Swissport USA, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 2008

353 N.L.R.B. 143 (N.L.R.B. 2008)

SWISSPORT USA, INC.
353 NLRB No. 18
145
Swissport USA, Inc. and Miscellaneous Employees
Union Local 781, International Brotherhood of
Teamsters, Petitioner and International Broth-
erhood of Teamsters, Local 705, Intervenor.
Case 13–RC–21719
September 26, 2008
DECISION AND ORDER
BY CHAIRMAN SHAUMBER AND MEMBER LIEBMAN
On February 26, 2008,1 the Petitioner filed a represen-
tation petition seeking to represent a unit of all full-time
and regular part-time ramp agents, lead ramp agents,
ground service equipment mechanics, lead ground ser-
vice equipment mechanics, and ground service equip-
ment mechanic helpers employed by the Employer at
Chicago-O’Hare Airport (ORD) in Chicago, Illinois.2
The Employer asserts that it is directly controlled by sev-
eral common carriers subject to the jurisdiction of the
Railway Labor Act (RLA) and that, therefore, the Na-
tional Labor Relations Board (Board) lacks jurisdiction
under Section 2(2) of the National Labor Relations Act.
The Petitioner contends that the Board properly has ju-
risdiction over the Employer because the Employer
stipulated to the Board’s jurisdiction in two previous
cases.3 The Petitioner further argues that the Employer
failed to establish that it is directly or indirectly con-
trolled by common carriers subject to the RLA.
After a hearing on the jurisdiction issue, the Regional
Director transferred the proceeding to the Board with the
recommendation that the case be referred to the National
Mediation Board (NMB). On April 11, the Board re-
ferred the case to NMB for a determination of whether
the Employer’s operations at ORD are within the juris-
diction of the RLA, rather than the National Labor Rela-
tions Act.
On July 2, the NMB issued an opinion letter finding
that the Employer and its employees are subject to the
RLA. Swissport USA, Inc., 35 NMB No. 55 (2008).
Specifically, the NMB used its two-pronged jurisdic-
tional analysis to determine: (1) whether the Employer’s

1 All dates are 2008 unless otherwise indicated.
2 The petitioned-for unit excluded all other employees, office clerical
employees and guards, professional employees and supervisors as
defined in the Act.
3 Specifically, on October 1, 2004, the Employer stipulated to Board
jurisdiction when the Board decertified the Transportation Workers
Union of America, AFL–CIO, Air Transport Local 504 as the collec-
tive-bargaining representative of the Employer’s ramp agents and
ground service mechanics at ORD. On January 26, 2006, the Employer
stipulated to Board jurisdiction when the Board certified Local 705,
International Brotherhood of Teamsters as the exclusive collective-
bargaining representative of the Employer’s ramp agents and ground
service mechanics at ORD.
work at ORD is traditionally performed by employees of
air or rail carriers; and (2) whether a common carrier or
carriers exercise direct or indirect ownership or control
over the Employer at ORD. Applying this test, the NMB
concluded that both prongs had been met, and that the
Employer was subject to the RLA.
The case is now before the Board4 on the issue of
whether to defer to the NMB’s opinion. On the entire
record in this case, we find:
The Employer is a Delaware corporation engaged in
the business of providing ground support services to in-
ternational and domestic airline carriers. At ORD, the
Employer provides ramp services to between 12 and 16
international airline carriers. In the course of providing
these services, the Employer’s employees load and
unload cargo and passenger baggage into and from air-
craft at the airport, weigh and balance the cargo and
baggage for outgoing flights, process passenger bag-
gage, clean aircraft cabins, and de-ice aircraft in prepa-
ration for flight departures.
The record indicates that the carriers exercise substan-
tial control over the Employer’s ORD operations. Thus,
the carriers dictate the type of training the Employer’s
employees must receive; employees hired by the Em-
ployer are assigned to carriers based on the carriers’
flight schedules and service levels; carriers mandate spe-
cific performance requirements; many carriers require
regular briefings and debriefings regarding daily per-
formance issues; carriers have the right to request that the
Employer remove specific employees from their account;
the Employer uses the carriers’ equipment and facilities;
and at least one carrier agreement requires that the Em-
ployer provide carrier uniforms to the employees and that
the employees appear to be employees of that carrier.
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. § 152(3). The Railway Labor Act, as
amended, applies to:

4 Effective midnight December 28, 2007, Members Liebman,
Schaumber, Kirsanow, and Walsh delegated to Members Liebman,
Schaumber, and Kirsanow, as a three-member group, all of the Board’s
powers in anticipation of the expiration of the terms of Members Kir-
sanow and Walsh on December 31, 2007. Pursuant to this delegation,
Chairman Schaumber and Member Liebman constitute a quorum of the
three-member group. As a quorum, they have the authority to issue
decisions and orders in unfair labor practice and representation cases.
See Sec. 3(b) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD146
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. § 151 First and 181.
Here, the Board requested that the NMB study the re-
cord and determine the applicability of the RLA to the
Employer. The NMB did so and issued an opinion find-
ing that the Employer and its employees are subject to
the RLA. At this juncture, whether the Board’s referral
of this case to the NMB for an initial determination was
improvident under the circumstances is a moot issue.
Having received the NMB’s opinion, we will give it the
substantial deference the Board ordinarily accords to
NMB’s opinions.5
Having considered the foregoing facts, in light of the
opinion issued by the NMB, we find that the Employer is

5 See generally DHL Worldwide Express, 340 NLRB 1034 (2003).
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. We shall there-
fore dismiss the petition.6
ORDER
It is ordered that the petition in Case 13–RC–21719 is
dismissed.

6 Member Liebman reluctantly concurs in the decision to dismiss the
petition, notwithstanding the Board’s holding in United Parcel Service,
318 NLRB 778, 780 (1995), that it will not refer the question of RLA
coverage to the NMB in cases where (as here) the Board has previously
exercised uncontested jurisdiction over the employer. In this case, the
matter was referred, and the NMB has issued an opinion. Under the
circumstances, the policy reasons for the Board’s general practice of
referral to the NMB, as expressed in United Parcel Service—
”enabl[ing] the Board to obtain the NMB’s expertise” and “mini-
miz[ing] the possibility of conflicting agency determinations”—counsel
in favor of deferring to the NMB’s opinion, even if precedent strongly
suggests that the initial referral was erroneous.
In Chairman Schaumber’s view, United Parcel Service, supra, does
not compel Board jurisdiction in all circumstances where uncontested
jurisdiction previously has been exercised over an employer. However,
he agrees with his colleague that deference to the NMB’s opinion is
appropriate here.