November 14, 2000
Mr. John E. Higgins, Jr., Solicitor
National Labor Relations Board
1099 14th Street, NW.
Washington, DC 20570-0001
Re: NMB File No. CJ-6702
NLRB Case No. 1-RC-21189
Globe Aviation Services
Dear Mr. Higgins:
This responds to your September 25, 2000, request for the National Mediation Board's (NMB) opinion regarding whether Globe Aviation Service (Globe or Employer) 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 Globe and its employees are subject to the RLA.
This case arose as a result of a representation petition filed by Service Employees International Union, Local 254, AFL-CIO (SEIU, Local 254), with the National Labor Relations Board (NLRB) on April 28, 2000. The Organization seeks to represent a bargaining unit of all cleaners employed by Globe at the Logan International Airport (Logan), Boston, Massachusetts.
The NLRB held a hearing on the petition on May 10, 2000. On June 1, 2000, the NLRB Regional Director for Region 1 issued a Decision and Order dismissing the petition. The Regional Director found that the Employer was subject to RLA, not National Labor Relations Act (NLRA), jurisdiction. The SEIU filed a Request for Review with the NLRB on June 8, 2000. The NLRB referred the case to the NMB for an opinion on RLA jurisdiction on September 25, 2000.
The NMB's opinion in this case is based on the information and record provided by the NLRB, which includes the post-hearing submissions of Globe and the SEIU, and position statements prepared by Globe and the SEIU at the NMB's request.
II. Contentions of the SEIU
The contentions of the SEIU are as follows:
Globe is not subject to the RLA.
Although Globe has employees who work as skycaps, wheelchair attendants, and pre-board screeners at Logan, the cleaners do not "interchange" with these other employees. The cleaners spend seventy-five percent of their time cleaning the Northwest Airlines (Northwest) terminal and only about twenty-five to forty percent of their time cleaning aircraft for Sun Country Airlines (Sun Country).
The cleaners wear Globe uniforms, operate Globe equipment and are supervised directly by Globe supervisors. Globe assigns and transfers, grants time off, and trains the cleaners. Although the airline can bar an employee from working in a certain area, Globe can reassign the employee to work in another area.
The degree of control exercised by the Carriers over Globe's cleaning employees does not meaningfully affect their employment relationship. Moreover, there is no direct connection between these employees and the airline transportation function. Therefore, these employees are not subject to RLA jurisdiction.
III. Contentions of Globe
The contentions of Globe are as follows:
Globe and its employees are subject to the RLA. At the hearing before the NLRB, stipulated facts and evidence established the following:
Cleaning work is work traditionally performed by carrier employees. The record before the NLRB established that the Carriers exercise direct and indirect control over Globe's employees. This case is indistinguishable from Sky Valet, 23 NMB 155 (1996). The Regional Director was correct and Globe is subject to RLA jurisdiction.
A. Applicable Legal Standard
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 Railway Labor Act. Federal Express Corporation, 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 Aviation Services, 23 NMB 98 (1996).
Globe does not fly aircraft and is not directly or indirectly owned by an air carrier. Therefore, to determine if Globe is subject to the RLA, the NMB must consider both the work performed for, and the degree of control exercised by, its air carrier customers.
B. Globe's Employees Perform Work
Traditionally Performed by Air Carrier Employees
The NLRB record establishes that Globe provides skycap services, wheelchair attendants, pre-board screeners and cleaners to Carriers at Logan. Globe purchased ServiceMaster and assumed its contracts with the Carriers. The NMB previously ruled that ServiceMaster is subject to RLA jurisdiction. ServiceMaster Aviation Services, 24 NMB 186 (1997) (skycaps); ServiceMaster Aviation Services, 24 NMB 181 (1997) (skycaps, wheel chair attendants, pre-board screeners). The only employees subject to the NLRB petition are the cleaners.
Many NMB decisions have found that cleaning work is work traditionally performed by air carrier employees. Evergreen Aviation Ground Logistics Enterprises, Inc., 25 NMB 460 (1998); Ogden, 23 NMB 98; Commercial Aviation Services of New York City, 22 NMB 223 (1995); AMR Services Corporation, 18 NMB 348 (1991). Therefore, the NMB concludes that the nature of the work Globe employees perform is traditionally performed by airline employees.
C. The Carriers Exercise Substantial
Control Over Globe
Globe's clients at Logan include Northwest, Virgin Atlantic Airlines, Sun Country, and East Coast Tradewinds Airline. The contract between Northwest and Globe(1) (NLRB Ex. B-3, "Contract") says that Globe will provide "only personnel who have been trained and certified as necessary . . . to perform services under the contract" and that the employees must wear a uniform provided by Globe which meets all regulations "including . . . those indicated by Northwest . . . ." (Contract, 4.01.) Globe personnel shall "not sleep, read, or be under the influence of drugs or alcohol or enter or possess Northwest property not connected with the work area while on duty." (Contract, 4.01.)
All personnel must be trained to perform the duties under the contract and "Northwest shall have the right to review and approve training materials and attend classroom training." (Contract, 4.02.) Training records shall be made available for inspection by Northwest at all reasonable times. (Contract, 4.02.) Globe must immediately remove from service any employee who, in Northwest's opinion, "does not meet its qualifications for any reason." (Contract, 4.04.)
Globe's records relating to hours of service and composite wage rates, including "direct and indirect payroll," are "subject to inspection and audit by any authorized representative of Northwest." (Contract, 10.) The Northwest cleaning instructions and jetway cleaning instructions give specific cleaning directions to Globe employees.
The record also contains the Sun Country "Outstation Aircraft Cleaning Manual" which details all cleaning functions and how they are to be performed. (NLRB Ex. B-2.)
The record and the submissions establish substantial control by Northwest and Sun Country over the manner in which Globe employees perform their jobs. In addition, Northwest has the right to remove Globe employees from its service, and has substantial control over employee training.
Based upon the Board's previous decisions in Evergreen, 25 NMB 460; Ogden 23 NMB 98; Commercial Aviation, 22 NMB 223; and AMR Services, 18 NMB 348; the NMB finds that Globe is subject to the RLA.
Based on the record in this case, and for the reasons discussed herein, the NMB's opinion is that Globe and its employees are subject to the Railway Labor Act. This decision may be cited as 28 NMB 41 (2000).
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Mr. Guy D. Thomas
Mr. Donald Coleman
1. The original signatory to the contract was ServiceMaster. Globe assumed the contract. (NLRB Ex. B-3.)