Employment Law Daily Employer’s airport operations subject to RLA, not NLRA, so union certification vacated by NLRB
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Friday, February 1, 2019

Employer’s airport operations subject to RLA, not NLRA, so union certification vacated by NLRB

By Ronald Miller, J.D.

Because an employer’s operations at a regional airport were subject to the Railway Labor Act, as opposed to the NLRA, it was subject to the jurisdiction of the National Mediation Board. Agreeing with the NMB, the NLRB granted the employer’s request for review and vacated a union’s certification.

A divided three-member panel of the NLRB found the record supported the National Mediation Board’s finding that evidence on four of the six traditional carrier control factors established an employer was controlled by JetBlue Airways, and that this finding was consistent with prior NMB precedent. Accordingly, the Board agreed with the NMB that the employer’s airport operations were subject to the RLA. The Board therefore granted the employer’s request for review of a regional director’s direction of an election, and vacated a union’s certification. Member McFerran filed a separate dissenting opinion(Prime Flight Aviation Services, Inc., January 29, 2019).

The employer provides various ground-handling and terminal services at airports throughout the country. In this case, it contracts with JetBlue Airways, and a management firm at the Westchester County Airport. On October 18, 2016, the union filed a petition to represent baggage handlers, wheelchair agents, and line queue agents employed by the employer. The employer argued that the petition should be dismissed, reasoning that it was controlled by common air carriers, and subject to the jurisdiction of the RLA. For its part, the union argued that the employer was not directly or indirectly controlled by common air carriers subject to the RLA, and therefore, the Board had jurisdiction.

Finding that the common air carriers did not exercise meaningful control over the employer, particularly its personnel, an NLRB regional director concluded that the employer’s operations at the regional airport were subject to the NLRA and directed an election. Thereafter, the employer filed a timely request for review under Section 102.67 of the Board’s rules and regulations. While the request was pending, the D.C. Circuit issued a decision, ABM Onsite Services–West, Inc. v. NLRB, criticizing the NMB for recent decisions, including decisions relied upon by the regional director that departed from longstanding NMB precedent without explanation.

On February 26, 2018, the NMB issued an advisory opinion in ABM Onsite overruling the recent decisions criticized by the D.C. Circuit. On August 22, 2018, the NMB issued an advisory opinion stating its view that the employer’s airport operations were subject to the RLA.

RLA exclusion. At issue in this case was whether the employer’s airport operations were subject to the RLA or to the NLRA. Section 2(2) of the NLRA provides that the term “employer” shall not include “any person subject to the Railway Labor Act.” Similarly, Section 2(3) provides that the term “employee” does not include “any individual employed by an employer subject to the Railway Labor Act.”

Test of NMB jurisdiction. When an employer is not itself a carrier, the NMB applies a two-part test to determine whether it nonetheless has jurisdiction over that employer. First, the NMB considers whether the work the employer performs is traditionally performed by carrier employees. Second, the NMB 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 met for the NMB to assert jurisdiction.

In determining whether the second part of the test is satisfied, the NMB traditionally considers six factors: (1) the extent of the carrier’s control over the manner in which the company conducts its business; (2) the carrier’s access to the company’s operations and records; (3) the carrier’s role in personnel decisions; (4) the degree of the carrier’s supervision of the company’s employees; (5) whether the company employees are held out to the public as carrier employees; and (6) the extent of carrier control over employee training.

In 2013, the NMB began emphasizing the third of these six factors, carrier control over personnel decisions, and it issued a series of advisory opinions declining to assert jurisdiction where such evidence was lacking. The NLRB followed suit, in light of its policy to grant “substantial deference” to NMB advisory opinions. Thus, the Board asserted jurisdiction over cases where the NMB declined to do so. In addition, consistent with its longstanding practice, the Board asserted jurisdiction, without referral, in cases that were factually similar to cases in which the NMB had declined jurisdiction.

NMB jurisdiction. In light of the NMB’s decision to overrule cases relied upon by the regional director in asserting Board jurisdiction and the NMB’s advisory opinion asserting its jurisdiction over the employer’s airport operations, the Board granted the employer’s request for review.

Considering the record in light of the NMB’s opinion, the Board found that the employer’s baggage handlers, wheelchair agents, and line queue agents performed work traditionally performed by air carrier employees, and that JetBlue exercised substantial control over the employer’s operations under the traditional six-factor carrier control test.

Carrier control test. Under factor one, the Board concluded that the record supported the NMB’s finding that JetBlue controlled the manner in which the employer conducted its business, since JetBlue’s schedule dictated the scheduling of the employer’s employees. JetBlue’s supervisor coordinated with the employer’s supervisor each day to ensure wheelchair and baggage services were provided. The employer must also seek JetBlue’s permission before exceeding the maximum daily service hours. Additionally, JetBlue reports performance problems to the employer’s supervisors and managers, and the employer’s general manager is responsible for addressing these concerns and communicating the steps the employer has taken.

There was also evidentiary support for the NMB’s determination that the third carrier control factor weighed in favor of RLA jurisdiction because JetBlue exerted significant control over the employer’s personnel decisions. The employer created supervisor positions at the request of the carriers and filled those positions with individuals the carriers had requested. The record additionally sustained the NMB’s findings that two of the remaining factors demonstrated that the employer was subject to JetBlue control. JetBlue has access to the employer’s operations and records. Further, with respect to training, JetBlue trains one of the employer’s employees, who in turn trains the other employees working under the JetBlue contract. Thus, the Board agreed with the NMB’s determination that JetBlue exercised sufficient control over the employer’s operation to establish RLA jurisdiction. Accordingly, the union’s certification was vacated.

Dissent. In a dissenting opinion, Member McFerran asserted her belief that the NMB adopted its current jurisdictional test without engaging in the reasoned decision-making required by the Administrative Procedure Act. Instead of deferring to the NMB’s jurisdictional determination, she argued that the Board should refer this case to the NMB again, so that agency may provide a sufficient explanation of its decision either to adopt the jurisdictional test applied here or to adhere to its prior test.

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