ServiceMaster Services

National Labor Relations Board - Board Decisions

May 15, 1998

325 N.L.R.B. 786 (N.L.R.B. 1998)

786
325 NLRB No. 151
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 de-
termines whether a common carrier exercises direct or indirect own-
ership or control of the entity. Thus, 45 U.S.C. § § 151 First and 181
state that ‘‘the term ‘carrier’ includes . . . any company which is
directly or indirectly owned or controlled by 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. § 151 First. For NMB’s juris-
diction to attach to the noncarrier under the carrier’s control, the
RLA states that the entity must be one ‘‘which operates any equip-
ment or facilities or performs any service . . . in connection with
the transportation, receipt, delivery . . . transfer in transit . . . and
handling of property transported . . .’’). Delpro Co., supra, 676 F.2d
at 964. In this part of the test, the NMB determines whether the
work is traditionally performed by employees of air or rail carriers.
ServiceMaster Aviation Services and Allied Services
Division, Transportation Communications
International Union, AFL–CIO, Petitioner.
Case 5–RC–14385
May 15, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND BRAME
On August 7, 1996, the Petitioner filed a petition
seeking to represent all full-time and regular part-time
skycaps employed by the Employer at National Airport
in Washington, D.C. The Employer asserts that it is di-
rectly controlled by American Airlines, a common car-
rier subject to the jurisdiction of the Railway Labor
Act (RLA), and that, therefore, the National Labor Re-
lations Board (the Board) lacks jurisdiction under Sec-
tion 2(2) of the National Labor Relations Act (the
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:
American Airlines (American) contracts with
ServiceMaster Aviation Services (the Employer or
SAS), a company that provides aviation services to
commercial air carriers, with respect to skycaps and re-
lated services.
The uncontroverted evidence reveals that American
exercises extensive control over almost all aspects of
the operation of SAS as it relates to supplying skycaps
and related services to American. SAS utilizes Ameri-
can’s job descriptions and trains its employees pursu-
ant to programs specified by American. In fact, many
SAS employees are trained at American’s training fa-
cility in Ft. Worth, Texas.
It is also undisputed that SAS submits all personnel
information concerning each applicant for employment
to American for its approval before new employees are
permitted to begin work. Moreover, American has the
right to audit or inspect SAS’s personnel records and,
should American and SAS terminate their contractual
relationship, all SAS’s personnel records become the
property of American.
The uncontroverted evidence further reveals that
American determines both the staffing levels and
scheduling of SAS employees, requires them to con-
sistently perform their work in accordance with Ameri-
can’s ‘‘Specification Documents,’’ routinely evaluates
SAS employees, and has the unfettered right to remove
any employee who does not meet its qualifications in
any respect. Further, American requires SAS employ-
ees to wear American Airlines uniforms and to appear
to the public as American Airlines employees. Al-
though SAS purchases and provides its employees with
these uniforms, they must conform to American’s
specifications. Additionally, the SAS employees’ name
tags bear the American Airlines logo. Moreover, all
equipment used by SAS employees is the property of
American Airlines and American provides SAS’ gen-
eral manager, Ronald Eugene Pepper, with the office
space he requires.
Section 2(2) of the National Labor Relations Act
provides that the term ‘‘employer’’ shall not include
‘‘any person subject to the Railway Labor Act.’’ 29
U.S.C. § 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
Railway Labor Act.’’ 29 U.S.C. § 152(3). The Railway
Labor Act (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 Government, and every air pilot or
other person who performs any work as an em-
ployee or subordinate official of such carrier or
carriers, subject to its or their continuing authority
to supervise and direct the manner or rendition of
his service.
45 U.S.C. § 151 First and 181. The Railway Labor Act
was extended to carriers by air by amendments enacted
in 1936.
On November 7, 1996, the Board requested that the
National Mediation Board (NMB) study the record in
this case and determine the applicability of the Rail-
way Labor Act to the Employer. The NMB subse-
quently issued an opinion indicating that, in its view,
the Employer is a carrier subject to the Railway Labor
Act. ServiceMaster Aviation Services, 24 NMB 186
(1997).1
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787SERVICEMASTER AVIATION SERVICES
The NMB requires that both prongs of the test must 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.
