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,
Global Aviation
Services, LLC and International
November 28, 2008
DECISION AND ORDER
By
Chairman Schaumber and Member Liebman
On
May 28, 2008, the Petitioner, International Union of Operating Engineers, Local
542, AFL–CIO (Engineers) filed a petition seeking to represent “all maintenance
and diesel fleet maintenance mechanics” employed by Global Aviation Services,
LLC (the Employer) at Philadelphia International Airport (PHL) in Essington,
Pennsylvania. On June 10, 2008,
Engineers amended the petition to seek representation of only “all full time
and regular part-time Deicing/Ground Support Equipment Service Technicians/Specialist/Mechanic/AFs”
(DI/GSE employees and mechanic).
The
Employer contends that it is subject to the Railway Labor Act and therefore the
National Labor Relations Board lacks jurisdiction over the Employer under
Section 2(2) of the National Labor Relations Act. The Employer further asserts that the
National Mediation Board’s (NMB) two-part function and control test is applicable
here. The Employer submits that it is
owned or controlled by a common carrier, as stipulated by the parties, and that
its employees perform work traditionally performed by airline industry employees.
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 NMB for a jurisdictional opinion,
discussed below.
On
the entire record in this case, the National Labor Relations Board[1]
finds:
At
the Board hearing, the Employer and the Engineers stipulated that the Employer
is directly owned or controlled by, or under common control with, an air
carrier, and thus the control prong of the test under the Railway Labor Act for
the definition of a derivative air carrier is undisputedly met.
The
jurisdictional question therefore turns on the nature of the work performed by employees
in the petitioned-for unit. The Employer
employs approximately 50 people and engages in the service and maintenance of
airline ground service equipment (GSE) at 15 airports across the country,
including PHL. The Employer contracts with air carriers such as Northwest Airlines
and Southwest Airlines. The Employer
performs maintenance on GSE such as tugs, push back tractors, ground power
units, deice trucks, baggage carts, air starts, lavatory trucks, ice trucks,
high lift trucks, scissor trucks, and various other equipment.
At
the time of the hearing, the Employer had seven employees working at PHL (six
DI/GSE employees and one mechanic). The
six DI/GSE employees are involved solely in the service and maintenance of the
deicing facility. The equipment in the
deicing building is owned by the city of
The
seventh employee is a “ground support equipment mechanic.” This employee performs preventative maintenance
on the Gate Gourmet equipment, such as the lift trucks used to load food and
beverages onto aircraft. This employee
also performs service and maintenance on GSE for Air Tran Airways. The Employer requires that this employee be
able to work in the repair, maintenance, and troubleshooting of vehicles and
equipment, under limited supervision.
All seven employees are subject to Transportation Security
Administration and Federal Aviation Administration security badge procedures, including
finger print and background checks.
Section
2(2) of the National Labor Relations 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:
Every
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
July 16, 2008, the Board requested that the NMB study 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 PHL are subject to the
Railway Labor Act. Global Aviation Services, LLC, 36 NMB 2 (2008).[3] In specific reference to the work performed
by these employees, the NMB found that the GSE work performed by the GSE
employees and mechanic is work traditionally performed by employees of air carriers.
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 4–RC–21449 is
dismissed.
Dated,
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Peter
C. Schaumber, |
Chairman |
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Wilma
B. Liebman, |
Member |
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(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] The NMB uses a
two-pronged jurisdictional analysis: (1) whether the work is traditionally
performed by employees of air or rail carriers; and (2) whether a common
carrier exercises direct or indirect ownership or control. Both prongs of the test must be met.
[3] Additionally,
the NMB noted that its decision was consistent with previous decisions
asserting RLA jurisdiction over employees performing GSE services, including
deicing. See Jimsair Aviation Serv., Inc., 15 NMB 85, 87–88 (1998);