In the Matter of the

Application of the

INDEPENDENT RAILWAY SUPERVISORS ASSOCIATION

alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended

involving employees of

LONG ISLAND RAIL ROAD COMPANY

28 NMB No. 82

CASE NO. R-6828

(File No. CR-6718)

FINDINGS UPON

INVESTIGATION- DISMISSAL

July 17, 2001

This decision addresses the application filed by the Independent Railway Supervisors Association (IRSA) alleging a representation dispute among "In-Service Quality Assurance Temperature Surveyors" (Temperature Surveyors) working at Long Island Rail Road Company (LIRR), who are employees of Lloyd Creative Temporaries, Inc. (Lloyd). IRSA is the certified representative of the Supervisors and/or Foremen (Mechanical Department)(Supervisors of Equipment) on LIRR (NMB Case No. R-6131). IRSA asserts that the Temperature Surveyors are part of this craft or class.

For the reasons set forth below, the Board finds that the Temperature Surveyors are temporary employees of an independent contractor and cannot be an accretion to the Supervisors of Equipment craft or class. Therefore, the application is dismissed.

PROCEDURAL BACKGROUND

IRSA filed an application seeking this accretion on April 23, 2001. The investigation was assigned to Benetta M. Mansfield. On May 2, 2001, LIRR advised the Board that it could not provide a list of potential eligible voters because the individuals IRSA was seeking to accrete are not LIRR employees. On May 15, 2001, IRSA replied to LIRR's position.

On May 21, 2001, LIRR asked the Investigator for an opportunity to respond to IRSA's May 15, 2001, submission. On May 24, 2001, the Investigator advised LIRR that it had until June 11, 2001, to respond and that IRSA had until June 22, 2001, to reply to the LIRR submission. On June 11, 2001, LIRR filed its response and supplemented its original position statement. IRSA filed its reply on June 22, 2001.

ISSUE

Are the Temperature Surveyors employed by Lloyd part of the Supervisors of Equipment craft or class?

CONTENTIONS

LIRR

LIRR argues that accretion is improper. LIRR states that the Temperature Surveyors are employees of Lloyd, not of LIRR. LIRR states that IRSA filed a grievance on January 18, 1999, arguing that LIRR violated the collective bargaining agreement by contracting work normally assigned to Supervisors of Equipment to Lloyd.

LIRR further contends that Lloyd is not a carrier under the Railway Labor Act (RLA). Under the RLA, LIRR argues, a company must be "directly or indirectly owned or controlled by or under common control with any carrier by railroad. . . ." LIRR states it has no ownership interest in Lloyd and does not exercise sufficient control over Lloyd to satisfy the "control" test. LIRR states that Lloyd chooses and supplies all personnel, is responsible for hiring new employees, and retains control over employee schedules, wages, benefits, discipline, and training. Moreover, LIRR contends that Lloyd "does not retain the exclusive right to do temperature surveys."

LIRR also argues that temperature surveys are not a carrier function and, therefore, the second "function" test is not satisfied. Thus, LIRR states that from 1980 through 1999, it conducted temperature surveys only on a sporadic basis, some being taken by managers riding the train and some by the Supervisors of Equipment. In 1999, as a result of an Inspector General's report, the Inspector General directed LIRR to assure the comfort of its traveling public. Therefore, it contracted this work to Lloyd.

LIRR also contends the ruling on this accretion application should be stayed until the grievance filed by IRSA claiming that LIRR violated the collective bargaining agreement by contracting out the temperature survey work to Lloyd is ruled on by an arbitrator. LIRR claims the issue is a minor dispute under the RLA and, therefore, the representation matter should be delayed pending arbitration.

IRSA

IRSA agrees that the Temperature Surveyors are employed by Lloyd but states that LIRR exercises control over the work. Therefore, Lloyd comes under RLA jurisdiction. IRSA states that beginning in 1980, LIRR began temperature surveys on railroad cars and assigned this work to the Supervisors of Equipment. Therefore, temperature survey work is an LIRR "function." IRSA states that in January 1999, LIRR contracted out the work to Lloyd. IRSA notes that it filed a grievance over the loss of its members' work.

IRSA also argues that LIRR "controls" the Lloyd employees by spot checking their work, correcting the work, effectively recommending discipline and conducting disciplinary proceedings on LIRR property, using LIRR equipment to perform the work, following guidelines established by LIRR, training the employees, controlling Lloyd payroll of the LIRR-assigned employees, and exercising strong contractual control.

IRSA alternatively argues, however, that it does not seek to represent the Lloyd employees directly but seeks an accretion of the Lloyd employees performing temperature surveys into the IRSA-represented craft or class.

IRSA states that the Temperature Surveyors should be accreted into the IRSA-represented craft or class because they share a community of interest with the craft or class. IRSA cites recent decisions by the National Labor Relations Board (NLRB) which found joint employer status among jointly employed temporary employees and an employer's regular employees. M.B. Sturgis, 331 NLRB 173 (2000) and Professional Facilities Management, 332 NLRB 40 (2000). IRSA states that similar rationale should be applied under the RLA. IRSA states that "it would serve the policy behind the RLA to adopt a joint employer test given the dramatic changes in the work force since the RLA was enacted." Thus, IRSA contends that the NMB should find that LIRR is a joint employer of the temporary employees employed by Lloyd.