2 Contrary to the implication of the dissent, the NMB here did not
make any ‘‘sweeping assertions of jurisdiction.’’ It simply applied
its traditional two-part jurisdictional test. See ServiceMaster Avia-
tion, supra, 24 NMB at 187–190.
3 The Board cited Pan American World Airlines v. Carpenters, 324
F.2d 217 (9th Cir. 1963), cert. denied 376 U.S. 964 (1964), as sup-
port.
4 Applying the Trans World Airlines test, our dissenting colleague
concludes that the skycaps petitioned for here bear a relationship
‘‘tangential at best’’ to American’s air carrier function. Regardless
of the applicability of that test, we disagree. Surely, most passengers
would attest that skycaps bear a ‘‘substantial’’ or ‘‘direct connec-
tion’’ to an airline’s transportation functions. Although a passenger
might well arrive at the airport via taxi cab or purchase food, news-
papers, and souvenirs from vendors within the airline terminal, the
services provided directly by these cabdrivers and vendors to the
passengers do not, as our dissenting colleague suggests, have the
same relationship to the airline’s transportation function as do the
skycaps herein. Among other things, skycaps assure that the pas-
senger’s baggage is placed on the proper flight, arrives at the proper
destination at the correct time, and is properly claimed. True, the
skycaps do not pilot the plane or serve the meals. But, most defi-
nitely they provide an integral, direct, transportation related service
to airline passengers by handling their baggage, all of which has
been, or ultimately will be, transported by the carrier itself. We
agree that the cabdrivers and vendors have a tangential relationship
to air transportation. Indeed, the relationship is purely coincidental,
as their activities could be carried out anywhere. On the other hand,
skycaps, by definition, work at an airport and are directly related to
air transportation. The closest analogy is to the railroad station porter
who has traditionally been covered by the RLA and whose work is
integrally and directly related to rail transportation. St. Paul Union
Depot Co., 1 NMB 181 (1940).
Having considered the facts set forth above in light
of the opinion issued by the NMB, we find that the
Employer is engaged in interstate air common carriage
so as to bring it within the jurisdiction of the NMB
pursuant to Section 201 of Title II of the Railway
Labor Act. Accordingly, we shall dismiss the petition.
Unlike our dissenting colleague, we defer to the
NMB’s determination that it has jurisdiction. Although
our dissenting colleague refers in passing to the two-
part jurisdictional test that the NMB properly applied,2
he rejects the NMB’s conclusion in this case. Essen-
tially relying on a test set out in Trans World Airlines,
211 NLRB 733 (1974), he would find that the NMB
has jurisdiction ‘‘only when the employees perform
services which have a substantial connection to a car-
rier’s operations.’’ In Trans World Airlines, the Board
addressed the jurisdictional question with regard to pe-
titioned-for employees who were directly employed by
the air carrier but worked at the employer’s visitors in-
formation center at the Cape Canaveral Space Center
providing support services for visitor tours of the
Space Center. Concluding that the employees were in
no way engaged in activity involving airline transpor-
tation functions, the Board said that ‘‘there must be a
more direct connection between the employees and the
transportation function so as to warrant the special
considerations for which Congress enacted the Railway
Labor Act.’’3
The ‘‘substantial’’ or ‘‘direct connection’’ test es-
sentially relied on by our dissenting colleague derives
from and applies in cases, like Trans World Airlines,
where the petitioned-for employees are employed di-
rectly by an air carrier. In those cases, the jurisdic-
tional issue arises because the work of the petitioned-
for employees allegedly bears such a tenuous, neg-
ligible, or remote relationship to the carrier’s transpor-
tation activities.4 See Pan American World Airlines v.
Carpenters, supra, 324 F.2d at 221 fn. 3. By contrast,
in cases such as this one, where the petitioned-for em-
ployees are employed by a separate corporate entity
that does not fly aircraft for the public transportation
of freight or passengers, the proper jurisdictional test
is the two-pronged test derived from the Railway
Labor Act itself and used by the NMB here. The
Board made this distinction in System One Corp., 322
NLRB 732 (1996), where it applied the NMB’s two-
part test and found that the respondent was not subject
to the jurisdiction of the RLA. In so finding, the Board
pointed out that, contrary to the judge, it was not ap-
plying the Trans World Airlines test, ‘‘because the in-
stant case does not involve employees employed di-
rectly by an air carrier.’’ Id. at fn. 6.
