Aircraft Service International, Inc.

National Labor Relations Board - Board Decisions

Jun 9, 2017

365 NLRB No. 94 (N.L.R.B. 2017)

365 NLRB No. 94
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Aircraft Service International, Inc. and Communica-
tions Workers of America, Petitioner and Local
74, United Service Workers Union, International
Union of Journeymen and Allied Trades. Case
12–RC–187676
June 9, 2017
ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
The National Labor Relations Board has carefully con-
sidered the Employer’s request for review of the Region-
al Director’s Decision and Direction of Election. The
request for review is denied as it raises no substantial
issues warranting review.
In denying review, we agree with the Regional Direc-
tor that the Employer’s operation at Orlando Internation-
al Airport is not covered by the Railway Labor Act
(RLA).1 Although the Employer’s Request for Review
does not specifically argue that its Orlando operation
meets the National Mediation Board’s (NMB) two-part
test for determining whether an employer is subject to
the RLA, we find that with respect to the second part of
that test—whether the employer is directly or indirectly
owned or controlled by, or under common control with, a
carrier or carriers—the Orlando operation is clearly sub-
ject to even less carrier control than in previous cases
where the NMB has found an employer not covered by
the RLA. See Miami Aircraft Support, 21 NMB 78
(1993). The Employer, in fact, has admittedly presented
insufficient evidence to satisfy any of the six factors
comprising that part of the test—extent of a carrier’s
control over the manner in which the employer conducts
its business, access to the employer’s operations and rec-
ords, role in personnel decisions, degree of supervision
exercised, control over training, and whether the employ-
ees in question are held out to the public as carrier em-
ployees. The Employer has also essentially stipulated
that it has no such evidence. Accordingly, the evidence
of carrier control in the instant case falls substantially
short of the considerations relied upon by Member Geale

1 We also agree with the Regional Director that even if the agree-
ment executed on November 5, 2016 did not require ratification, or if
ratification was required and did occur, the petition would still be time-
ly, given the conflicting contract duration dates in that agreement. See
South Mountain Healthcare & Rehabilitation Center, 344 NLRB 375
(2005).
in his dissents in Airway Cleaners, 41 NMB 262 (2014),
and Menzies Aviation, 42 NMB 1 (2014).
This is hardly surprising, since the Employer’s service
contract is solely with the Greater Orlando Aviation Au-
thority (a governmental body), not with any carriers.
Our dissenting colleague fails to take note of the signifi-
cance of this critical feature, which distinguishes this
case from the cases he cites in which the NMB found
that this Employer’s operations at other airports were
covered by the RLA.
We also reject the Employer’s and our dissenting col-
league’s contention that previous NMB decisions finding
that nationwide units of baggage handlers and other em-
ployees of this Employer are appropriate at other airport
facilities are relevant to determining whether the NMB
has jurisdiction over the Employer’s operation in Orlan-
do, Florida, at issue in this case. No party contested the
NMB’s jurisdiction in any of those cases, and the issue
of unit appropriateness is addressed by the NMB (as by
the NLRB) only after the threshold requirement of juris-
diction has been met. See, e.g., Aircraft Service Interna-
tional Group, 40 NMB 43, 45 fn. 2, 50 (2012). As our
dissenting colleague acknowledges, in cases involving
this Employer where the NMB had to determine whether
a particular operation came within its jurisdiction, the
NMB has consistently applied its two-part test for carrier
control to the facility at issue. As he also agrees, under
the application of any variant of that test in this case
there is insufficient carrier control at the Orlando loca-
tion to establish NMB jurisdiction.2
Moreover, although it is true that the RLA, by its
terms, tends to favor common carrier bargaining units of
a “class or craft,” the question here is whether a non-
carrier employer, more peripheral to the airline industry,
falls under the coverage of the RLA, a determination that
requires the case-by-case review the NMB established
long ago. Under the NMB’s respective criteria for juris-
diction and unit appropriateness, a petitioned-for opera-
tion at a particular airport might be found to be covered
by the RLA but not to constitute an independent appro-
priate unit. There is no inconsistency in that possibility.