Finally, IRSA states that there is no support for LIRR's argument that the matter should be delayed pending arbitration of the grievance filed against LIRR by IRSA.

FINDINGS OF LAW

Determination of the issue in this case is governed by the Act, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:

I.

LIRR is a common carrier by rail as defined in 45 U.S.C. § 151, First.

II.

IRSA is a labor organization or representative as provided by 45 U.S.C. §152, Ninth.

III.

45 U.S.C. § 152, Fourth, gives employees subject to its provisions, "the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter."

IV.

45 U.S.C. § 152, Ninth, provides that the Board has the duty to investigate representation disputes and to designate who may participate as eligible voters in the event an election is required.

FINDINGS OF FACT

I.

LIRR is a commuter railroad. Sometime in the early 1980s, LIRR began an informal process of taking temperature readings with thermo hygrometers (temperature probes) in railroad cars. In the railroad yard with no passengers on the railroad cars, readings were taken by the Supervisors of Equipment. Temperature readings inside the cars were also taken sporadically by LIRR managers and Supervisors of Equipment during their own commutes. There does not appear to have been a formal program of conducting temperature surveys inside the railroad cars.

On November 4, 1998, the Inspector General issued a report on an LIRR railroad car temperature study. The study found that the system for taking car temperatures was somewhat random, and that LIRR did not keep consistent information. The study also found that the majority of temperature readings were in yard readings conducted by the Supervisors of Equipment. The report found the following regarding the Supervisors of Equipment (referred to as QAs):

Quality Assurance managers indicated to us that QA is understaffed and that the burden of collecting temperature data has impacted the QA's other capabilities. This limits the use of their skills in maintaining the HVAC systems. QA estimated that temperature readings require one full-time staff position. If the in-service data were collected under a sampling procedure designed to reflect actual service patterns, the expense would be greater.

The report recommended that LIRR needed to "[i]ncrease the availability of QA technicians for more skilled quality assurance work by transferring the responsibility of temperature data collection to less skilled, perhaps part time, staff or consider contracting out the temperature data collection function."

On December 17, 1998, LIRR entered into an agreement with Lloyd for a three-year contract to count passengers and take temperature readings on the railroad cars.

II.

Lloyd is a company which provides temporary employees to numerous organizations. According to Judy Bayliss, Lloyd Vice President, in addition to LIRR, Lloyd's clients include Citibank, Morgan Stanley Dean Witter, Long Island Jewish Health System, and Arrow Electronics. Lloyd has approximately 2,000 temporary employees who are assigned to clients in a range of service areas.

Bayliss states that in the contract between Lloyd and LIRR, LIRR establishes the number of cars to be surveyed over a period of months, ranging monthly from 600 to 1,200 cars. Lloyd then determines how many Temperature Surveyors it will need and sets up the work schedules. The choice of trains is made by Lloyd and the assignment of Lloyd employees to the trains is made by Lloyd. Lloyd instructs the employees on the use of the temperature probe and explains how the job is done. Lloyd conducts on-site evaluations of the Temperature Surveyors and reviews the Temperature Surveyors' reports. Lloyd pays the employees $9 per hour, hires, and assigns the employees. Lloyd assigns anywhere from five to thirteen people to these assignments. The Lloyd employees assigned to LIRR work, according to Bayliss, "also work for other companies during the week."

III.

On January 18, 1999, IRSA filed a grievance with LIRR stating that the contracting out of the temperature surveyor work violated its collective bargaining agreement with LIRR. As stated in the grievance, IRSA's position is:

Actions taken by the Department clearly show its intentions to union bust and have outside employees perform our members work at a much lower cost to [LIRR]. . . .

Part of the duties of the Grievants/Claimants has always been to inspect, verify, analyze and reduce to writing the results of their surveys. . . .

IRSA demanded that LIRR cease using this or any other contractor to perform IRSA work.

On April 9, 1999, Donna Simonie, LIRR's Director of Labor Relations, Arbitral Affairs, and Regulatory Advice, responded denying the grievance. LIRR's response denies violating the collective bargaining agreement and states, in part:

Carrier does not deny that Supervisors of Equipment have performed the work in question. Carrier, in fact acknowledges that Supervisors of Equipment have performed in-service temperature surveys. This, however, does not give Supervisors of Equipment the exclusive right to the work. During the appeal it was revealed that various management employees have also performed in-service temperature surveys.

On April 24, 1999, IRSA requested the establishment of a Public Law Board to resolve the issue.

IV.

Both LIRR and IRSA submitted job descriptions for Supervisors of Equipment. The LIRR submission is a "Promotion Bulletin" which sets forth the major responsibilities of the position as follows:

•	Provide technical support and instruction to shop supervision and craft personnel in troubleshooting techniques, upgrading craft skills and introducing new techniques consistent with current methods.

•	Perform equipment testing and inspection on fleet components, modifications and new methods. Provide analysis and recommendations for review and implementation.

•	Design, build and test possible modifications for fleet equipment.