Contrary to our dissenting colleague, we do not per-
ceive any incongruity in the application of the NMB’s
jurisdictional test for noncarriers and our own jurisdic-
tional test for carriers. Where the Board has asserted
jurisdiction over carriers, it has done so only when the
employees in the petitioned-for unit did not perform
transportation related services within the purview of
the RLA. See Trans World Airlines, 211 NLRB 733
(1974). Where the NMB asserts jurisdiction over non-
carriers, it does so only when the carrier sufficiently
controls what the NMB, in its expertise, determines to
be the traditionally transportation-related work of the
employees in the petitioned-for unit. See footnote 1,
supra. Both tests, although applied to different types of
employers, focus on the relationship between the work
performed by the employees and the transportation ac-
tivities covered by the RLA. The differing standards
allow both agencies to avoid assumptions about juris-
diction based solely on the identity of the employing
entity. Thus, the Board’s test assures that employees
are not denied the protections of the NLRA simply be-
cause they are employed by a carrier and the NMB’s
test assures that the carriers’ transportation function is
not unduly hampered simply because the particular
employees who perform integrally related functions
under the carriers’ control work for a noncarrier.
Lastly, our dissenting colleague also claims that
work performed by the petitioned-for employees
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788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I dissented from the referral. In my view, the Board has the au-
thority, the expertise, and the responsibility to decide matters of its
own jurisdiction in cases initiated before it. See my dissenting opin-
ion in Federal Express Corp., 317 NLRB 1155 (1995).
2 24 NMB 186 (1997).
3 Teamsters Local 25 v. New York, New Haven & Hartford Rail-
road Co., 350 U.S. 155, 159 (1956).
4 See those cases involving jurisdiction over the Federal Express
Corporation: 317 NLRB 1155 (1995); 23 NMB 32 (1995); and 323
NLRB 871 (1997).
5 Pan American World Airways v. Carpenters, 317 F.2d 217, 219
(9th Cir. 1963).
6 45 U.S.C. § 151 First.
7 45 U.S.C. § 181 provides that ‘‘All of the provisions of sub-
chapter I of this chapter except section 153 of this title, are extended
to and shall cover every common carrier by air.’’
8 Federal Express Corp., 23 NMB 32, 71 (1995). When the em-
ployer is not itself an air carrier, as in the instant case, the NMB
determines jurisdiction through a two-part test. First, it determines
whether the nature of the work performed is that traditionally per-
formed by employees of rail or air carriers. Second, it determines
whether a common carrier exercises direct or indirect ownership or
control over the entity. Both parts of this test must be satisfied for
the NMB to assert jurisdiction. See Sky Valet, 319 NLRB 1243 fn.
2 (1995); and Sapado I (Dobbs International Services), 18 NMB 525
(1991).
‘‘would normally be covered by the NLRA.’’ Again,
however, as the Board made clear in System One,
supra, 322 NLRB at 732, part one of the NMB’s juris-
dictional test focuses on ‘‘whether the nature of the
work performed is that traditionally performed by em-
ployees of air or rail carriers,’’ not on whether the
work performed ‘‘would normally be covered by the
NLRA.’’ Here, the NMB has found that the skycaps’
work is that ‘‘traditionally performed by employees of
air or rail carriers.’’ We defer to that conclusion.
Accordingly, we find no merit in our dissenting col-
league’s contentions.
ORDER
It is ordered that the petition in Case 5–RC–14385
is dismissed.
CHAIRMAN GOULD, dissenting.
I would assert jurisdiction over this Employer and
its employees. For the reasons set forth below, I dis-
sent from my colleagues’ refusal to do so.
On August 7, 1996, the Union initiated this case by
filing a representation petition under Section 9 of the
National Labor Relations Act (NLRA). In determining
whether to direct an election, we must consider the
Employer’s claim that the Board has no jurisdiction
because the Railway Labor Act (RLA) covers the Em-
ployer’s operations and its employees in the petitioned-
for unit. On November 7, 1996, in accordance with its
practice of referring cases involving RLA jurisdictional
claims, the Board requested a ruling from the National
Mediation Board (NMB).1 In an opinion dated March
10, 1997, the NMB concluded that the petitioned-for
employees are subject to the jurisdiction of the RLA.2
My colleagues have accepted this opinion and deferred
to it. I do not.
