June 13, 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-6744
NLRB Case No. 22-CA-24605
Argenbright Security, Inc.
Dear Mr. Siegel:
This letter responds to the request you made for the National Mediation Board's (NMB) opinion regarding whether Argenbright Security, Inc. (Argenbright) is subject to the Railway Labor Act (RLA), 45 U.S.C. §§151 - 181. On November 13, 2001,(1) the National Labor Relations Board (NLRB) requested an opinion regarding whether Argenbright's operations at Newark International Airport, Newark, New Jersey (Newark) are subject to the RLA.
For the reasons discussed below, the NMB's opinion is that Argenbright's operations and its employees at Newark are subject to the RLA.
I. PROCEDURAL BACKGROUND
This case arose as a result of an unfair labor practice charge filed by Robert Carroll, with the NLRB on May 24, 2001. The charge alleges that Argenbright terminated Carroll's employment because of Carroll's organizing activities on behalf of the International Brotherhood of Teamsters, Local 210 (IBT or Organization). Argenbright provides ground support services for Continental Airlines at Newark. The NLRB requested an NMB opinion regarding the NMB's jurisdiction over Argenbright's Newark operations on November 13, 2001.
The NMB's opinion in this case is based upon the request and record provided by the NLRB, and the position statement submitted by Argenbright at the NMB's request.
II. ARGENBRIGHT'S CONTENTIONS
Argenbright states that it became a wholly-owned subsidiary of Securicor, PLC (Securicor) approximately one year ago. Securicor is in the process of restructuring Argenbright into at least two separate and administratively distinct corporations which will be renamed. One will provide general security services to non-aviation clients. The other corporation will concentrate its business on airline related activities. Argenbright states that this restructuring process will be completed at the end of the second quarter of 2002. Therefore, Argenbright requests that the NMB hold this case in abeyance until the restructuring is complete. To do otherwise, Argenbright argues, "may require the NMB to have to revisit the issues raised in this case at a later date, to determine to what extent the new airline security company does work traditionally done by airline employees and to what extent it is controlled by carriers. Security '76, Inc., 5 NMB 234, 235-36 (1976)."
In the event the NMB decides to issue an opinion in this case prior to the completion of Argenbright's reorganization, Argenbright contends that its operations and employees at Newark should be subject to the jurisdiction of the RLA.
Argenbright states that the NMB determined that it was not subject to the RLA in 1985. C.R.A. Transp./ARC Sec./ Argenbright, Inc., 12 NMB 146 (1985). However, Argenbright argues that the types and volume of its aviation-related business have increased significantly in 17 years and it is, therefore, appropriate for the NMB to revisit the issue of RLA jurisdiction over Argenbright's operations at Newark.
Argenbright contends that it meets both the function and control tests established by the NMB for determining jurisdiction. Baggage handling, pre-board screening, checkpoint security and wheelchair assistance service are functions traditionally performed by employees in the airline industry and there is substantial evidence of carrier control. Specifically, Argenbright argues that all of the work performed for a carrier must comply with the carrier's specifications and procedures.
At Newark Airport, Continental Airlines contracts with Argenbright to provide skycap services. Argenbright states the following: Continental provides Argenbright with the overall number of staff hours required; Continental retains the right of immediate access to Argenbright work areas to observe and evaluate on-premises operations and equipment, including access to the office of Argenbright's area manager at the Airport; Continental has the right to approve or disapprove of Argenbright's supervisory personnel. Although Argenbright provides uniforms to skycaps, Continental nametags are worn. Thus, Argenbright skycaps are held out to the public as Continental employees. All of these facts, Argenbright argues, lead to the conclusion that Continental exercises control of Argenbright's operations.
III. IBT'S CONTENTIONS
During the NLRB's investigation, the Charging Party, Carroll, stated that he "would prefer that the NLRB take jurisdiction over this matter."
On January 29, 2002, the IBT filed a Notice of Appearance. However, on February 7, 2002, the Organization withdrew its Notice of Appearance. No further documents or position statements have been filed on behalf of IBT.
IV. FINDINGS OF FACT
Argenbright, a Georgia corporation, is a division of Securicor, PLC, a United Kingdom corporation specializing in security services. Argenbright provides security and ancillary services to air carriers nationwide. Argenbright also provides services for non-carriers through a separate operating division. The record does not show any interchange of Argenbright employees working at its Newark operation with its non-airline operations.
Argenbright has a "Ground Support Services Agreement" (Agreement) with Continental Airlines to provide skycap services at Newark. At Newark, Argenbright's skycap employees assist passengers with baggage handling, ticket issuing and check in. Work is performed according to Continental's specifications and procedures. Employees must comply with Continental's job performance standards.
