NLRB Advice Memoranda, FedEx Express, National Labor Relations Board, (Nov 19, 2024)

The Region submitted this case for advice pursuant to Memorandum GC 21-04, Mandatory Submissions to Advice, dated Aug. 12, 2021, on the question of whether the Railway Labor Act or the National Labor Relations Act applies to this case. We conclude that the operations in which the Charging Party is employed are subject to the Railway Labor Act.

Federal Express (“Employer”) is a common carrier directly employing couriers to perform work integral to its air carrier functions. The Charging Party worked as ​     ​ courier delivering bulk items from the Employer's facility in North Las Vegas, Nevada to the “ramp” at Harry Reid Airport, about 12 miles away. ​     ​ alleges that the Employer unlawfully disciplined ​     ​ for engaging in protected concerted activity by protesting mistreatment by ​     ​ manager with the support of a coworker.

Section 2(2) of the Act excludes from the definition of employer “any person subject to the Railway Labor Act.” 29 U.S.C. §152(2). Section 2(3) of the Act provides that the term “employee” excludes “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 rail carriers and “every common carrier by air engaged in interstate or foreign commerce … and every air pilot or other person who performs any work as an employee or subordinate official or 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. See also Federal Express Corp., 23 NMB 32, 70 (1995). RLA coverage extends to “virtually all employees engaged in performing a service for the carrier so that the carrier may transport passengers or freight.” Federal Express, 23 NMB at 71. Both the Board and the National Mediation Board have recognized that the Employer's couriers fall under RLA jurisdiction. See id; Federal Express Corp., 323 NLRB 871, 871 n.2, 872 (1997) (finding that trucking operation employees, including couriers, are subject to the RLA under the “integrally related” test where more than 85 percent of shipments are transported by air and every trucking employee funnels packages through air operation, without deciding whether NMB correctly concluded that the inquiry is over once the Employer is deemed a “carrier by air”).

Absent evidence that the Employer no longer qualifies as a common carrier or that its air and trucking operations are no longer linked in “substantial proportion,” the operations in which the Charging Party is employed are outside the Board's jurisdiction. Federal Express, 323 NLRB at 872. There is no evidence of changed circumstances so demonstrating. The mere possibility of material changes, without more, does not in our view warrant further investigative measures at this time.

We further note that this case does not implicate ABM Onsite Services-West, Inc., 367 NLRB No. 35 (2018), because it does not involve a carrier contractor, but rather the carrier itself. Recently, we argued that the Board should overrule ABM Onsite Services-West and return to the rebalanced test the National Mediation Board applied from 2013 to 2017, which considered multiple factors but emphasized one in particular—an air carrier's involvement in personnel decisions—in determining whether a putative independent contractor was in fact a “derivative carrier” subject to RLA jurisdiction. Swissport USA, Case 29-CA-310875, Significant Advice Memorandum dated Aug. 21, 2023, at 15–19. In a recent opinion, however, the NMB abandoned the function and control test and announced that it would assert jurisdiction only over air carriers and their employees but not over other companies contracting with air carriers to perform services for them. Swissport Cargo Services, LP, 52 NMB No. 8, slip op. at 37–38 (2024). Consequently, in a future appropriate case, the General Counsel would consider urging the Board to assert jurisdiction over air carrier contractors and their employees without applying the function and control test. As explained above, however, this case does not represent such a vehicle because, here, the Employer is an air carrier, not a contractor.

Accordingly, the Region should dismiss the charge for lack of jurisdiction, absent withdrawal.

This email closes this case in Advice. Please contact us with any questions or concerns.

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National Labor Relations Board

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