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-6755
NLRB Case No. 32-CA-19412-1
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 May 2, 2002, the National Labor Relations Board (NLRB) requested an opinion regarding whether Argenbright's operations at Metropolitan Oakland International Airport, Oakland, California (Oakland) are subject to the RLA.
For the reasons discussed below, the NMB's opinion is that Argenbright's operations and its employees at Oakland are subject to the RLA.
I. PROCEDURAL BACKGROUND
This case arose out of an unfair labor practice charge filed by Filipinos for Affirmative Action (FFAA). The charge alleges that Argenbright discriminated against an Argenbright employee, when it discharged that employee for engaging in protected concerted activity in violation of Section 8(a)(1) of the National Labor Relations Act (NLRA). Argenbright provides security services for a number of carriers at Oakland. The NLRB requested an NMB opinion regarding the NMB's jurisdiction over Argenbright's Oakland operations on May 2, 2002.
The NMB's opinion in this case is based upon the request and record provided by the NLRB, and the position statements 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 these jurisdictional cases 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 Oakland 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 Oakland.
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.
According to Argenbright, the carriers which it contracts at Oakland provide it with the overall number of staff hours required for each position that Argenbright staffs. Argenbright may also be required by each carrier to furnish additional personnel above current staffing levels. Argenbright states that each carrier has the final authority for determining the number of Argenbright employees needed on any given day and each carrier carefully monitors the staffing levels.
Argenbright states that, pursuant to practice and/or agreement, the carriers retain the right of immediate access to Argenbright work areas to observe and evaluate on-premises operations and equipment and access to Argenbright's records to ensure the qualification levels of Argenbright employees. Furthermore, any carrier official who observes an Argenbright employee engaging in misconduct has the right, and typically exercises such right, to advise Argenbright of the infraction and recommend discipline.
Argenbright states that compensation paid to Argenbright employees at Oakland is based upon each specific agreement with each carrier. Wage rates and benefits paid to Argenbright employees are subject to at least indirect control by the carriers. Argenbright notes that its employees wear badges identifying them as contractor employees assigned to a specific carrier. In addition, according to Argenbright, Carrier officials carefully monitor its training program to ensure compliance with the requirements of each carrier, as well as FAA requirements. All of these facts, Argenbright argues, lead to the conclusion that Argenbright's Oakland operation is significantly controlled by carriers.
III. THE FFAA'S CONTENTIONS
During the NLRB's investigation, FFAA did not take a position regarding NMB jurisdiction. On May 8, 2002, Kawal Ulanday entered a Notice of Appearance on behalf of FFAA. No further documents or position statements have been filed on behalf of the FFAA.
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 Oakland operation with its non-airline operations.
At Oakland Airport, Argenbright is a party to agreements with six airlines: United, Alaska, Delta, American, Southwest, and Aloha. Argenbright submitted the United Agreement (Agreement) but did not submit any other agreements governing is operations at Oakland stating, "it would be extremely burdensome on [Argenbright] to have to . . . gather from its businesspeople and clients all of the various pieces of information making up these contracts."
Argenbright has a Security Services Agreement (Agreement) with United which states that:
[Argenbright] will provide airport security services at the Airport, including as directed by United concourse or gate x-ray/table, international bag x-ray and hand search. These services are hereafter referred to as "Security Services." United and [Argenbright] will cooperate to ensure that adequate security supervisory presence is provided at Airport security points. United may adjust staffing or position headcount levels to meet reasonably anticipated passenger flows.
Agreement at pg 1.
According to the record, Argenbright hires, disciplines, and terminates its Oakland employees. Any carrier official observing an Argenbright employee engaging in misconduct or otherwise violating carrier policies has the right to advise Argenbright of any infractions and to recommend discipline. Carriers have exercised this right in the past. Argenbright cites as an example the circumstances which provide the basis for the underlying unfair labor practice charge filed with the NLRB in Oakland. Argenbright states that it terminated an employee based, at least in part, from a complaint received by Argenbright from a Mexicana Airlines'(1) Ground Security Coordinator (GSC). The Mexicana GSC observed an incident where an Argenbright employee failed to properly screen a passenger. The GSC reported the incident to Argenbright and requested that the employee be removed from the security checkpoint servicing Mexicana Airlines. Argenbright complied with the request.
All work performed by Argenbright for Oakland carriers is performed in accordance with the carriers' specifications and procedures. Argenbright employees must comply with the carriers' job performance standards and follow the rules and regulations of the carrier to which they are assigned. Each carrier monitors Argenbright's compliance with these procedures.
Argenbright trains its employees to follow the procedures of the carrier to which they are assigned, as well as Federal Aviation Administration (FAA) and airport procedures. Carriers monitor Argenbright's training program to ensure compliance with the requirements of each carrier as well as FAA requirements.
Argenbright maintains employee personnel records which contain information, such as background investigations and security clearances, required by the FAA and the carriers. These records are subject to audit and inspection by each carrier. The carriers also have the right of access to Argenbright's work areas to observe and evaluate the qualifications of Argenbright employees and evaluate operations and equipment. Argenbright employees are required to cooperate with carrier personnel.
The carriers provide Argenbright with the overall number of staff hours for each position based on each carrier's flight schedules. Each carrier has the final authority to determine the number of Argenbright employees needed and carefully monitors these staffing levels and adjusts the levels as necessary.
Argenbright provides compensation and benefits to its employees. The compensation paid to Argenbright employees is based upon each specific agreement with each specific carrier. According to the agreements, each carrier is billed by the hour for the services provided by Argenbright and an official must authorize, in writing, any overtime worked by Argenbright.
Argenbright provides uniforms to its employees. Argenbright employees at Oakland wear badges identifying them as contractor employees assigned to a specific carrier.
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 security services including "concourse or gate x-ray/table, international bag x-ray and hand search" for six carriers at Oakland. The NMB has found that security services and pre-board screening is work traditionally performed by employees in the airline industry. International Total Servs., 26 NMB 72 (1998); International Total Servs., 20 NMB 537 (1993); Andy Frain Servs., Inc., 19 NMB 161 (1992); Globe Sec. Sys. Co., 16 NMB 208 (1989); International Total Servs., Inc., 16 NMB 44 (1988); New York Interstate Serv., Inc., 14 NMB 439 (1987). Therefore, the NMB finds that Argenbright employees at Oakland perform functions which have been traditionally performed by airline employees.
2. Carrier Control Over Argenbright and Its Employees at Oakland Airport
Carriers exercise substantial control over Argenbright's Oakland operations. Carriers who observe an Argenbright employee engaging in misconduct or otherwise violating carrier policies may effectively recommend discipline. Carriers specify the procedures which Argenbright employees must follow. Carriers specify and monitor Argenbright's training for its Oakland employees. Carriers have access to Argenbright's work areas and records. The carriers control Argenbright's Oakland staffing. Any overtime performed by Argenbright must be approved by the carrier. Compensation paid to Argenbright employees is based upon agreements with each carrier. Argenbright employees wear badges supplied by the carrier and are held out to the public as carrier affiliated employees.
The NMB finds that carriers exert sufficient control over Argenbright's Oakland 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 Oakland Airport are subject to the RLA. This opinion may be cited as Argenbright Sec., Inc., 29 NMB 340 (2002).
By direction of the NATIONAL MEDIATION BOARD.
Chief of Staff
Terry P. Finnerty, Esq.
1. Mexicana is affiliated with United for its North American flights, and Argenbright performed pre-board screening for Mexicana pursuant to the Agreement.