Evergreen Aviation

National Labor Relations Board - Board Decisions

Mar 15, 1999

327 N.L.R.B. 869 (N.L.R.B. 1999)

EVERGREEN AVIATION GROUND LOGISTICS ENTERPRISES 869
Evergreen Aviation Ground Logistics Enterprises,
Inc. and Transportation Workers Union of
America, Local 500, AFL–CIO, Petitioner. Case
12–RC–8202
March 15, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On March 2, 1998, the Petitioner filed a petition seek-
ing to represent all full-time and regular part-time main-
tenance employees, including service mechanics, fuelers,
painters, mechanic helpers, ramp service agents, and air-
craft cleaners, employed at Miami International Airport
(MIA), Miami, Florida. The Employer asserts that it is
subject to the Railway Labor Act (RLA) and therefore
the jurisdiction of the National Mediation Board (NMB)
because: (1) its employees perform traditional airline
work and (2) their work is controlled by carriers and/or
the Employer is owned by or in common with a carrier
recognized by the NMB. Therefore, the Employer ar-
gues that the National Labor Relations Board (the Board)
lacks jurisdiction under Section 2(2) of the National La-
bor Relations Act. After a hearing, the Regional Director
transferred the proceeding to the Board.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
On the entire record in this case, the Board finds:
The Employer is a wholly owned subsidiary of Ever-
green International Aviation, the parent corporation,
which also owns various other subsidiaries including two
air carriers, Evergreen International Airlines and Ever-
green Helicopters International.
The record establishes that the Employer provides
ground services at 20 domestic airports, including MIA.
The Employer’s employees perform aircraft loading and
unloading, aircraft cleaning, passenger service, and air-
craft/airport ground equipment maintenance for airlines.
The Employer also employs licensed dispatchers who
prepare flight information for aircraft crews.
The evidence reflects that common carriers exercise
varying degrees of control over the Employer’s employ-
ees. The Employer’s ramp employees working with Ev-
ergreen International Airlines are subject to Evergreen’s
standards and to the direct control of an Evergreen load-
master. Certain carriers monitor the Employer’s em-
ployees’ performance for timeliness. Carrier employees
oversee the Employer’s employees’ performance of
cabin cleaning duties and sometimes direct that work be
redone. Certain carriers employing the Employer’s ramp
employees train them. The Employer’s passenger service
employees work directly with MartinAir managers at the
carrier’s Miami ticket counters and gates, use MartinAir
equipment, and wear uniforms required by MartinAir.
While the Employer has the authority to assign, trans-
fer, promote, discipline, and fire its own employees, car-
riers’ recommendations of discharge and discipline have
resulted in reassignment, further training, and discharge.
At the hearing, the Employer’s vice president testified
that there are no instances of Eagle not discharging an
employee when directed to do so by a carrier. Eagle
does its own hiring, but some carriers interview and ap-
prove passenger service agents before the Employer hires
them. The Employer generally trains its own employees,
but it does so in accordance with the procedures set by
the carriers. Occasionally, the carriers will train Eagle
employees. Eagle considers carrier input when evaluat-
ing its employees’ job performance. Carriers also are
consulted and approve of promotions of certain Eagle
employees to supervisory positions.
Section 2(2) of the National Labor Relations Act pro-
vides that the term “employer” shall not include “any
person subject to the Railway Labor Act.” 29 U.S.C.
Section 152(2). Similarly, Section 2(3) of the Act pro-
vides that the term “employee” does not include “any
individual employed by an employer subject to the Rail-
way Labor Act.” 29 U.S.C. 153(3). The RLA, as
amended, applies to rail carriers and 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 Gov-
ernment, and every air pilot or other person who per-
forms any work as an employee or subordinate official
of such carrier or carriers, subject to its or their continu-
ing authority to supervise and direct the manner or ren-
dition of his service. [45 U.S.C. Sec. 151 First and
181.]

The RLA was extended to carriers by air by amendments
enacted in 1936.
On April 27, 1998, the Board requested that the NMB
study the record in this case and determine the applica-
bility of the RLA to the Employer. The NMB subse-
quently issued an opinion indicating that, in its view, the
Employer and its employees are subject to the RLA.
Evergreen Aviation Ground Logistics Enterprises, 25
NMB No. 121 (1998).1

1 The NMB uses a two-pronged jurisdictional analysis where the
company is a separate corporate entity and does not fly aircraft for the
public transportation of freight or passengers. Under the first prong of
the test, known as the “ownership or control” prong and derived from
the language of the Railway Labor Act, the NMB determines whether a
common carrier exercises direct or indirect ownership or control of the
entity. Thus, 45 U.S.C. δ 151 First and 181 states that “the term ‘car-
rier’ includes . . . any company which is directly or indirectly owned or
controlled by or under common control with any carrier.” Delpro Co. v.
Railway Carmen, 519 F.Supp. 842, 848 and fn. 14 (D.C.Del.1981),
affd. 676 F.2d 960 (3d Cir. 1982), cert. denied 459 U.S. 989 (1982).
See also Ground Services, Inc., 7 NMB 509, 509–510 (1980). The
second prong of the test, known as the “function” prong, is also derived
from 45 U.S.C. δ 151 First. For the NMB’s jurisdiction to attach to the
noncarrier under the carrier’s control, the RLA states that the entity
must be one “which operates any equipment or facilities or performs
any service . . . in connection with the transportation, receipt, delivery
. . . transfer in transit . . . and handling of property transported.” Delpro
327 NLRB No. 156
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 870
Having considered the facts set forth in light of the
opinion issued by the NMB, we find that the Employer is
engaged in interstate common carriage so as to bring it
within the jurisdiction of the NMB pursuant to Section
201 of Title II of the RLA. Accordingly, we shall dis-
miss the petition.
ORDER
It is ordered that the petition in Case 12–RC–8202 be
dismissed.

MEMBER LIEBMAN, concurring.
I agree with my colleagues in deferring to the opinion
of the National Mediation Board (NMB) that the Em-
ployer and its employees are subject to the Railway La-
bor Act (RLA) on the grounds, as discussed by my col-
leagues and the NMB in its opinion,1 that (1) the work
functions performed by the Employer’s employees are
functions that are traditionally performed by employees
in the airline industry and (2) the Employer’s operations
and employees are controlled by a carrier or carriers sub-
ject to the RLA. I would also find that the Employer is
subject to the RLA on the grounds that it is “under com-
mon control with” carriers subject to the RLA.2 Specifi-
cally, the record establishes that the Employer is a
wholly owned subsidiary of Evergreen International
Aviation, Inc. (Aviation), a parent company which is not
an air carrier, but which also wholly owns Evergreen
International Airlines (Airlines) and Evergreen Helicop-
ters International (Helicopters), both of which are air
carriers subject to the RLA. Therefore, since the Em-
ployer is controlled by the same corporate parent as Heli-
copters and Airlines, the Employer is “under common
control with” carriers subject to the RLA. I would find
that the Employer is subject to the RLA on this basis as
well.

Co., supra, 676 F.2d at 964. In this part of the test, the NMB deter-
mines whether the work is traditionally performed by employees of air
or rail carriers. The NMB requires that both prongs of the test be met
in order for it to assert jurisdiction under the RLA. United Parcel
Service, 318 NLRB 778, 779–780 fn.7 (1995), enfd. 92 F.3d 122 (D.C.
Cir. 1996). In its opinion, the NMB concluded that both prongs of the
test had been met.
1 25 NMB (No. 121) (1998).
2 Sec. 1, First of the RLA provides, inter alia, that “[t]he term ‘car-
rier’ includes . . . any company which is . . . under common control
with any carrier.”

327