2 We have recently referred three other cases that implicate the
NMB’s two-part jurisdiction test—Prime Flight Aviation Services, Inc.,
2–RC–186447, Aircraft Service International, Inc., 28–RC–195332,
and ABM Onsite Services—West, 19–RC–44377—to the NMB for
clarification on how to assign weight to the factors used in that test in
the light of ABM Onsite Services—West v. NLRB, 849 F.3d 1137 (D.C.
Cir. 2017).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Dated, Washington, D.C. June 9, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting in part.
Employer Aircraft Service International, Inc. (Aircraft
Service) employs baggage handling encoder operators
(operators) at the Orlando International Airport. Peti-
tioner Communications Workers of America (CWA or
Union) has filed an election petition with the National
Labor Relations Board (NLRB) seeking to represent Air-
craft Service’s Orlando operators pursuant to the Nation-
al Labor Relations Act (NLRA). However, the NLRA
excludes from its coverage “any person subject to the
Railway Labor Act”1 (RLA), and the National Mediation
Board (NMB) has found, in every prior NMB decision
involving Aircraft Service, that Aircraft Service is sub-
ject to the RLA,2 and that Aircraft Service employees can
only be organized as part of a nationwide bargaining
unit.3 Similarly, in a prior NLRB case involving Aircraft
Service, the NLRB denied review of an Acting Regional
Director’s decision that dismissed an NLRB representa-
tion petition seeking an election in a single-location bar-
gaining unit.4 In that case, the Acting Regional Director
reasoned that the NMB had determined that Aircraft Ser-
vice was subject to the RLA and that a unit limited to a
single location was inappropriate.5 The prior NMB cases
involving Aircraft Service arose at locations other than
the Orlando Airport; and in cases addressing jurisdiction,

1 NLRA Sec. 2(2).
2 See, e.g., Aircraft Serv. Int’l Group, Inc., 33 NMB 258 (2006)
(Employer’s Albuquerque Airport operations are subject to the RLA);
Aircraft Serv. Int’l Group, Inc., 33 NMB 200 (2006) (the Employer’s
Pittsburgh Airport operations are subject to the RLA); Signature Flight
Support/Aircraft Serv. Int’l Inc., 32 NMB 30 (2004) (Employer’s
LaGuardia Airport operations are subject to the RLA); Aircraft Service
International Group, Inc., 31 NMB 361 (2004) (the Employer’s Detroit
Airport operations are subject to the RLA).
3 See, e.g., Aircraft Service Int’l Group, 40 NMB 43 (2012); Aircraft
Service Int’l Group, 31 NMB 508 (2004).
4 Aircraft Service Int’l, Inc., 31–RC–100047 (Oct. 22, 2013) (deny-
ing review of Acting Regional Director’s April 2, 2013 Decision and
Order).
5 Id. (citing Aircraft Service Int’l Group, supra, 40 NMB at 43).
the NMB applied its two-part test at each location to de-
termine whether Aircraft Service’s operations at that
location were sufficiently controlled by a carrier to be
subject to NMB jurisdiction under the RLA.6
In the instant case, the NLRB considers another repre-
sentation petition filed pursuant to the NLRA, in which
the Union seeks to represent Aircraft Service employees
in a single-location unit. Unlike the prior cases described
above, the Regional Director here found that the NLRB
has jurisdiction, not the NMB, and that a single-location
bargaining unit is appropriate.
I concur with my colleagues’ finding that, if the Board
applies the NMB’s two-part jurisdictional test to Aircraft
Service’s operations in Orlando, there would be insuffi-
cient carrier control at that location to establish NMB
jurisdiction.7 However, in ABM Onsite, where the D.C.
Circuit Court of Appeals denied enforcement of an
NLRB order that found the NLRB had jurisdiction rather
than the NMB, the court’s denial of enforcement
stemmed from the NLRB’s reliance on recent NMB ju-
risdictional rulings that were inconsistent with prior
NMB decisions, where neither the NLRB nor the NMB
provided a reasoned explanation for the inconsistency.
Here, I believe the request for review raises substantial
issues regarding a different kind of inconsistency—an
inconsistency within the NMB’s own decisions relating
to Aircraft Service, and between those decisions and the
Regional Director’s findings in this case. As noted
above, numerous NMB decisions have concluded that the
RLA applies to Aircraft Service and that Aircraft Service
employees may only be organized as part of a nationwide
bargaining unit. Yet, in prior cases, the NMB appears to
examine the extent of carrier control at a single location,
not at all locations.8 The Regional Director here likewise

