ALI-ABA Course of Study Airline and Railroad Labor and Employment Law October 30 - November 1, 2008 Washington, D.C.
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1 17 ALI-ABA Course of Study Airline and Railroad Labor and Employment Law October 30 - November 1, 2008 Washington, D.C. Representation Issues under the Railway Labor Act By Ronald P. Wilder, Jr. Stefan P. Sutich Baptiste & Wilder, P.C. Washington, D.C.
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3 19 REPRESENTATION ISSUES UNDER THE RAILWAY LABOR ACT Roland P. Wilder, Jr., Stefan P. Sutich PART I PRELIMINARY I. STATUTE: The Railway Labor Act (45 U.S.C. 151 et seq.) A. GENERAL PURPOSES: 151 (a) B. RIGHT TO ORGANIZE: 152, Third, Fourth, Fifth, Ninth 1. Choice of Representatives: 152, Third 2. Organization and Collective Bargaining: 152, Fourth 3. Agreements Not To Join Prohibited: 152, Fifth 4. Representation Dispute Procedures and the NMB: 152, Ninth II. INTERPLAY WITH THE NLRA: COMITY AND GUIDANCE BY ANALOGY A. INTERCHANGE BETWEEN ACTS 1. National Mediation Board s assertions of jurisdiction over employer activity and employees engaged therein honored by National Labor Relations Board. Air Cargo Transp., 289 N.L.R.B. 176 (1988); DHL Corp., 260 N.L.R.B. 17 (1982). See Chicago Truck Drivers v. NMB, 670 F.2d 665 (7th Cir. 1982). 2. UPS/FedEx: NLRA or RLA? What is required to be a Carrier? a. Federal Express Corp., 323 N.L.R.B. No. 157 (1997) (Federal Express trucking employees are not subject to LMRA; NMB has determined that it has jurisdiction; operation is integrally related to company s air operations). b. NLRB properly declined to certify to NMB issue of whether UPS drivers and package employees were subject to LMRA or RLA. UPS v. NLRB, 92 F.2d 1221 (D.C. Cir. 1996). Rev d 9/5/08
4 20 c. NLRB asserts jurisdiction over UPS despite claim it is subject to jurisdiction of the NMB. UPS of Ohio, 321 N.L.R.B. 300 (1996). d. NMB declines to assert jurisdiction over sorters and drivers working for a carrier under a Postal contract with the carrier where the carrier did not have the authority to supervise and direct the employees. Emery Worldwide Airlines, Inc., 28 N.M.B. 216 (2001). B. EFFECT OF NLRB CERTIFICATION NLRB certification not binding upon NMB due to the two Acts dissimilar defining characteristics of employee bargaining groups; NLRB certification not directly transferable to RLA covered carrier. Air Florida, Inc., 7 N.M.B. 261 (1979). C. APPLICABILITY OF NLRA CASES While employers covered by the Railway Labor Act are not subject to the provisions of the NLRA, the NLRA and cases interpreting it nevertheless provide some guidance in the interpretation of certain provisions of the Railway Labor Act. ALPA v. United Airlines, Inc., 802 F.2d 886, 898 (7th Cir. 1986); Trans International Airlines, Inc. v. International Brotherhood of Teamsters, 650 F.2d 949 (9th Cir. 1980), cert. denied, 449 U.S (1981). See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383, reh. denied, 394 U.S (1969); Adams v. Federal Express Corp., 547 F.2d 319 (Cir. 1976), cert. denied, 431 U.S. 915 (1977), on remand, 470 F. Supp. 1356, 1361 (W.D. Tenn. 1979), aff d, 654 F.2d 452 (6th Cir. 1981). See also Steele v. Louisville & N.R.R., 323 U.S. 192, (1944); Eastern Airlines, Inc., 9 N.M.B. 285 (1982); Felter v. Southern Pac. Co., 359 U.S. 326, 332 n.10 (1959); Laker Airways, Ltd., 8 N.M.B. 