flight crews. More recently, Milepost SSFF has executed similar Crew Transport contracts with Alaska, Delta and TWA.
The record and the submissions of Milepost SSFF and the IBT, establish that United exercises sufficient control over Milepost SSFF to subject it to RLA jurisdiction.
Based on the record in this case, and for the reasons discussed herein, the NMB's opinion is that Milepost SSFF Industries and its employees are subject to the Railway Labor Act. This decision may be cited as, 27 NMB 362 (2000).
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Karen A. Sundermier, Esq.
Ronald J. Holland, Esq.
Andrew H. Baker, Esq.
1. In Ogden, supra, the carriers' flight schedules were the only
indicator of carrier control. In this case, the carriers' control extends far
beyond the control exercised in Ogden, supra.