26 NMB No. 12
Mr. John E. Higgins, Jr.
Solicitor
National Labor Relations Board
Washington, DC 20570
Re: NMB File No. CJ-6643
Dear Mr. Higgins:
This responds to your September 2, 1998, request for the National Mediation Board's opinion regarding whether International Total Services (ITS) is subject to the Railway Labor Act, 45 U.S.C. §§ 151-188.
I.
This case arose as a result of a representation petition filed by the Service Employees' International Union, Local 200-D, AFL-CIO, CLC (SEIU) with the National Labor Relations Board. In the petition, SEIU seeks to represent ITS's "pre-board screeners and employees who do not have the power to hire or fire" at Albany International Airport. The NLRB held a hearing on July 31, 1998. ITS did not participate in the hearing, but submitted a position statement asserting that it is subject to the Railway Labor Act. SEIU asserted that ITS falls within the jurisdiction of the National Labor Relations Act.
The Board bases its opinion in this case upon the information provided by the NLRB, as well as a position statement filed by ITS on September 21, 1998.(1)
II.
A.Where the company at issue is a separate corporate entity that does not fly aircraft for the public transportation of freight or passengers, the National Mediation Board applies a two-part test in determining whether an employer and its employees are subject to the Railway Labor Act, 45 U.S.C. § 181. Quality Aircraft Services, Inc., 24 NMB 286 (1997); Federal Express, 23 NMB 32 (1995). First, it determines whether the nature of the work performed is that traditionally performed by employees of rail or air carriers. Second, it determines whether the employer is directly or indirectly owned or controlled by, or under common control with, a carrier or carriers. Both parts of this test must be satisfied for the Board to assert jurisdiction.
At the NLRB hearing, SEIU argued that the NLRB has jurisdiction over the employees at issue because the employees are supervised by ITS and they do not wear uniforms or badges identifying them as airline employees. The organization did not provide any factual basis for distinguishing ITS pre-board screeners who work at Albany from ITS pre-board screeners at other airports.
In International Total Services, 20 NMB 537 (1993), the Board found that security services and pre-board screening is work traditionally performed by employees in the airline industry. See also Andy Frain, Inc., 19 NMB 161 (1992); Globe Security Systems Company, 16 NMB 208 (1989); International Total Services, 16 NMB 44 (1988); New York Interstate Service, Inc., 14 NMB 439 (1987). The Board found that ITS provides services at approximately 110 airports in the United States, including Albany International Airport. At Albany, approximately 60 employees provide pre-board screening services for US Airways, United Airlines, Delta Airlines, Trans States Airlines and American Airlines.
B.The record in International Total Services, supra, established that the system for purposes of representation was ITS's Airline Services Division, and not individual airports. The Board also found that ITS's agreements with air carriers provide for significant control over ITS's operations by the airlines.
Prior to the Board's 1993 decision finding that ITS's entire Airline Services Division was one system subject to the Railway Labor Act, the Board had asserted jurisdiction over ITS's operations in various determinations. In International Total Services, 16 NMB 44 (1988), the Board found that ITS's operations at San Francisco International Airport were subject to the Railway Labor Act. In its decision, the Board noted that previously it had determined that ITS's operations at Chicago O'Hare and Dallas/Fort Worth Airport were also subject to the Act. 11 NMB 67 (1983), and 9 NMB 392 (1982).
III.
A.ITS argues that its core agreements with various air carriers for pre-board screening services "are virtually identical" across ITS's system and vary only by local wage rates. ITS has submitted a copy of its agreement with US Airways as evidence. Among the contract's provisions is one stating:
Contractor (ITS) agrees that it will remove from service at USAir's request . . . any security personnel who (in USAir's opinion) are not performing the work assigned in the manner, required by this Agreement.
The contract provides, in addition, that ITS's books are records open for inspection to US Airways, and that the services rendered must be to the "sole satisfaction" of USAir.
ITS's "core agreement" with United provides that United may adjust staffing levels, that overtime must be approved in advance by United, that United may request the re-assignment of ITS supervisors or managers, and that ITS employees must wear attire that is acceptable to United.
B.When the Board examines whether an entity is controlled by a carrier or carriers, it focuses on inter alia, the carriers' role in the entity's daily operations, and the entity's employees' performance of services for the carriers. Evergreen Aviation and Logistics Enterprises, Inc., 25 NMB 460 (1998); Sky Valet, Commercial Aviation Services of Boston, Inc., and C and H Air Corporation, 22 NMB 230 (1995). The Board also examines, inter alia, the carriers' role in employing and terminating employees; the degree to which the carriers supervise the entity's employees; the degree to which the carriers affect other conditions of employment; whether employees are held out to the public as carrier employees; and the degree of carrier control over employee training. Quality, supra; Ogden Aviation Services, 23 NMB 98 (1996).
An analysis of the record in this matter in light of the foregoing leads once again to the conclusion that ITS and its employees are subject to control by air carriers. Although ITS hires and fires its employees, carriers can request re-assignment and play a significant role in staffing and other working conditions.
As stated previously, the Board has asserted jurisdiction over ITS on a system-wide basis, International Total Services, 20 NMB 537 (1993). There is nothing in the record of this case to indicate that ITS's operations at Albany differ significantly, if at all, from those at all other airports where ITS provides pre-board screening services.
Based upon the record in this case, the Board is of the opinion that ITS and its employees in Albany and system-wide are subject to the Railway Labor Act. This decision may be cited as International Total Services, 26 NMB 72(1998).
By direction of the NATIONAL MEDIATION BOARD.
Stephen E. Crable
Chief of Staff
Copy to:
Margaret A. Wegener, Esq.
Dominick Tocci, Esq.
1. SEIU submitted a letter stating that the organization was standing "on the record in reference to its position that the employees involved are subject to the jurisdiction of the NLRB."
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