236 (1981). Cf. Ground Services, Inc. 8 N.M.B. 112 (1980) (joint employer concept adopted). But see US Airways, Inc., 28 N.M.B. 91 (2000) (RLA and NLRA are different statutes and no rule requires NMB to accept NLRB policy as dispositive of disputes under RLA). Accord, Compass Airlines, 35 N.M.B. 14, 19 (2007). III. COVERAGE: JURISDICTION UNDER THE RLA A. CARRIERS 1. Carrier. Case law calls for a two-part-test: ownership or control and company s functions vis-à-vis transportation. Board must apply statutory test in a rational and reviewable manner. Longshoremen v. NMB, 870 F.2d 733 (D.C. Cir. 1989); Delpro Company v. Railway Carmen, 519 F
5 21 Supp. 842 (D. Del. 1981), aff d, 676 F.2d 960 (3d Cir. 1982), cert. denied, 459 U.S. 989 (1983). 2. NMB Decisions: Rail Link, 35 N.M.B. 250 (2008); Swissport USA, Inc., 35 N.M.B. 190 (2008); PrimeFlight Aviation Services, Inc., 34 N.M.B. 175 (2007); Bradley Pacific Aviation, Inc., 34 N.M.B. 119 (2007); Dobbs Int l Services d/b/a Gate Gourmet, 34 N.M.B. 97 (2007); Signature Flight Support, 34 N.M.B. 1 (2006); Air Serv Corp., 33 N.M.B. 272 (2006); Aircraft Services Int l Group, Inc., 33 N.M.B. 258 (2006); Aircraft Services Int l Group, Inc., 33 N.M.B. 200 (2006); Signature Flight Support, 32 N.M.B. 214 (2005); Signature Flight Support/Aircraft Service Int l, Inc., 32 N.M.B. 30 (2004); John Menzies, PLC d/b/a Ogden Services, Inc., 31 N.M.B. 490 (2004); Inter-Rail Transp. of Jacksonville, LLC, 31 N.M.B. 478 (2004); Georgia Ports Auth., 31 N.M.B. 303 (2004); Holland America Westours, 29 N.M.B. 140 (2002); Trux Transp., Inc. d/b/a/ Trux Airline Cargo Services, 28 N.M.B. 518 (2001); Aeroground, Inc., 28 N.M.B. 510 (2001); Globe Aviation Services, 28 N.M.B. 41 (2000); Quality Aircraft Services, 24 N.M.B. 286 (1997); Service Master Aviation Services, 24 N.M.B. 186 (1997); Welch Aviation, Inc., 21 N.M.B. 329 (1994); TNT Skypak Inc., 20 N.M.B. 153 (1993); Caribbean Airline Services, Inc., 19 N.M.B. 242 (1992); SAPADO I, (Dobbs International Services), 18 N.M.B. 525 (1991); Intertec Aviation, L.P., 17 N.M.B. 487 (1990); E.G. & G. Special Projects, Inc., 17 N.M.B. 457 (1990); C.W.S., Inc., 17 N.M.B. 371 (1990); Glenway, Inc., 17 N.M.B. 257 (1990); Sky Valet, 17 N.M.B. 250 (1990); Intermobile Company, 17 N.M.B. 223 (1990); Bankhead Enterprises Inc., 17 N.M.B. 153 (1990); Pacific Rail Services d/b/a Intermodal Management Services, 16 N.M.B. 468 (1989); Florida Express Carrier, Inc., 16 N.M.B. 407 (1989); Jimsair Aviation Services, Inc., 15 N.M.B. 25 (1988); Sky Chefs, Inc., 15 N.M.B. 397 (1988); Prospect Airport Services, Inc., 15 N.M.B. 70,72 (1988); New York Interstate Service, Inc., 14 N.M.B. 439 (1987); Counsel For Airport Opportunity, 14 N.M.B. 251 (1987); Energy Support Services, Inc., 14 N.M.B. 326 (1987); Allied Maintenance Corp., 13 N.M.B. 255 (1986); Ohio Barge Line, Inc., 11 N.M.B. 290 (1984); International Aviation & Travel Academy, 10 N.M.B. 481 (1983); Cybernetics & Systems, Inc., 10 N.M.B. 108 (1983). 3. Interstate Commerce Act or the Department of Transportation or Federal Aviation Administration reporting requirements and/or regulation may affect jurisdiction. Holland America Westours, 29 N.M.B. 140 (2002); UTDC Transit Services, Inc., 17 N.M.B. 343 (1990); Tri County Community Rail Organization, 17 N.M.B. 321 (1990). See also SIRTOA - 3 -
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