27 NMB No. 85

June 27, 2000

Richard A. Siegel, Esq.

National Labor Relations Board

Office of the General Counsel

Washington, DC 20570

Re: NMB File No. CJ-6681

NLRB Case No. 14-CA-23892

Union Pacific Motor Freight

Dear Mr. Siegel:

This responds to your February 29, 2000, request for the National Mediation Board's (NMB) opinion regarding whether Union Pacific Motor Freight (UPMF) 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 UPMF and its employees are subject to the RLA.

I.

Procedural Background

This case arose as a result of an unfair labor practice filed by the International Brotherhood of Teamsters Local 600 (IBT) with the National Labor Relations Board (NLRB) on December 8, 1995. The IBT, who represented UPMF's employees, alleged that UPMF unilaterally subcontracted bargaining unit work in violation of Section 8(a)-(1) and (5) of the National Labor Relations Act (NLRA). The matter was deferred pending grievance arbitration proceedings. However, on March 2, 1997, the arbitrator sent the matter back to the NLRB, stating that "the substantial legal question of single employer status as between Union Pacific Motor Freight . . . and Union Pacific Railroad . . . is within the special competence of the NLRB."

On April 1, 1997, Rail Terminal Services (RTS) purchased the UPMF stock, hired its employees, took over its operations, recognized the IBT as the employees' representative, and honored the collective bargaining agreement. This determination does not address whether RTS is subject to the RLA, because that issue was not referred to the NMB by the NLRB.

II.

Work Performed

When the unfair labor practice charge was filed, UPMF, a certified motor carrier, provided intermodal services in Dupo, IL, for the Union Pacific Railroad (Railroad). These services included loading and unloading trailers and containers from trains, hooking up tractors and driving them to the ConRail rail yard at Fairmont City, IL. UMPF employees also performed car ramp work, which was loading and unloading automobiles from rail cars.

III.

Ownership and/or Control

In 1995, Richard Davidson was the Railroad President and Chief Executive Officer and Chairman of the Board of Directors for UPMF. Mike Chapman was Vice President of the Railroad, a member of the UPMF Board of Directors, and Vice President and General Manager of UPMF. Chapman made the day-to-day decisions for UPMF.

UPMF's offices were located in the Railroad office building, and all UPMF records were stored in the Railroad's storeroom. All Railroad safety rules applied to UPMF employees. UPMF's "over the road driver," who hauled railroad freight, had his expenses reimbursed by the Railroad. UPMF used trailers owned by the Railroad. UPMF provided services only to the Railroad. UPMF's annual budget was approved by the Railroad. UPMF's employees received the same health benefits as Railroad employees. All hiring and firing decisions were made by the UPMF officers, who also were officers of the Railroad.

IV.

IBT's Position

The Organization's position before the NLRB was that UPMF and Union Pacific Railroad were a single employer at the time the alleged unfair labor practice occurred. IBT does not take a position on RLA jurisdiction.

UPMF's Position

UPMF's position before the NLRB was that UPMF and the Railroad were not a single employer but were separate corporations with separate control of labor relations.

In light of UPMF's sale to RTS, UPMF argues that the question of jurisdiction should not be before the NMB.

V.

DISCUSSION

A. Applicable Legal Standard

An entity may be a carrier directly, by operating a railroad, or indirectly as a subsidiary or derivative carrier. North Carolina State Ports Authority, 26 NMB 305 (1999). A derivative or subsidiary carrier is one that is "directly or indirectly owned or controlled by or under common control with any carrier by railroad . . . ." 45 U.S.C. § 151, First.

When the Board seeks to determine whether such an entity is subject to the RLA, it applies a two-part test. First, it determines whether the nature of the work performed is that traditionally performed by employees of common 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. Milepost Industries, 27 NMB 362 (2000); North Carolina State Ports Authority, supra.

B. Nature of Work Performed

The NMB has asserted jurisdiction over entities which provide intermodal trucking services on numerous occasions. In O/O Truck Sales, Inc., 21 NMB 258 (1994), the Board found that a company which performed the vast majority of work for a rail carrier was subject to RLA jurisdiction, finding that the services were "integrally related" to rail transportation.⁽¹⁾

Loading and unloading containers and automobiles onto and off rail cars is a service in connection with the transportation of freight by railroads. Glenway, Inc., 17 NMB 257 (1990); Inter Mobile Company, 17 NMB 223 (1990); Pacific Rail Services d/b/a Intermodal Management Services, 16 NMB 468 (1989). See also Bankhead Enterprises, Inc., 17 NMB 153 (1990). The Board finds that the work performed by UPMF meets the first part of the two-part test.

C. Ownership or Control

The Board also finds that the second part of the test is met because UPMF was owned and controlled by the Railroad, and its employees were subject to day-to-day control by the Railroad.

VI.

CONCLUSION

Based upon the facts presented, the NMB concludes that at the time this case was filed before the NLRB, UPMF was subject to the RLA. This opinion may be cited as Union Pacific Motor Freight, 27 NMB 441 (2000).

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Clifford A. Godiner, Esq.

Jan Bond, Esq.

Mr. Ray Benning

Roland Wilder, Esq.

1. The "integrally related" test was established in Florida Express Carrier, Inc., 16 NMB, 407 (1989). Florida Express, a wholly-owned subsidiary of Florida East Coast Railroad, was a certified motor carrier providing intermodal trucking service.