The starting point in this analysis is, of course, the
plain language of the statutes involved. The definition
of ‘‘employer’’ in Section 2(2) of the NLRA excludes
‘‘any person subject to the Railway Labor Act,’’ and
the definition of ‘‘employee’’ in Section 2(3) excludes
‘‘any individual employed by an employer subject to
the Railway Labor Act.’’ This exclusionary language
represents an express Congressional mandate that the
Board should not ‘‘tread upon the ground covered by
the Railway Labor Act,’’3 and the Board cannot ex-
pand its jurisdiction at the expense of the NMB. How-
ever, it seems equally clear that the NMB should not
expand its jurisdiction at the expense of the Board.
And in the instant case as well as in recent litigation
before both agencies, this is in fact what has hap-
pened.4
In 1926, Congress enacted the RLA because it
thought it was necessary that railroad transportation of
persons and property should not be interrupted by
labor disputes. At that time, there were no federal
labor relations statutes applying generally to industry,
and railroad labor was given certain advantages over
other labor, but it was subjected to certain restraints,
and strikes were forbidden unless and until mediation
and other procedures provided for in the RLA had
been followed.5
Under the RLA, a ‘‘carrier’’ is defined as ‘‘any
company which is directly or indirectly owned or con-
trolled by or under common control with any carrier
. . . which operates any equipment or facilities or per-
forms any service (other than trucking service) in con-
nection with the transportation . . . and handling of
property transported by railroad.’’6 Airline operations
were added to the jurisdiction of the RLA by the 1936
amendments.7 The RLA’s definition of an employee of
an air carrier includes, ‘‘every air pilot or other person
who performs any work as an employee or subordinate
official of such carrier or carriers, subject to its or their
continuing authority to supervise and direct the manner
of rendition of his service.’’ 45 U.S.C. § 181. (Empha-
sis added.) The NMB has read the RLA’s coverage to
be not limited to air carrier employees who fly or
maintain aircraft, but ‘‘to extend to virtually all em-
ployees engaged in performing a service for the carrier
so that the carrier may transport passengers or
freight.’’8
The Board, in contrast, has previously rejected such
sweeping assertions of jurisdiction. In Trans World
Airlines, 211 NLRB 733 (1974), the Board asserted ju-
risdiction over employees at the visitors information
center at Cape Canaveral Space Center where they
were engaged in providing various support services for
visitor tours. The Board stated that
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789SERVICEMASTER AVIATION SERVICES
9 324 F.2d at 223 (quoting Northwest Airlines v. Jackson, 185 F.2d
74 (8th Cir. 1950)). The Pan American court noted that, after its
opinion was written, it was advised that on October 29, 1963, the
NMB asserted jurisdiction over the Nevada Test Site on the basis
that the employer was a common carrier by air engaged in interstate
commerce and that the individuals performed work for the carrier as
employees. 324 F.2d at 223 fn. 2. Characterizing the NMB’s reason-
ing as unpersuasive, the court stated that it would adhere to ‘‘what
we had decided before receiving the advice’’ from the NMB. Id.
10 O/O Truck Sales, 21 NMB 258 (1994). (Where a carrier and an
entity performing work traditionally performed by industry employ-
ees are commonly owned by a holding company, the NMB finds the
entity subject to the RLA). See also Chelsea Catering Corp., 19
NMB 301 (1992). (Chelsea wholly owned by CHI which also owned
carriers Continental and Continental Express subject to RLA); AMR
Services Corp., 18 NMB 348 (1991). (AMR Services, which, with
American Airlines and American Eagle commonly owned by AMR
Corporation, subject to RLA).
11 In Ogden Aviation Services, 20 NMB 181 (1993), and New York
Interstate Service, 14 NMB 439 (1987), the work performed by the
employees at issue in each case was security and preboard screening
of passengers and baggage. In New York Interstate Service, the
NMB asserted jurisdiction based on the control of Interstate’s oper-
ations exercised by American Airlines. The NMB declined to assert
jurisdiction in Ogden Aviation, however, finding that the contracts
between Ogden and its airline customers illustrate the lack of signifi-
cant direct or indirect control between the carriers and the contractor.
