NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Primeflight
Aviation Services, Inc. and Local
726, International
October 31, 2008
DECISION AND ORDER
By Chairman Schaumber and Member
Liebman
On December 11, 2006, the
Petitioner, Local 726, International Union of Journeymen and Allied Trades,
filed a petition seeking to represent a unit of all full-time and regular
part-time skycap employees, wheelchair service employees, baggage handling
employees, baggage service agents, priority parcel service agents, passenger service
employees and ticket verification employees employed by Primeflight Aviation
Services, Inc. (the Employer) at LaGuardia Airport Central Terminal and LaGuardia
Airport Marine Terminal in Queens, New York.
The Employer asserts that it is controlled by several common air
carriers subject to the jurisdiction of the Railway Labor Act and that,
therefore, the National Labor Relations Board (Board) lacks jurisdiction under
Section 2(2) of the National Labor Relations Act. The Petitioner contends that the Employer is
not directly or indirectly controlled by common air carriers subject to the
Railway Labor Act. After a hearing, the
Regional Director transferred the proceeding to the Board. As recommended by the Regional Director, the
Board thereafter referred the case to the National Mediation Board (the NMB)
for a jurisdictional opinion, discussed
below.
On the entire record in
this case, the Board[1]
finds:
The Employer provides
skycap, wheelchair, baggage, priority parcel, ticket verification, and
passenger services under contract with numerous air carriers at
The record also indicates
that the air carriers with whom the Employer contracts exercise substantial control
over the Employer’s LaGuardia Airport operations. The air carriers dictate the Employer’s
staffing levels by allotting to it a specific number of hours of work on a
yearly basis. Frequent changes in the
carriers’ flight schedules also dictate fluctuations in the Employer’s staffing
levels. In addition, the carriers regularly
change the daily assignments of the Employer’s employees based on the needs of
the carrier.
The carriers quickly
communicate those required staffing and assignment changes to the Employer by
e-mail, telephone, meetings, and direct instruction from carrier supervisors. The Employer’s general manager also meets
twice a week with managers of its largest contract airline; and once a week
with the next largest contract airline.[2]
The carriers dictate the
type of training the Employer’s employees must receive. Half of the Employer’s employees receive
their training directly from the carriers.
The carriers also train an employee of the Employer to give training,
and that individual trains the other half of the Employer’s work force. The carriers provide space to hold the
training, and require annual retraining under deadline. The carriers also require the Employer to
maintain training records, which the carriers may audit and verify at any time.
The Employer hires its own
employees, but those new hires are subject to background checks and alcohol and
drug testing required by the carriers.
The Employer sets its employees wages and benefits, although wage levels
are constrained by specific per hour prices paid by the carriers. The carriers also effectively retain the right
to have the Employer remove an employee from their account, or even to
terminate an employee. When such a
request is made by a carrier, the Employer complies.
Some of the Employer’s
employees wear airline uniforms. The
carriers approve the uniforms of the Employer’s other employees. The carriers also provide the bulk of the Employer’s
equipment.
Section 2(2) of the Act
provides that the term “employer” shall not include “any person subject to the
Railway Labor Act.” 29 U.S.C. §
152(2). Similarly, Section 2(3) of the
Act provides that the term “employee” does not include “any individual employed
by an employer subject to the Railway Labor Act.” 29 U.S.C. § 152(3). The Railway Labor Act, as amended, applies
to:
[E]very common carrier by
air engaged in interstate or foreign commerce, and every carrier by air
transporting mail for or under contract with the United States Government, and
every air pilot or other person who performs any work as an employee or
subordinate official of such carrier or carriers, subject to its or their
continuing authority to supervise and direct the manner or rendition of his
service. [45 U.S.C. § 151 First and
181.]
On February 2, 2007, the
Board requested that the NMB review the record in this case and determine the
applicability of the Railway Labor Act to the Employer. The NMB subsequently issued an opinion
stating its view that the Employer and its employees at
Having considered the facts
of this case in light of the opinion issued by the NMB, we find that the
Employer is engaged in interstate air common carriage so as to bring it within
the jurisdiction of the NMB pursuant to Section 201 of Title II of the Railway
Labor Act. Accordingly, we shall dismiss
the petition.
ORDER
It is ordered that the petition
in Case 29–RC–11405 is dismissed.
Dated, Washington,
D.C. October 31, 2008
______________________________________
Peter C. Schaumber, Chairman
______________________________________
Wilma B. Liebman, Member
(seal) National Labor Relations Board
[1] Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kirsanow and Walsh. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act.
[2] These
two airlines account for two thirds of the Employer’s operations at
[3] The NMB uses a two-pronged jurisdictional analysis: (1) whether the work is traditionally performed by employees of air and rail carriers; and (2) whether a common carrier exercises direct or indirect ownership or control. Both prongs of the test must be met, and the NMB concluded that they were in this case.
Additionally, the NMB noted that its decision was consistent with several previous NMB decisions asserting Railway Labor Act jurisdiction over the operations of the Employer’s corporate predecessor at several airports. E.g., International Total Services, 20 NMB 537 (1993); International Total Services, 16 NMB 44 (1988).