Employment Law Daily NLRB: Employer’s airport operations subject to RLA, not NLRA; union certification vacated
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Tuesday, February 5, 2019

NLRB: Employer’s airport operations subject to RLA, not NLRA; union certification vacated

By Ronald Miller, J.D.

Using the National Mediation Board’s traditional carrier control factors, the NLRB concluded that an employer’s airport operations were controlled by air carriers and so were subject to the RLA, as opposed to the NLRA, and so were subject to NMB jurisdiction.

Finding that five of the six traditional carrier control factors established that an employer was controlled by air carriers, and that this finding was consistent with prior NMB precedent, a divided NLRB concluded that the employer’s airport operations at LaGuardia Airport were subject to the RLA. Here, the Board agreed with the NMB’s determination that the carriers exercised sufficient control over the employer’s LaGuardia operations to establish RLA jurisdiction. Accordingly, the Board vacated a union’s certification. Member McFerran filed a separate dissenting opinion (Primeflight Aviation Services, Inc., January 31, 2019).

On May 10, 2017, the union petitioned to represent a unit of the employer’s employees at LaGuardia Airport (LGA). The employer argued that the petition should be dismissed, reasoning that it was controlled by common air carriers subject to the jurisdiction of the RLA, including American Airlines, Air Canada, and Southwest Airlines, among others, so that the Board lacked jurisdiction under Section 2(2) of the NLRA. For its part, the union contended that the employer was not directly or indirectly controlled by common air carriers.

After a hearing, a regional director issued a direction of election, asserting jurisdiction based on her finding that the common air carriers did not exercise meaningful control over the employer. In so finding, the regional director relied on cases that were criticized by the D.C. Circuit in ABM Onsite Services – West, Inc. v. NLRB . Thereafter, the employer filed a request for review.

The Board requested that the NMB study the record in this case in light of the D.C. Circuit’s decision. On February 26, 2018, the NMB issued an advisory opinion in ABM Onsite, reaffirming its traditional six-factor carrier control test, and overruling those cases relied upon by the regional director. Consistent with Board policy, the Board gave substantial deference to NMB’s opinion applying the traditional six-factor carrier control test. In light of the NMB’s decision, the Board granted the employer’s request for review of the regional director’s direction of election.

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.

Application of carrier control test. Under the first factor of the carrier control test, the Board concluded that the record supported the NMB’s determination that the carriers controlled the manner in which the employer conducted its business, supporting RLA jurisdiction. The employer adjusted its schedule based on carrier needs, so that carriers’ schedules dictated the scheduling of its employees. The second factor also weighed in favor of RLA jurisdiction because the carriers required the employer to maintain records relating to training, service, and billing, and allowed the carriers to audit these records.

Further, because the carriers reserved the right to request that any of the employer’s employees be removed from servicing the carrier due to misconduct, the carriers’ role in personnel decisions supported a finding of RLA jurisdiction. Additionally, two other carrier control factors—control over employee training and whether the employees were held out to the public as carrier employees—favored RLA jurisdiction. Moreover, under its six-factor carrier control test, the NMB had previously found the employer’s LaGuardia operations to be subject to the RLA.

Thus, the Board agreed with the NMB’s determination that the carriers exercised sufficient control over the employer’s LaGuardia operations to establish RLA jurisdiction. Accordingly, the Board vacated the union’s certification.

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. It overruled the approach of its more recent line of “carrier control” cases in only a footnote and returned to the approach of what it called its traditional jurisdiction test without explaining why it chose one line of precedent rather than the other. Instead of deferring to the NMB jurisdictional determination, McFerran argued that the NLRB should refer this case back to the NMB again, so that agency could 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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