Foreign & Domestic Car Service

National Labor Relations Board - Board Decisions

Jan 31, 2001

333 N.L.R.B. 96 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 96
Foreign and Domestic Car Service, Inc. and Automo-
bile Transport Chauffeurs, Demonstrators and
Helpers, Local Union No. 604, affiliated with the
International Brotherhood of Teamsters, AFL–
CIO, CLC. Case 14–RC–12171
January 31, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On May 10, 2000, the Petitioner filed a petition seek-
ing to represent all rail loaders, unloaders, and scanners
employed by Foreign and Domestic Car Service, Inc.
(FDCS), at Norfolk Southern Corporation’s (NSC) Ven-
ice, Illinois facility. FDCS asserts that it provides rail
loading services to NSC, a common carrier subject to the
jurisdiction of the Railway Labor Act (RLA), that the
services it provides are those traditionally done by rail-
road employees, that NSC exercises substantial control
over FDCS, and accordingly, that the National Labor
Relations 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.1
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:
NSC contracts with FDCS for its services in loading
and unloading new automobiles to and from NSC rail
cars. New vehicles are delivered to the NSC Venice site
by independently owned semi-tractor auto carriers where
they are off loaded by the auto carrier drivers. FDCS
employees then inspect the vehicles and enter the vehicle
identification number by means of a scanner. This in-
formation is then transmitted to NSC where it is utilized
to designate the vehicles to be loaded on auto carrier rail-
road cars by FDCS employees. All of the offices and
equipment used by FDCS are owned by NSC, and FDCS
pays no rental fees for their use. The employees of
FDCS and NSC share lockers and toilet facilities. There
are seven employees in the proposed unit. Because NSC
is FDCS’s only customer, the unit employees work only
under the NSC contract.
The uncontroverted evidence reveals that NSC exer-
cises extensive control over the operations of the Em-
ployer. Background checks for prospective FDCS em-
ployees are required and conducted by NSC. NSC re-
serves the right to prohibit FDCS employees from its
premises, in which case FDCS terminates such employ-
ees. The record indicates that NSC has exercised this
right and has done so without notifying FDCS as to the
reason. FDCS employees are required by NSC to wear
uniforms that are designed by NSC in order to avoid hav-
ing any buttons or zippers that might scratch a car. NSC
trains FDCS employees.

1 The only issue presented at the hearing involved the jurisdiction of
the Board over FDCS.
Except for a policy against sexual harassment, FDCS
has no employee work rules or policies of its own. In-
stead, FDCS employees are required to follow NSC’s
operations manual (Manual for Loading & Unloading
Autos on Railcars), which describes every step in the
loading and unloading of new vehicles on and off NSC
rail cars by FDCS employees. The failure of an FDCS
employee to comply with an NSC policy, resulting in
damage to a vehicle, can result in discipline of the em-
ployee; NSC advises FDCS what discipline to impose on
the FDCS employee where there has been a “significant
violation.” NSC managers generally direct FDCS super-
visors on what FDCS employees should do. Addition-
ally, NSC supervisors have the right to directly instruct
FDCS employees in the performance of specific tasks.
The wages and benefits of unit employees are set by
FDCS without any NSC involvement.
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. §
152(2). Similarly, Section 2(3) of the Act provides that
the term “employee” does not include “any individual
employed by an employer subject to the Railway Labor
Act.” 29 U.S.C. § 153(3). The RLA, as amended, ap-
plies to rail carriers.
On September 21, 2000, the Board requested that the
NMB study the record in this case and determine the
applicability of the RLA to the FDCS. The NMB subse-
quently issued an opinion indicating that the loading and
unloading work in question here is work traditionally
done by carriers and that NSC, a carrier, exercises “sub-
stantial control” over FDCS and its employees. In its
view, FDCS is subject to the RLA. Foreign & Domestic
Car Service, 28 NMB 82 (2000), citing, inter alia, Bank-
head Enterprises, 17 NMB 153 (1990).2
2 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. § 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 at fn. 14 (D.C. Del. 1981),
affd. 676 F.2d 967 (3d Cir. 1982), cert. denied 459 U.S. 989 (1982).
See also Ground Services, 7 NMB 509, 510 (1980). The second prong
of the test, known as the “function” prong, is also derived from 45
333 NLRB No. 11
FOREIGN & DOMESTIC CAR SERVICE 97

U.S.C. § 151 First. For the NMB’s jurisdiction to attach to the noncar-
rier 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 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. 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.
Having considered the facts set forth here in light of
the opinion issued by the NMB, we find that Foreign and
Domestic Car Service, Inc. is engaged in interstate com-
mon 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 dismiss the petition.
ORDER
It is ordered that the petition in Case 14–RC–12171 is
dismissed.