Argenbright hires, disciplines and terminates skycap employees. Continental is not directly involved in the hiring or discipline of employees, but it reviews and approves the hiring of the area manager who has direct authority for such decisions. According to Section 5(e) of the Agreement:
Should an employee, subcontractor or other personnel representing [Argenbright] be observed performing in an unsatisfactory manner; or should an accident, damage or injury result from less than satisfactory performance by such personnel, [Argenbright], upon notice thereof, shall take whatever steps necessary to ensure (i) that such performance is not repeated, and (ii) that all personnel perform at a satisfactory level.
Although Argenbright provides uniforms to skycap employees, skycaps are required to wear a Continental nametag. Argenbright personnel records contain background investigations and security clearances. While Argenbright maintains the personnel records on skycap employees, Continental has the right to audit and inspect these records based on FAA regulations and guidelines. Continental also has access to all information regarding any incident that results in actual or potential damage.
Continental provides Argenbright with the overall number of personnel hours required, based on flight schedules. Argenbright bills Continental on an hourly basis, and a Continental representative must authorize all overtime requests. Upon written request, Continental may request that Argenbright furnish additional personnel.
Continental owns all equipment used by skycap employees. Continental maintains immediate access to observe and evaluate its on-premises operations and equipment. Continental provides, through a free lease, a small office to the Argenbright area manager. Argenbright provides workers compensation, liability insurance, unemployment and pension benefits to skycap employees.
The NMB has long held that the RLA deals with the present status and present interest of employees. Raytheon Travel Air, 29 NMB 181 (2002); Wings West Airlines, 15 NMB 283 (1988); Trans World Airlines, 13 NMB 146 (1986); Airborne Express, Inc., 9 NMB 54 (1981); Chicago & North Western Ry. Co., 4 NMB 240 (1965). Argenbright's request that the NMB hold its jurisdictional opinion in abeyance pending Argenbright's reorganization and restructuring is, therefore, denied.
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. Globe Aviation Servs., 28 NMB 41 (2000). See also 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. Globe Aviation Servs., above. See also Ogden Aviation Servs., 23 NMB 98 (1996).
Argenbright does not fly aircraft and is not directly or indirectly owned by an air carrier. Therefore, to determine whether Argenbright is subject to the RLA, the NMB must consider the nature of the work performed and the degree of control exercised by air carriers.
1. Argenbright Employees Perform Work Traditionally
Performed by Employees of Air Carriers
Argenbright provides skycaps to Continental Airlines at Newark Airport. NMB decisions have found that this work is work traditionally performed by air carrier employees. Globe Aviation Servs., 28 NMB 41 (2000); Command Sec. Corp. d/b/a Aviation Safeguards, 27 NMB 581 (2000); ServiceMaster Aviation Servs., 24 NMB 186 (1997); ServiceMaster Aviation Servs., 24 NMB 181 (1997); International Total Servs., 20 NMB 537 (1993); Sky Valet, 18 NMB 482 (1991); Sky Cap, Inc., 13 NMB 292 (1986). Therefore, the NMB finds that Argenbright employees at Newark perform functions which have been traditionally performed by airline employees.
2. Carrier Control Over Argenbright and Its
Employees at Newark Airport
The record establishes a substantial degree of carrier control over Argenbright in its ground handling services at Newark Airport. The Agreement provides that Continental can monitor Argenbright's employees and effectively recommend discipline or other remedial action. Argenbright employees follow Continental's work rules and procedures. Continental provides the nametags that Argenbright employees wear and Argenbright's Newark employees hold themselves out to the public as Continental employees. Continental retains the right to review personnel records. Continental sets the staffing levels of Argenbright's Newark employees and Continental must authorize all overtime requests. Continental owns all of the equipment used by Argenbright's Newark employees. In addition, Continental provides an office at Newark for Argenbright through a free lease.
The NMB finds that Continental exerts sufficient control over Argenbright's Newark employees to satisfy the second part of the NMB's two-part test.
Based on the record in this case and for the reasons discussed above, the NMB's opinion is that Argenbright and its employees at Newark Airport are subject to the RLA. This opinion may be cited as Argenbright Sec., Inc., 29 NMB 332 (2002).
By direction of the NATIONAL MEDIATION BOARD.
Chief of Staff
Terry P. Finnerty, Esq.
1. Due to problems with U.S. mail delivery, the NMB did not receive the NLRB's request until January 11, 2002.