December 17, 2001
Richard A. Siegal
Associate General Counsel
National Labor Relations Board
1099 14th Street, NW.
Washington, DC 20570-0001
Re: NMB File No. CJ-6735
NLRB Case No. 32-CA-18938-1
Huntleigh USA Corporation
Dear Mr. Siegal:
This responds to your September 21, 2001, request for the National Mediation Board's (NMB) opinion regarding whether Huntleigh USA Corporation (Huntleigh) 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 Huntleigh and its employees are subject to the RLA.
This case arose as a result of an unfair labor practice charge filed by the Service Employees International Union, Local 1877 (SEIU), with the National Labor Relations Board (NLRB) on June 14, 2001. SEIU alleged that Huntleigh is discriminating against its employees because of SEIU's attempt to represent a bargaining unit of pre-boarding screeners, skycaps, and baggage claim and wheel chair assistants employed by Huntleigh at the Southwest Airlines (Southwest), Terminal 2, Oakland Airport, Oakland, California (OAK). Huntleigh provides skycap, baggage, special and security services to airlines nationwide. Huntleigh has no customers other than airlines.
The NMB's opinion is based on the information and record provided by the NLRB and position statements prepared by Huntleigh and SEIU at the NMB's request.
II. CONTENTIONS OF SEIU
The contentions of SEIU are as follows:
Huntleigh is not subject to the RLA. The NMB has already declined to assert jurisdiction over Huntleigh's operations at Lambert St. Louis International Airport (STL). Huntleigh Corp., 14 NMB 149 (1987) (Huntleigh). Further, Huntleigh did not contest the NLRB's jurisdiction when an employee filed an NLRB decertification petition at the Seattle-Tacoma International Airport. Therefore, in this case, Huntleigh should carry the burden to prove that its operations at other airports differ significantly from those at OAK to support its claim of NMB jurisdiction.
Huntleigh is not controlled by a carrier. The NMB has "eroded" the meaning of the RLA term "carrier." There is no statutory basis supporting a finding of carrier control of another employer, like Huntleigh in this case, if the carrier does not control the management and business policies of the employer. Virginia Railway Co. v. System Federation No. 40, 300 U.S. 515 (1937); Martin v. Federal Security Agency, 174 F.2d 364 (3rd Cir. 1949); Marriot In-Flite Services, 171 NLRB 742 (1968).
However, even applying the NMB's "watered down standard," Huntleigh is not controlled by Southwest at OAK. Huntleigh provides no evidence that employees' wages are set by Southwest. Southwest has no control over whether unacceptable employees are transferred to other parts of Huntleigh's business and Huntleigh retains control over all employee assignments. Huntleigh's employees wear Huntleigh uniforms and not Southwest uniforms. Therefore, Huntleigh employees are not held out to the public as Southwest employees. While Southwest may review Huntleigh training materials and attend the classes, Huntleigh conducts all employee training. Huntleigh provides the same services at OAK as at other airports and has a single set of personnel policies at its work locations.
For all these reasons Huntleigh is not subject to RLA jurisdiction.
III. CONTENTIONS OF HUNTLEIGH
The contentions of Huntleigh are as follows:
The security, skycap, and special services Huntleigh employees perform are historically and traditionally work of airline employees. Furthermore, some carriers perform all or some of this work with their own employees.
Huntleigh has no customers other than airlines. The corporation has changed ownership twice since 1987 when the NMB declined jurisdiction in Huntleigh, above. Moreover, Huntleigh has not provided any services at STL for more than ten years. As a result of these changed circumstances and facts, Huntleigh's current relationships with its airline customers have changed.
Currently, Huntleigh and its employees are under direct and daily control of airline customers at each airport. These airline customers determine and control Huntleigh employees' hourly wage rate by controlling the contracted hourly rate paid to Huntleigh. For example, Huntleigh cannot raise employee hourly wages unilaterally because the airline must first agree to increase the contracted hourly rate. Huntleigh employees undergo the same FAA security checks and drug testing as airline employees.