12 In Crew Transit, Inc., 10 NMB 64 (1982), for example, the
NMB found that bus drivers who transported flight crews between
Los Angeles International Airport and various hotels performed work
of a nature traditionally performed by carrier employees. The NMB
reasoned that transportation of flight crews would be subject to the
RLA if performed directly by employees of the carrier. 10 NMB at
69. In Air Cargo Transport, Inc., 15 NMB 202, 203 (1988), the
NMB concluded that drivers who pick up and deliver air freight
were engaged ‘‘in work which is performed by employees in the air-
line industry.’’
[w]here a group of employees are involved in
work which would normally be covered by the
National Labor Relations Act, the mere fact that
the employer is one within the definitional sweep
of the Railway Labor Act will not serve to bar
this Board’s jurisdiction. There must be more di-
rect connection between the employees and the
transportation function so as to warrant the special
considerations for which Congress enacted the
Railway Labor Act.
The Board cited Pan American World Airways v. Car-
penters, 324 F.2d 217 (9th Cir. 1963), cert. denied 376
U.S. 964 (1964), as support. In Pan American, the
court held that the RLA did not apply to the carrier’s
housekeeping services at the Atomic Energy Commis-
sion’s Nuclear Research Development Station at its
Nevada Test Site under a contract that had nothing to
do with transportation by air. The Ninth Circuit noted
that
[T]he Railway Labor Act was intended to apply
only to transportation activities and that work
which bears more than a tenuous, negligible and
remote relationship to the transportation activities.
It was not intended to apply to all work, regard-
less of its connection to transportation, merely be-
cause the company carrying on the work included
carrier activities within its company functions.9
The court concluded that the RLA, a highly specialized
and distinct set of labor laws tailor-made for employ-
ees engaged in the transportation industry and intended
to ensure that transportation is not interrupted, should
not be applied to other employees having nothing to do
with the transportation.
Since the Board and the courts have rejected a claim
of NMB jurisdiction where the work of employees di-
rectly employed by a carrier lacked a substantial con-
nection to the transportation activity for which the
RLA was enacted, the connection between the work
performed and the transportation activity must be at
least as substantial for NMB jurisdiction when the em-
ployer is not a carrier. In cases involving noncarriers,
however, the NMB’s assertion of jurisdiction has
turned almost entirely on corporate structure10 or the
degree of control the carrier exerts through its contract
with the noncarrier.11 The carrier’s degree of control
is determinative because it appears that the NMB finds
that most work is of a type ‘‘traditionally performed’’
by airline or railroad employees regardless of the rela-
tionship between the work and the transportation func-
tion.12
In my view, the application of the RLA, a special-
ized labor law created by Congress for those who work
in the rail and air transportation industry and for the
purpose of assuring that rail and air transportation may
not be interrupted, should initially be based on the re-
lationship between the work performed by the employ-
ees and the transportation activities covered by the
RLA. Thus, regardless of whether the employer is a
carrier or a noncarrier, in deciding whether to assert
jurisdiction, the Board should determine whether the
work performed by the employees bears a substantial
connection, i.e., more than a tenuous, negligible, and
remote relationship, to the transportation activities cov-
ered by the RLA.
In the instant case, the employees at issue are ‘‘sky-
caps’’ and other employees who perform services for
American Airlines at National Airport pursuant to a
contract between ServiceMaster and American Air-
lines. The skycaps are responsible for curbside check-
in of passenger baggage for American Airlines’ flights
and provide wheelchair transport assistance to Amer-
ican Airlines’ passengers. To be sure, the work of
these employees is related to the air transportation of
passengers and goods. In my view, however, their rela-
tionship to air transportation is tangential at best and
not an integral part of American’s carrier function.
The work of the skycaps is a service to passengers
and therefore an aid to the airline, but it is not required
for the carrier to function. The terminals at National
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790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 In Sky Valet, 23 NMB 155 (1996), however, the NMB asserted
jurisdiction over employees providing cleaning and janitorial services
at the Trans World Airline terminal at Logan International Airport.
