28 NMB No. 27

December 4, 2000

Mr. John E. Higgins, Jr., Solicitor

National Labor Relations Board

1099 14th Street, NW.

Washington, DC 20570-0001

Re:	NMB File No. CJ-6700

NLRB Case No. 14-RC-12171

Foreign and Domestic Car Service, Inc.

Dear Mr. Higgins:

This responds to your September 21, 2000, request for the National Mediation Board's (NMB) opinion regarding whether Foreign and Domestic Car Service, Inc. (FDCS) 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 FDCS and its employees are subject to the RLA.

I. BACKGROUND

This case arose as a result of a representation petition filed by the Automobile Transport Chauffeurs, Demonstrators and Helpers Local Union No. 604, affiliated with the International Brotherhood of Teamsters, AFL-CIO (IBT, Local 604), with the National Labor Relations Board (NLRB) on May 10, 2000. IBT, Local 604 seeks to represent a bargaining unit of all rail loaders, unloaders and scanners employed by FDCS at the Norfolk Southern Corporation's (NSC) Venice, Illinois facility (Venice facility). FDCS is engaged in loading and unloading new vehicles on and off rail cars for NSC.

The NMB's opinion is based on the information and record provided by the NLRB, which includes the post-hearing submissions of FDCS and IBT, Local 604 and position statements prepared by FDCS and IBT, Local 604 at the NMB's request.

II. CONTENTIONS OF IBT, LOCAL 604

The contentions of IBT, Local 604 are as follows:

FDCS is not subject to the RLA.

NLRB Region 14 asserted jurisdiction in two cases in which employer operations "exactly parallel" this case. Specifically, in Case Nos. 14-RC-11993 (1998) and 14-RC-12157 (2000), the NLRB asserted jurisdiction and conducted elections. These employers were "stand alone rail loading & unloading facilities supplied by an auto haul away company with the job site under direct control of the rail road involved."

FDCS is not a railroad and FDCS employees are not railroad employees. While FDCS is engaged in loading and unloading new vehicles on and off NSC rail cars at the Venice facility, NSC offered no evidence or testimony to show that the work performed by FDCS employees is work traditionally performed by railroad employees.

NSC has no ownership of FDCS and the two businesses have no corporate officers in common. NSC does not hire, fire, or directly discipline FDCS employees. FDCS establishes rates of pay and benefits for the employees. NSC does not control FDCS staffing levels or transfers. While the employee uniforms conform to industry standards, they are provided by FDCS and bear FDCS's insignia. FDCS loading and unloading policies and instructions are controlled by the NSC Manual for Loading & Unloading Autos on Railcars. This manual does not establish an NSC tariff or rate for loading and unloading rail cars. Only the shipper, Daimler Chrysler, can establish such rates. These facts show that FDCS is "one link in a transportation chain . . . no more controlled or dependent on the link before than on the one that follows." Therefore, the NMB should not assert jurisdiction.

III. CONTENTIONS OF FDCS

The contentions of FDCS are as follows:

FDCS has provided rail loading services to NSC pursuant to a contract since 1984. When a company like FDCS is not a rail carrier engaged in the transportation of freight or passengers, a two-part test is applied to determine RLA jurisdiction, a function test and a control test. The function test is met because "[t]he uncontradicted evidence presented by . . . FDCS establishes that it provides services that would traditionally be done by railroad employees, namely the inspecting and loading of motor vehicles onto railcars."

Further, NSC exercises substantial control over FDCS. FDCS employees must comply with NSC rules and regulations, including the NSC Manual for Loading & Unloading Autos on Railcars. NSC retains the right to remove FDCS employees deemed for any reason objectionable. NSC exercises control in the hiring of FDCS employees by mandatory background checks, and NSC retains the right to bar any employee from the Venice facility. NSC provides the equipment and the computers and establishes the loading operations processes. FDCS employees' work schedules are affected directly and indirectly by NSC operations. FDCS employees' work is inspected by NSC employees.

Since FDCS employees perform work traditionally performed by rail carrier employees and the NSC controls FDCS operations, the NMB should assert jurisdiction.

IV. DISCUSSION

A. 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 Railway Labor Act. Federal Express Corporation, 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).