The Huntleigh-Southwest Core Airport Support Services Agreement (Agreement) gives Southwest the right to terminate any Huntleigh employee at OAK and Los Angles International Airport (LAX) because Southwest is Huntleigh's only customer. At airports where Huntleigh serves more than one carrier, Huntleigh could transfer an employee that a carrier found objectionable to another carrier, but usually Huntleigh terminates these employees. Consequently, Huntleigh has discharged and disciplined many employees at the request, suggestion, or direction of carriers and, conversely, has mitigated discipline at carrier request.
At airports where Huntleigh services several airlines, the carriers often express preferences for the assignment of particular skycap employees. Huntleigh grants these requests. The general instructions and daily instructions to skycaps are given by the carrier's Ground Security Coordinator (GSC). At the airport security checkpoints where Huntleigh security screeners work, GSC's direct the Huntleigh employees to ensure FAA security requirements are met. Fines for breaches in security imposed by the FAA are paid by the carrier, not Huntleigh. Huntleigh special service employees' work, including utility employees and wheelchair assistants, is integrated with the work of airline employees.
Based on this historical and traditional airline work Huntleigh employees perform, and the extensive control by Southwest, Huntleigh is a carrier under the RLA.
A. Applicable Legal Standard
When an employer is not a rail or air carrier engaged in the transportation of freight or passengers, the NMB applies a two-part test in determining whether the employer and its employees are subject to the RLA. Federal Express Corp., 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).
Huntleigh does not operate an airline and is not directly or indirectly owned by an air carrier. Therefore, to determine if Huntleigh is subject to the RLA, the NMB must consider both the work performed for, and the degree of control exercised by, its airline carrier customer, Southwest.
B. Huntleigh's Employees Perform Work
Traditionally Performed by Employees of Air Carriers
The NLRB record establishes that Huntleigh provides pre-boarding screeners, skycaps, and baggage claim and wheel chair assistants to Southwest at OAK. Many NMB decisions have found that this work is work traditionally performed by air carrier employees. Globe Aviation Services, 28 NMB 41 (2000); Command Security Corp. d/b/a Aviation Safeguards, 27 NMB 581 (2000); ServiceMaster Aviation Services, 24 NMB 186 (1997); ServiceMaster Aviation Services, 24 NMB 181 (1997); International Total Services, 20 NMB 537 (1993); Sky Valet, 18 NMB 482 (1991); Sky Cap, Inc., 13 NMB 292 (1986).
Therefore, the NMB finds that Huntleigh employees perform functions which have been traditionally performed by airline employees.
C. Southwest Exercises Substantial Control Over Huntleigh
Huntleigh's sole client is Southwest. The NLRB record establishes that Southwest has significantly greater control over Huntleigh's operations at OAK than Trans World Airlines at STL in the jurisdictional case presented for NMB's opinion by the NLRB in 1987. Huntleigh Corp., 14 NMB 149 (1987).
The business relationship between Huntleigh and Southwest is defined by their Agreement. The Agreement, the NLRB's record, and the Huntleigh and SEIU submissions reveal that Huntleigh is directly controlled by Southwest.
For example, Southwest is entitled to request the removal of any Huntleigh employee that Southwest believes "displays improper conduct." Southwest is entitled to review and approve Huntleigh training materials and attend training. Huntleigh must submit written staffing recommendations reporting the number of employees hired, hours worked, and the overtime and holiday work schedules to the Southwest station manager. The Southwest station manger has the power to approve or disapprove these recommendations. Huntleigh employees' hourly wage rate is set by a schedule in the Agreement and may not be changed unilaterally.
The work of Huntleigh's pre-boarding screeners is directed by Southwest GSC's who ensure that FAA security requirements are met. The Agreement provides that Southwest may test the pre-boarding screeners "at such times and in such frequency as Southwest determines."
The NMB finds that the record and submissions establish that Southwest exercises substantial control over Huntleigh and its employees.
Based on the record in this case, and for the reasons discussed herein, the NMB's opinion is that Huntleigh and its employees are subject to the RLA. This decision may be cited as 29 NMB 121 (2001).
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Michael Bobroff, Esq.
Mr. Richard Price
Ms. Andrea Dehlendorf
Andrew Strom, Esq.
Paul Supton, Esq.