25 NMB No. 121

September 22, 1998

Mr. John E. Higgins, Jr.

Solicitor

National Labor Relations Board

1099 14th Street, N.W.

Washington, DC 20570

Re:	NMB File No. CJ-6634

Evergreen Aviation Ground

Logistics Enterprises, Inc.

Dear Mr. Higgins:

This responds to your April 27, 1998, request for the National Mediation Board's opinion regarding whether Evergreen Aviation Ground Logistics Enterprises, Inc. (EAGLE) is subject to the Railway Labor Act, 45 U.S.C. §§ 151-188.

I.

This case arose as a result of a representation petition filed by the Transport Workers Union of America (TWU) with the National Labor Relations Board (NLRB). In the petition, TWU seeks to represent EAGLE's maintenance employees which include service mechanics, fuelers, painters, mechanic helpers, ramp service agents, and aircraft cleaners employed at Miami International Airport. The NLRB held hearings on March 12 and 13, 1998, at which EAGLE took the position that it is subject to the Railway Labor Act. TWU asserted that EAGLE falls within the jurisdiction of the National Labor Relations Act.

The Board bases its opinion in this case upon the information provided by the NLRB, which includes the evidence and arguments presented by EAGLE and TWU.

II.

The record establishes that EAGLE provides ground service support at twenty domestic airports, including Miami. EAGLE employees perform aircraft loading and unloading, aircraft cleaning, passenger service, and aircraft/airport ground equipment maintenance for Evergreen International Airlines, MartinAir Holland, Virgin Atlantic, Ecuatoriana and other airlines. EAGLE also employs licensed dispatchers who compute, compile, and prepare flight information for aircraft crews. EAGLE is a wholly-owned subsidiary of Evergreen International Aviation, which is also the parent company of Evergreen Helicopters and Evergreen International Airlines.

III.

For the reasons set forth below, the Board is of the opinion that EAGLE and its employees are subject to the Railway Labor Act.

A.

Where the company at issue is a separate corporate entity that does not fly aircraft for the public transportation of freight or passengers, the National Mediation Board applies a two-part test in determining whether an employer and its employees are subject to the Railway Labor Act, 45 U.S.C. § 181. Quality Aircraft Services, Inc., 24 NMB 286 (1997); Federal Express, 23 NMB 32 (1995). First, it determines whether the nature of the work performed is that traditionally performed by employees of rail or air carriers. Second, it determines whether the employer is directly or indirectly owned or controlled by, or under common control with, a carrier or carriers. Both parts of this test must be satisfied for the Board to assert jurisdiction.

TWU argues that ramp services, cleaning, and ground handling is work traditionally performed by "independent contractor permittees that provide ground service to certain air carriers." However, the Board finds that loading and unloading cargo and baggage to and from aircraft, cleaning aircraft cabins, ticketing and assigning seating, maintenance of ground equipment, and dispatch functions are functions traditionally performed by employees in the airline industry. Quality, supra; Service Master Aviation Services, 24 NMB 181 (1997); Sky Valet, 23 NMB 155 (1996); Federal Express, supra; AMR Combs Memphis, Inc., 18 NMB 380 (1991); Ground Handling, 13 NMB 116 (1986).

B.

An examination of the record before the Board leads to the conclusion that EAGLE is controlled by a carrier or carriers.

TWU argues that EAGLE is not owned or controlled by carriers. According to the organization, EAGLE management at Miami makes all personnel decisions. In addition, TWU asserts that EAGLE employees are paid in checks drawn from EAGLE funds, and are supervised by EAGLE employees. In addition TWU maintains that EAGLE's predecessor at Miami was subject to the jurisdiction of the NLRR.

The record establishes that the degree of control exercised by common carriers over EAGLE employees varies from carrier to carrier. EAGLE ramp employees working with Evergreen International Airlines are subject to Evergreen's standards and the direct control of an Evergreen loadmaster. EAGLE ramp personnel also receive training from carriers, and certain carriers monitor EAGLE's on-time performance. Carrier employees supervise and direct EAGLE employees performing cabin cleaning duties, sometimes directing that the work be re-done. EAGLE'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.

EAGLE's Vice President of Operations, Kevin Roundtree, testified that the type of work performed by EAGLE employees at Miami is substantially similar to the work performed by EAGLE employees in Indianapolis, Dallas, JFK, and other airports.

Evergreen International Aviation provides centralized payroll services and a central human resources department for all its subsidiaries. Personnel functions for EAGLE employees are centralized in McMinnville, Oregon, the headquarters of Evergreen International Aviation. Personnel files for all the Evergreen companies are consolidated in McMinnville. Payroll checks for EAGLE employees are signed by Delford M. Smith, Chairman of Evergreen International Aviation, Evergreen International Airlines, Evergreen Helicopters, and EAGLE. The President of EAGLE, Brian Bauer, is in daily contact with Smith

EAGLE employees share the same benefits as other Evergreen employees, with the exception of health benefits.

C.

If an airline makes a complaint or recommendation regarding assignment, transfer, promotion, discipline or firing, EAGLE conducts an investigation and ultimately decides the course of action. Recommendations by airlines have resulted in reassignment, further training and/or discharge of EAGLE employees. EAGLE Vice President Roundtree testified at the hearing that there are no instances of EAGLE not discharging an employee when a carrier demands it. The carriers with which EAGLE contracts also are consulted and approve of promotions of EAGLE ramp or cabin cleaning employees to supervisor positions.

D.

When the Board examines whether an entity is controlled by a carrier or carriers, it focuses on inter alia, the carriers' role in the entity's daily operations, and the entity's employees' performance of services for the carriers. Sky Valet, Commercial Aviation Services of Boston, 22 NMB 230 (1995). The Board also examines, inter alia, the carriers' role in employing and terminating employees; the degree to which the carriers supervise the entity's employees; the degree to which the carriers affect other conditions of employment; whether employees are held out to the public as carrier employees; and the degree of carrier control over employee training. Quality, supra; Ogden Aviation Services, 23 NMB 98 (1996).

An analysis of the record in light of the foregoing leads to the conclusion that EAGLE and its employees are subject to control by air carriers. Although EAGLE hires and fires its employees, carriers have effectively recommended termination of employees and play a significant role in EAGLE's promotion practices. Airline personnel monitor the work of EAGLE's employees on a regular basis. EAGLE's ramp employees at Miami work under the direction of Evergreen International Airlines employees. The Miami-based passenger service employees who work for MartinAir are held out to the public as MartinAir employees.

Based upon the record in this case, the Board is of the opinion that EAGLE and its employees are subject to the Railway Labor Act. This decision may

be cited as Evergreen Aviation Ground Logistics Enterprises, Inc., 25 NMB (1998).

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Peter J. Petesch, Esq.

Mark Richard, Esq.