Oxford Electronics, Inc. d/b/a Oxford Airport Technical Services, Worldwide Flight Services, Inc. (W

National Labor Relations Board - Board Decisions

Feb 23, 2018

13-CA-115933 (N.L.R.B. Feb. 23, 2018)

UNITED STATES GOVERNMENT
NATIONAL LABOR RELATIONS BOARD
1015 Half St., S.E.
Washington, D.C. 20570-0001

February 23, 2018
Ms. Mary L. Johnson
General Counsel
National Mediation Board
1301 K Street, NW-- Suite 250 East
Washington, DC 20005-7011
Re: Oxford Electronics d/b/a Oxford Airport
Technical Services,
Case 13-CA-115933
Dear Ms. Johnson:
The above-captioned unfair labor practice proceeding is currently pending before
the National Labor Relations Board. A question has been presented whether the
operations of the Respondents arguably fall within the jurisdiction of the Railway Labor
Act rather than the National Labor Relations Act.
The Board respectfully requests that you review the record and provide the
NLRB with your opinion as to whether the National Mediation Board has jurisdiction
over the Employer Respondents.1 The issues are set forth in the attached
Member Pearce would not refer this case to the National Mediation Board. "The
Board and the NMB each has independent authority to decide whether the RLA
bars the NLRB's exercise of jurisdiction." Allied Aviation Service Company of New
Jersey v. NLRB, 854 F.3d 55, 62 (D.C. Cir. 2017). He notes that "under 'long
standing practice,' the NLRB will not refer jurisdictional questions to the NMB in
situations where NMB precedent provides a clear answer," ABM Onsite Services-
West, Inc. v. NLRB, 849 F.3d 1137, 1140 (D.C. Cir, 2017), (citing United Parcel
Service v. NLRB, 92 F.3d 1221, 1228 (D.C. Cir. 1996)). Here, the administrative
law judge developed a complete record and issued a well-reasoned decision finding
that the NMB would not assert jurisdiction over the Employer Respondents. In
affirming the administrative law judge's conclusion on the jurisdictional issue,
Member Pearce would find that the Employer Respondents' evidence falls short of
establishing that they were directly or indirectly controlled by air carriers under both
the NMB's traditional six-factor test and recent NMB precedent. Specifically, he
observes that CICA TEC's lack of involvement in personnel decisions, including the
hiring, firing, supervision, evaluation, or training of the Respondents' employees, as
well as the fact that those employees wear the Respondents' uniforms and are not
held out to the public as CICA TEC's employees, strongly suggest insufficient
Administrative Law Judge's Decision and Recommended Order and the attached
transcripts and exhibits from the hearing held in the NLRB unfair labor practice
proceeding in this case. Should you require further information about the record in the
unfair labor practice proceeding, please contact Ms. Roxanne Rothschild, Deputy
Executive Secretary, at (202) 273-2917
The Board also requests that, in rendering your opinion, you take note of the
court's opinion in ABM Onsite Services — West v. NLRB, 849 F.3d 1137 (D.C. Cir
2017). (Following the court's remand, the Board is also seeking your opinion on
jurisdiction in that case.)2
carrier control to confer NMB jurisdiction. Cf. Air Serv Corp., 39 NMB 477, 480-481
(2012) (request for reconsideration) (carrier's reportorial role in company
disciplinary decisions not sufficient control for NMB jurisdiction). CICA TEC's
involvement in the Respondents' decisions about how to conduct their businesses
and its access to their operations and records are no greater than those found in a
typical subcontractor relationship or in cases where the NMB concluded that it did
not have jurisdiction. See, e.g., Air Serv Corp., 39 NMB 450, 456 (2012) (carrier
reserved rights to unilaterally set and alter company schedules, to impose monetary
penalties for deviations or employee infractions, and to audit company records); Air
BP, A Division of BP Oil, 19 NMB 90, 91(1991) (carrier required "around the clock"
service in accordance with carrier standards and time limits and reserved right to
inspect company operations to ensure compliance with carrier standards, training
and recordkeeping requirements). Member Pearce observes that the carrier control
over manner of business, access to operations and records, and role in personnel
decisions as found by NMB Member Geale in his dissenting opinions'in Airway
Cleaners, LLC, 41 NMB 262, 273-280 (2014) (applying six-factor test), and Menzies
Aviation, Inc., 42 NMB 1, 7-9 (2014) (same), was greater than CICA TEC's control
here, and notes that in those cases Member Geale also found that the carriers
supervised and trained company employees, at least some of whom wore carrier
uniforms. Therefore, Member Pearce would find that CICA TEC's control here falls
"substantially short" of the facts upon which Member Geale would have relied to
find NMB jurisdiction in those cases and falls short under the traditional six-factor
test. See Allied Aviation Service Company of New Jersey v. NLRB, 854 F.3d at 63
(approving Board decision that "acknowledged the relevance of all of the factors
and concluded that [company's] evidence fell short even under the traditional six-
factor test), enfg. 362 NLRB No. 173 (2015), cert. denied 138 S.Ct. 458 (2017).
COntrary to their dissenting colleague, Chairman Kaplan and Member McFerran do
not believe it is clear what standard the NMB will apply in response to the court's
opinion in ABM Onsite Services-West, Inc. or what the NMB's opinion will
consequently be with respect to which agency has jurisdiction, based on the facts
presented here, under the standard it endorses.
2
The Board would appreciate your opinion in a form appropriate for citation or
quotation in any decision the NLRB may subsequently issue. It is respectfully
requested that the enclosed formal documents be returned with your opinion.
Sincerely,
oatA,tiAm3b.Q.AAI‘,t-
Cathleen D. Perry
Assistant Solicitor
Enclosures
cc: Ms. Roxanne Rothschild
3
e