February 27, 2002
Richard A. Siegel, Esq.
Associate General Counsel
National Labor Relations Board
1099 14th Street, NW.
Washington, DC 20570-0001
Re: NMB File No. CJ-6740
NLRB Case Nos. 28-CA-17330 and 17378
Integrated Airline Services, Inc.
Dear Mr. Siegel:
This responds to your November 5, 2001,(1) request for the National Mediation Board's (NMB) opinion regarding whether Integrated Airline Services, Inc. (IAS) is subject to the Railway Labor Act (RLA), 45 U.S.C. §§ 151-181.
For the reasons set forth below, the NMB's opinion is that IAS and its employees are subject to the RLA.
This case arose as the result of unfair labor practice charges filed by the International Brotherhood of Teamsters, Local 492 (IBT), with the National Labor Relations Board (NLRB) on July 20, 2001, and August 15, 2001. The IBT's allegations relate to IAS' operations in Albuquerque, New Mexico, where the company provides ground handling and ground support services for air carriers.
The NMB's opinion is based on the record provided by the NLRB, which includes submissions from IAS and the IBT, and a submission from IAS provided at the NMB's request. The IBT did not provide a position statement to the NMB.
IBT's position before the NLRB is that the NLRB has jurisdiction.
IAS' position is that the NMB has jurisdiction. IAS argues that it performs ground handling work traditionally performed by air carriers and that it is under the "'control'" of air carriers. In support of its position, IAS filed an affidavit from Harry Combs, IAS President and Chief Executive Officer. In addition, IAS provided ground handling manuals from American Trans Air (ATA), Express One, Emery Worldwide Airlines, DHL, Cargolux, and Kitty Hawk Air Cargo. Further, IAS provided a copy of its contract with Burlington Air Express (BAX) and UPS' airline security directives.
STATEMENT OF FACTS
According to Combs, IAS services at several airports nationwide include air starts for aircraft, powering the aircraft on the ground, marshaling the aircraft, towing and pushing the aircraft doors, preparing load plans, loading and unloading cargo and baggage to and from the aircraft, sorting cargo and luggage, stuffing airport gates, and operating equipment and systems on and in the aircraft.
ATA's ground service manual details the specific procedures IAS employees must follow at the Carrier's smaller contract stations. According to Combs, IAS employees follow "very specific instructions on ramp operations," and are held accountable by ATA for following ATA's instructions for on-time departures.
Express One's Ground Handling manual provides that contractors must either use Express One's manuals or contractor manuals which are in accord with Express One's manual provisions.
The contract between IAS and Cargolux Airlines provides that "the Handling Company shall carry out all technical and flight operations services in accordance with the Carrier's instructions . . . ."
IAS employees performing services for Kitty Hawk follow the Carrier's Ground Services Operations Manual. According to Combs, "Kitty Hawk's supervisor directs the work of IAS employees. In addition, Kitty Hawk provides training to IAS employees on the Carrier's standards and procedures."
Combs asserts further that "planeside representatives of Emery, BAX, and UPS . . . directly supervise our employees on matters such as a change in load plan, [and] out of sequence loading and unloading. . . ."
The contract between IAS and BAX outlines aircraft marshaling procedures. The contract also regulates IAS' uniforms and imposes rules on smoking and food consumption because the IAS "recognizes it will perform work for BAX representing BAX's name and image to the public."
Combs asserts that IAS has disciplined, removed, or terminated IAS employees at the request of certain carriers. For example, IAS removed employees at the request of Martinair, Cargolux, and UPS, "including removal of some on the basis of their failing UPS' criminal history background checks."
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 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).
IAS does not operate an airline and is not directly or indirectly owned by an air carrier. Therefore, to determine whether IAS is subject to the RLA, the NMB must consider the nature of the work performed and the degree of control exercised by air carriers.
IAS Employees Perform Work Traditionally
Performed by Employees of Air Carriers
IAS performs ground services for airlines at several airport locations. Providing air starts for aircraft, marshaling aircraft, towing and pushing back aircraft, and loading and unloading cargo and baggage to and from the aircraft are functions typically performed by Fleet Service Employees in the airline industry. Ground Services, Inc., 7 NMB 509 (1980); Industry Memorandum, 5 NMB 2 (1971). Therefore, the NMB finds that IAS employees perform functions traditionally performed by airline employees.
Air Carriers Exercise Control Over IAS and Its Employees
The record establishes a substantial degree of carrier control over IAS in its ground handling services. Several carriers with which IAS contracts require IAS to adhere to their procedural manuals. BAX provides training for IAS employees and requires IAS employees to abide by certain regulations regarding on-the-job conduct. In addition, representatives of Emery, BAX, and UPS directly supervise IAS employees in the performance of the ground handling work. Finally, carrier requests have led to termination of IAS employees.
The NMB finds that air carriers exert sufficient control over IAS employees to satisfy the second part of the Board's two-part test.
Based on the record in this case and for the reasons discussed above, the NMB's opinion is that IAS and its employees are subject to the RLA. This opinion may be cited as 29 NMB 196 (2002).
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Peter J. Petesch, Esq.
Carolyn Fisher, Esq.
Roland P. Wilder, Jr., Esq.
1. Due to problems with U.S. mail delivery the NMB did not receive the NLRB's request until December 10, 2001.