By Michele Haydel Gehrke and Emily Erdman
The New York Regional Director of the National Labor Relations Board (NLRB) recently issued a decision asserting jurisdiction over employees of an airline independent contractor (“AIC”) and ordered that the contractor’s workforce vote concerning whether to unionize. See PrimeFlight Aviation Services, Inc., 02-RC-186447 (2016). This is just another example of a growing trend that we have seen at both the NLRB and the National Mediation Board (NMB) in finding that air carriers are not asserting enough control over AICs to bring them under the jurisdictional umbrella of the Railway Labor Act (RLA).
The NLRB’s recent decisions, encapsulated by PrimeFlight, indicate that the NLRB, rather than the NMB, will continue to assert its jurisdiction over an AIC absent air carrier ownership or robust carrier control. Relying on a jurisdictional test articulated by the NMB, the NLRB engages in a two-part analysis to determine whether such jurisdiction is appropriate. First, the Board determines whether the work at issue is traditionally performed by carrier employees. Second, the Board assesses whether a carrier directly or indirectly owns or controls the AIC or both the AIC and the carrier are under common control. See, e.g., Airway Cleaners, LLC, 41 NMB 262, 267 (2014). The NMB will not assert jurisdiction unless both prongs of the test are satisfied. Id. The growing trend of NLRB jurisdiction over AICs not only complicates labor relations between AICs and their employees, but also impacts airline carriers’ operations, labor relations, and contract administration.
In the November 4, 2016 PrimeFlight Aviation Services decision, the NLRB held that baggage handlers and wheelchair and line queue agents employed by PrimeFlight Aviation Services, an AIC providing services to carriers JetBlue and AFCO AvPorts Management, LLC at the Westchester County Airport in New York, properly fell under the jurisdiction of the National Labor Relations Act. Although both carriers could recommend personnel decisions and had access to records directly related to services provided by the AIC’s on-site employees, the AIC remained ultimately responsible for hiring, supervising, disciplining, and terminating its employees. The NLRB’s Regional Director weighed these factors under the NMB’s two-part test and ultimately determined that the airlines failed to exert sufficient control over PrimeFlight Aviation and its employees to establish RLA jurisdiction. As a result, the Regional Director granted the International Brotherhood of Electrical Workers’ petition seeking to represent the workers at issue via election.
The wave of recent decisions similar to PrimeFlight by both the NMB and NLRB suggests that the pendulum has swung away from the NMB and towards the NLRB in overseeing labor relations for airline contractors. This move has important ramifications not only for AICs but also for airline carriers, including whether employees critical to an airline’s operations may strike, the scope of bargaining units for such employees which are not on a systemwide basis under the NLRA and can even include so-called “micro units”, and whether these decisions portend indirect NLRB jurisdiction over carriers themselves under the NLRB’s new Browning-Ferris joint employer standard.
Whether this trend will continue remains to be seen, however, in light of the election giving a Republican President and Republican-led Congress power to shape federal labor relations policy. Although President-elect Donald Trump has so far remained relatively quiet on his plans for the NLRB, he will likely fill the Board’s two empty seats with pro-business appointees. This new Board majority may return to earlier agendas and stave off or even turn back the Board’s increasingly aggressive labor-friendly decisions and initiatives, including issues surrounding independent contractors. We will continue to monitor these developments as we wait to see the effect the election may have on labor relations, particularly for the airline industry and its contractors.