•	Provide technical data, field testing and follow -up work for various fleet operation activities.

The requirements of the position include:

•	Must have thorough knowledge of electrical, mechanical and pneumatic circuitry as well as knowledge of components and an understanding of how they interface for railroad application.

•	Knowledge of quality control principles and practices and technical training with regard to ATC, AC, heat, propulsion, air brakes, doors & auxiliary power, diesel engines.

•	Familiarity with AAR rules and regulations and application to fleet operations.

•	Analytical and problem-solving skills are required.

•	Minimum of 5 years related technical experience.

The salary for the position is $48,671 to $ 60,839.

IRSA submitted a "Job Description Questionnaire" dated September 1995, which lists the major activities of the position and the percentage of time spent at the activity as follows:

•	Supervise, coordinate and conduct various quality inspections on PI's, LCM, overhauls, repairs or car cleaning. (30%)

•	Determine the need for where quality improvement is essential (customer focused) and act to ensure that the obstacles to improvement are eliminated. (15%)

•	Coordinate and conduct random surveys on various systems, sub-systems and components. (10%)

•	Administrative duties: provide reports and trend analysis from raw data gathered from actual inspections and surveys. (10%)

•	Review, analyze and upgrade QC/CA activities and procedures on both equipment and component repair and maintenance activities. (10%)

•	Draw-up, document, maintain and distribute the standard for any maintenance activities when required. (10%)

•	Provide training to craft when requested and required based on personal knowledge and expertise. (10%)

•	Participate in various task forces . . . . (5%)

V.

Lloyd and LIRR entered into the three-year contract in 1998. Under the agreement, Lloyd hires the temporary personnel, sets their schedules, and determines their wages. LIRR's Supervisors of Equipment trained the first group of Lloyd employees on how to take temperature surveys and make out the reports. Thereafter, Lloyd personnel took over the training. LIRR developed the training handbook.

LIRR provides Lloyd with the train schedules and train numbers, and dictates the number of cars to be surveyed in a week. LIRR reviews the monthly invoices from Lloyd and compares the invoices to the temperature survey reports from Lloyd employees. On at least one occasion, discrepancies were found and Lloyd may have withheld payroll to its employees based upon these discrepancies. Lloyd supervisors conduct daily on- site checks of temperature survey work. Occasionally Supervisors of Equipment also spot check Lloyd employees work on-site.

On at least two occasions, LIRR has asked that Lloyd employees no longer be assigned to LIRR work and Lloyd has removed the employees from LIRR service. LIRR provides the Lloyd workers with the temperature probes and safety vests.

The Lloyd employees receive $9 per hour and only work part-time at the LIRR.

DISCUSSION

I.

Work-Related Community of Interest

In determining the appropriate craft or class on a particular carrier, the Board examines a number of factors. These factors include functional integration, work classifications, terms and conditions of employment, and work-related community of interest. Continental Airlines, Inc./Continental Express, Inc., 26 NMB 143 (1999); USAir, 15 NMB 369 (1988); British Airways, Inc., 10 NMB 174 (1983). The factor of work-related community of interest is particularly important. Continental, above; United Airlines, 10 NMB 458 (1983); Airborne Express, Inc., 9 NMB 115 (1981). The Board makes its craft or class determinations on a case by case basis. USAir, above; Simmons Airlines, 15 NMB 124 (1988); Continental Airlines, Inc., 8 NMB 709 (1977); Eastern Air Lines, Inc., 6 NMB 561 (1978).

In order to have an accretion of employees into a craft or class, the employees must have an employer-employee relationship with the carrier. Contractor employees do not have an employment relationship. Therefore, the NMB finds contractor employees ineligible to vote in craft or class elections. NMB Representation Manual (Manual) Section 5.309 states: "Individuals working for an independent subcontractor not part of the transportation system comprising the system of the carrier are ineligible."

The employees of Lloyd are contractor employees. Therefore, a community of interest with the LIRR Supervisors of Equipment craft or class is irrelevant.

II.

RLA Jurisdiction and Joint Employer Relationship

In view of the Board's finding that the Temperature Surveyors are contractor employees, it is unnecessary to address whether the NMB considers Lloyd and its employees subject to RLA jurisdiction. There is no evidence that IRSA otherwise seeks to represent the Lloyd employees.

It is similarly unnecessary to determine if the NMB would find an accretion based upon a "joint employer" theory, since the employees at issue could not be accreted into the Supervisors of Equipment craft or class.

III.

Deferral to Arbitration

Section 2, Ninth, of the RLA establishes the exclusive authority of the NMB to determine the chosen representative of employees. See Switchmen's Union v. NMB, 320 U.S. 297 (1943). Therefore, the NMB does not delay determinations pending resolution of the grievance-arbitration procedure.

CONCLUSION

The Lloyd employees who conduct temperature surveys for LIRR are not properly an accretion to the Supervisors of Equipment craft or class. Accordingly, the application is converted to Case No. R-6828 and dismissed.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copies to:

Mr. John Bernet

Mr. G.M. Moran

Mr. S.M. Drayzen

Mr. Ralph J. Domenici

Mercedes M. Maldonado, Esq.