FDCS does not operate a railroad and is not directly or indirectly owned by a rail carrier. Therefore, to determine if FDCS is subject to the RLA, the NMB must consider both the work performed for, and the degree of control exercised by, its rail carrier customer, the Norfolk Southern Railway.

The NLRB's investigation revealed that in the two cases cited by IBT, Local 604, the employers did not contest NLRB jurisdiction. In Region 14, Case No. 14-RC-11993 (1998), there was a directed election in which the employer did not contest NLRB jurisdiction. Case No.14-RC-12157 involved a stipulated election, and the employer did not contest NLRB jurisdiction. In this case, FDCS challenged the NLRB's jurisdiction and the NLRB referred the case to the NMB to determine RLA jurisdiction. Therefore, IBT, Local 604's reliance on these cases is misplaced.

B. FDCS's Employees Perform Work

Traditionally Performed by Employees of Rail Carriers

Pursuant to the contract between FDCS and NSC, FDCS receives new vehicles delivered by independently owned semi- trailer auto carriers. The vehicles are off loaded by the auto carrier drivers and parked in designated areas on the six to ten acre Venice facility. FDCS employees load and unload new vehicles on and off NSC rail cars for delivery throughout the continental United States. The Venice facility encompasses an office building, railroad tracks and loading ramps, all owned by NSC. FDCS pays no leasing fees for its use of the Venice facility.

FDCS employees enter data into NSC's computer systems regarding new automobiles that are delivered to the Venice facility railroad yard. FDCS employees inspect the vehicles and electronically scan the vehicle identification numbers (VIN's) into a scanner device which transmits the data to a central NSC computer system. When enough vehicles are collected for a particular destination, FDCS employees scan the VIN's, confirming the vehicles' destinations, and load the vehicles onto rail cars. NSC provides the office building, scanners, computer equipment, loading equipment, telephones, and FAX machines to FDCS for its operations.

The record establishes that FDCS employees operate equipment and facilities, perform services in connection with transportation, and transport and handle property transported by the railroad. (45 USC §151, First.)

Moreover, the loading and unloading of automobiles on and off rail cars is a service in connection with the transportation of freight by railroads. Union Pacific Motor Freight, 27 NMB 441 (2000); Glenway, Inc., 17 NMB 257 (1990); Inter Mobile Company, 17 NMB 223 (1990); Pacific Rail Services d/b/a Intermodal Management Services, 16 NMB 468 (1989). See also Bankhead Enterprises, Inc., 17 NMB 153 (1990).

Therefore, the NMB finds that FDCS employees perform functions which have been traditionally performed by rail employees.

C. NSC Exercises Substantial	Control Over FDCS

FDCS's sole client is the NSC. The equipment, scanners, computers, and software used by FDCS employees are owned by NSC. FDCS pays no fees to NSC for this equipment.

FDCS employee applicants must sign an affidavit permitting a background check done by NSC employees. NSC has disqualified FDCS applicants following background checks. The record also establishes that if NSC determines that an applicant or employee is unsatisfactory or objectionable, NSC notifies FDCS that the individual is barred from Norfolk Southern property. This NSC bar terminates the individual's employment with FDCS.

NSC requires FDCS employees to wear industry standard uniforms for new vehicle loading that are free from any attachments that might scratch new vehicles. FDCS determines the uniform color and insignia. If an FDCS employee damages a vehicle, NSC determines the degree of punishment based on the severity of the damage. NSC advises FDCS of the punishment and FDCS disciplines the employee.

FDCS employees are trained by NSC employees on scanners, computer systems, and administrative systems used at the Venice facility. All loading and unloading of vehicles is done pursuant to the NSC Manual for Loading & Unloading Autos on Railcars. This manual describes every step in the loading and unloading of new vehicles on and off NSC rail cars. The manual constitutes the only work rules for FDCS employees, with the exception of an FDCS policy against sexual harassment.

The NMB finds that this record establishes that NSC exercises substantial control over FDCS and its employees.

V. CONCLUSION

Based on the record in this case, and for the reasons discussed herein, the NMB's opinion is that FDCS and its employees are subject to the Railway Labor Act. This decision may be cited as 28 NMB 82 (2000).

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

C. John Holmquist, Esq.

Mr. Terry J. Manion