6 The RLA originally applied only to common carriers. However,
Congress expanded the RLA to cover any employer who “is directly or
indirectly owned or controlled by or under common control with any
carrier” and “operates any equipment or facilities or performs any
service” related to transportation. RLA Sec. 1, 45 U.S.C. § 151 (quoted
in ABM Onsite Services – West, Inc. v. NLRB, 849 F.3d 1137, 1142
(D.C. Cir. 2017) (ABM Onsite)). When the employer is involved in
airline operations, it is subject to NMB jurisdiction under the RLA if
(1) there exists the requisite direct or indirect carrier ownership or
control, and (2) the employees do work “‘that is traditionally performed
by employees of . . . air carriers.’” ABM Onsite, 849 F.3d at 1142
(quoting Air Serv. Corp., 33 NMB 272, 284 (2006)).
7 In this case, the Regional Director, applying NLRA principles, also
found that Aircraft Service’s collective-bargaining agreement did not
bar the petition. To the extent the NLRA applies to the Employer, I
agree that the collective-bargaining agreement did not operate as a bar
to the petition.
8 Compare International Total Services, 20 NMB 537 (1993) (find-
ing employer’s Logan Airport skycap and pre-board screening opera-
tions subject to the RLA, relying on evidence that those operations
were “substantially similar” to the employer’s operations at other air-
AIRCRAFT SERVICE INTERNATIONAL, INC. 3
engaged in a single-location analysis, resulting in his
findings that the RLA does not apply to Aircraft Service,
and a single-location bargaining unit limited to Orlando

ports where NMB asserted jurisdiction as well as evidence “that airlines
assert control over ITS’s daily operations and the manner in which ITS
does business.”).
My colleagues treat the NMB decisions rejecting a single-location
unit of Aircraft Service employees as irrelevant here because no party
contested the NMB’s jurisdiction in any of those cases. Nonetheless,
they acknowledge that the RLA’s statutory scheme, which Congress
extended to cover certain non-carrier employers, see above fn. 6, favors
bargaining units of a “class or craft” regardless of work locations, yet
they fail to resolve the tension between NMB decisions applying the
two-part test for determining jurisdiction at a single location and NMB
decisions finding a single-location unit inappropriate. Neither do they
point to any NMB decision resolving that tension.
The majority also posits that the numerous prior NMB cases involv-
ing the Employer are distinguishable because in those cases the Em-
ployer provided services under contracts with carriers, whereas in this
case the Employer’s contract is with the Greater Orlando Aviation
Authority, a governmental agency that operates the Orlando Airport.
My colleagues, however, cite no case in which the NMB has attached
jurisdictional significance to this distinction. In these circumstances, I
believe the Board should allow the NMB, in the first instance, to make
that determination.
was appropriate. If the prior NMB decisions have cor-
rectly found that Aircraft Service is an RLA-covered
employer subject to NMB jurisdiction and that its em-
ployees may only be organized in nationwide bargaining
units, it would appear incongruous to conclude, at least
without further analysis, that the NMB lacks jurisdiction
over Aircraft Service in Orlando based on an evaluation
of carrier ownership or control at only a single location.
I believe the Board must grant review to provide a “rea-
soned explanation” regarding these issues, or the Board
should refer this matter to the NMB for such an explana-
tion. ABM Onsite, 849 F.3d at 1146 (citations omitted).
Accordingly, as to these issues, I respectfully dissent.
Dated, Washington, D.C. June 9, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD