27 NMB No. 108

September 11, 2000

Mr. John E. Higgins, Jr., Solicitor

National Labor Relations Board

1099 14th Street, N.W.

Washington, D.C. 20570-0001

Re:	NMB File No. CJ-6689

NLRB Case No. 29-RC-9442

Command Security Corporation d/b/a Aviation Safeguards

Dear Mr. Higgins:

This responds to your June 5, 2000, request for the National Mediation Board's (NMB) opinion regarding whether Command Security Corporation d/b/a Aviation Safeguards (AVSA or Employer) is subject to the Railway Labor Act (RLA), 45 U.S.C. §§ 151-181.

For the reasons discussed below, the NMB's opinion is that AVSA and its employees are subject to the RLA.

I. Background

This case arose as a result of a representation petition filed by Production Workers Union, Local 148, International Union of Allied Novelty and Production Workers, AFL-CIO (Production Workers or Organization), with the National Labor Relations Board (NLRB) on January 11, 1999. The Organization seeks to represent a bargaining unit of all full-time and regular part-time Baggage Handlers employed by AVSA at the John F. Kennedy Airport (JFK), Terminals 6 and 7, and Tower Airlines Terminal, Jamaica, New York, AVSA facilities.

At the March 24 , 2000, NLRB hearing on the Production Workers' petition, AVSA asserted that skycaps should be part of the bargaining unit. The Production Workers asserted that skycaps are not part of the unit the Organization was seeking to represent. This opinion addresses only the issue of RLA jurisdiction.

The NMB's opinion in this case is based on the information and record provided by the NLRB, which includes the post- hearing submissions of AVSA and the Production Workers, and positions statements prepared by AVSA and the Production Workers at the NMB's request.

II. Contentions of the Production Workers

The contentions of the Productions Workers are as follows:

AVSA is not subject to the RLA. AVSA is engaged in the business of providing baggage handling and security services on subcontracts with air carriers who are subject to the RLA. Since AVSA is a separate entity from the carriers it contracts with, the NMB must determine whether the carriers exercise direct or indirect control over the employer.

The contract between AVSA and British Airways, Plc. (BA) and United Airlines, Inc. (UA) is a "classic subcontracting agreement where the end results are set forth, but not the 'manner of rendition' . . . [which] is left to the discretion of [AVSA]." The Carriers retain the right to terminate AVSA employees, to require them to wear uniforms and to have employees comply with general standards of performance, conduct, and appearance. However, daily supervision of the employees is solely AVSA's responsibility. Therefore, the Carriers do not control AVSA operations and the NMB should not assert jurisdiction.

III. Contentions of AVSA

The contentions of AVSA are as follows:

AVSA provides contract services and personnel directly to carriers at JFK including baggage handlers, wheelchair attendants, and skycaps. AVSA baggage handlers move checked baggage within the carriers' space. Skycaps move and check passengers' baggage to and from curbside to carriers' flight collection points. Wheelchair attendants assist passengers in need of wheelchair transport as required by the carriers.

When a company, like AVSA, does not fly aircraft for public transportation of freight or passengers, a two-part test is applied to determine RLA jurisdiction, a function test and a control test. Baggage handling, skycap and wheelchair attendant services are functions traditionally performed by employees in the airline industry. There is substantial evidence of carrier control to render AVSA subject to the RLA.

Specifically, AVSA services are directed in detail by the carriers. The carriers determine the work procedures, the employee uniforms, and employee conduct. Carriers frequently review potential employees, train employees, require identification by employees, discipline employees, and generally supervise employees.

Since AVSA employees perform work traditionally performed by air carrier employees and the carriers control AVSA operations, the NMB should assert jurisdiction.

IV. DISCUSSION

A. Applicable Legal Standard

When an employer does not fly aircraft for the transportation of freight or passengers, the NMB applies a two- part test in determining whether an employer and its employees are subject to the Railway Labor Act. Federal Express, 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. Ogden Aviation Services, 23 NMB 98 (1996).

AVSA does not fly aircraft and is not directly or indirectly owned by an air carrier. Therefore, to determine if AVSA is subject to the RLA, the NMB must consider both the work performed for, and the degree of control exercised by, its air carrier customers.

B. AVSA's Employees Perform Work

Traditionally Performed by Employees of Air Carriers

The NLRB record establishes that AVSA provides baggage handling, wheelchair attendant, and skycap services to air carriers at JFK. Many NMB decisions have found that this work is traditionally performed by air carrier employees. AVGR International Business, Inc. d/b/a United Safeguard Agency, 27 NMB 232 (2000); Quality Aircraft Services, 24 NMB 286 (1997); Service Master Aviation Services, 24 NMB 181 (1997); International Total Services, 20 NMB 537 (1993); Sky Valet, 18 NMB 482 (1991); Skycap, Inc., 13 NMB 292 (1986).

Therefore, the NMB concludes that AVSA employees perform functions which have been traditionally performed by airline employees.

C. The Carriers Exercise Substantial

Control Over AVSA

AVSA's clients at JFK include BA, UA and Tower Air, Inc. (Tower). AVSA has one contract with both BA and UA and another with Tower. (NLRB Exhibit E-1.)

The contract with BA and UA states that AVSA's services must be provided in compliance with the Carriers' requirements (BA/UA Contract, ¶ 2.2). The contract says that AVSA must tailor its provision of services to meet any new requirements of Carriers. (BA/UA Contract, ¶ 2.4.) AVSA employees do not wear the Carriers' uniforms, but they must wear uniforms agreed to by the Carriers. (BA/UA Contract, ¶ 2.6.2.) AVSA's employees' general standards of performance, conduct and appearance are set by the Carriers. (BA/UA Contract, ¶ 2.6.3.) While AVSA supervises the employees, the Carriers reserve the right to demand removal of any employee, but AVSA employees are not Carrier employees. (BA/UA Contract, ¶ 2.8.) Finally, AVSA records maintained in connection with the contract, and records on costs reimbursed and charges paid, are subject to Carrier inspection and copying. (BA/UA Contract, ¶ 8.1.)

The AVSA contract with Tower Air covers baggage handling and skycap services. (Tower Contract ¶ 1. c.) The contract says that, on Tower's written request, AVSA must remove any personnel who, in opinion of Tower, displays improper conduct or is deemed not qualified to perform. (Tower Contract ¶ 7.)

Both the BA/UA and Tower contracts give the Carriers substantial control generally. Both contracts specifically give the Carriers the power to remove any AVSA employee. (BA/UA Contract ¶ 2.8 and Tower Contract ¶ 7.) Both contracts give the carriers substantial control over the conduct and performance of AVSA employees.

The record and the submissions establish that the Carriers exercise substantial control over AVSA and its employees.

V. CONCLUSION

Based on the record in this case, and for the reasons discussed herein, the NMB's opinion is that AVSA and its employees are subject to the Railway Labor Act. This decision may be cited as 27 NMB 581 (2000).

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

William Dunn, Esq.

Mr. Martin Blake

David Mathews, Esq.