As in the instant case, prior to Sky Valet’s obtaining the cleaning
services contract from a predecessor employer, Precision Cleaning,
Inc., the Board had certified the Service Employees International
Union (SEIU) as the collective-bargaining representative of the em-
ployees at issue.
14 As discussed above, the NMB has held that any employee of
a carrier, regardless of their function is within the jurisdiction of the
RLA. With regard to noncarriers, one part of the two-part jurisdic-
tional test requires that the work of the employees at issue be of a
type ‘‘traditionally performed’’ by employees of a carrier.
15 My colleagues state that the skycaps provide a direct service to
the airline passengers. So, of course, do the cabdrivers who transport
the passengers to and from the airport and the vendors in the termi-
nal who sell the passengers food, newspapers, and souvenirs. The
provision of this service directly to airline passengers, however, does
not bring those employees within the jurisdictional sweep of the
RLA.
16 There is no contention that the current employer, Servicemaster,
is a successor to Huntleigh or otherwise has a bargaining relation-
ship with the Union.
17 In Huntleigh Corp., 14 NMB 149 (1987), and Airport Services,
15 NMB 70 (1988), the NMB declined to assert jurisdiction over
skycaps because of the degree of autonomy retained by the employer
under its contracts with the airline.
18 In certain circumstances, including this case, the employer’s
contract with the RLA carrier may impose certain limitations on the
employer’s ability to bargain. However, I would not find that the de-
gree of contractual control exercised by the RLA carrier is the deter-
minative factor in deciding the jurisdictional question. As the Board
recognized in Management Training Corp., 317 NLRB 1355 (1995),
employers are frequently confronted with demands concerning mat-
ters which they cannot control because they have made a contractual
relationship with private parties or public entities, but an employer’s
voluntary decision to contract away some of its authority over terms
and conditions of employment should not be determinative of the
Board’s jurisdiction.
Airport must also be kept clean and the floors swept
but it is hard to argue that Congress intended that em-
ployees providing those services be subject to the wait-
ing periods and mediation provisions of the RLA to
ensure that air transportation be kept moving. Such
work is properly within the jurisdiction contemplated
by the NLRA.13 It appears, however, that the NMB
would assert jurisdiction over any employees perform-
ing a function that aides an airline, no matter how inci-
dental that service is to the air carrier’s function so
long as the employing entity is either a carrier or di-
rectly or indirectly owned or controlled by a carrier.14
In my view, the Board should reject this expansive as-
sertion of jurisdiction over such functions. Rather, as
discussed above, we should find that the NMB has ju-
risdiction only when the employees perform services
which have a substantial connection to a carrier’s oper-
ations.15
In 1995, the Board conducted an election and cer-
tified the Union as the exclusive bargaining representa-
tive of these skycaps and other employees who per-
formed related services for American Airlines at Na-
tional Airport. At that time, the skycaps were em-
ployed by a different employer, the Huntleigh Com-
pany, and there is no evidence that a jurisdictional
question was raised before the Board.16 The work of
these employees has not changed. The only change has
been in the employing entity. The circumstances of the
instant case, where it appears that the sole basis for
now asserting RLA jurisdiction over these employees
is that American Airlines has more control over the
manner in which they perform their jobs, illustrate how
employees who do not have a substantial connection to
the carrier’s operations are being transferred back and
forth between NLRB and NMB jurisdiction.17 By
sharply defining those job functions that are closely re-
lated to an air carrier, however, it is less likely that the
employees performing services of a type that would
normally be under the jurisdiction of the NLRA will
be shifted back and forth between statutes. The more
substantial the connection between the air carrier and
its essential operations, the less likely that jurisdiction
may shift between the NLRB and the NMB based
solely on the nature of the employer’s contractual rela-
tionship with an air carrier.18
My colleagues insist that I have not applied the
‘‘proper’’ NMB jurisdictional test. My interest, how-
ever, is in properly determining the jurisdiction of the
National Labor Relations Board.
Accordingly, I would find that the petitioned-for em-
ployees are involved in work that would normally be
covered by the NLRA, and that their jobs are at most
an incidental service to the air carrier. I therefore dis-
sent from my colleagues’ decision to defer to the NMB
and dismiss the petition.
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