Airway Cleaners LLC

National Labor Relations Board - Board DecisionsApr 18, 2016

363 NLRB No. 166 (N.L.R.B. 2016)

363 NLRB No. 166 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. Airway Cleaners, LLC and Local 32BJ, Service Em- ployees International Union and Local 660, United Workers of America. Case 29–RC– 153440 April 18, 2016 ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND HIROZAWA The Intervenor’s Request for Review of the Regional Director’s Decision and Direction of Election is denied as it raises no substantial issues warranting review.1 1 We agree with the Regional Director that the Intervenor has failed to establish jurisdictionally significant changes since the Board asserted jurisdiction over the Employer in Airway Cleaners, LLC, 362 NLRB No. 87 (2015), after the National Mediation Board concluded, in Air- way Cleaners, LLC, 41 NMB 262 (2014), that the Employer was not covered by the Railway Labor Act. We also reject the Intervenor’s contention that the Board’s jurisdiction is called into question by our decision in Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island Recyclery, 362 NLRB No. 186 (2015) (Browning- Ferris), on the theory that, under the standard stated in that case, the Employer might be a joint employer with an air carrier exempt from the Board’s jurisdiction pursuant to Sec. 2(2) of the Act. The Board stated in Browning-Ferris that its decision in that case did not “modify any other legal doctrine, create ‘different tests’ for ‘other circumstances,’ or change the way that the Board’s joint-employer doctrine interacts with other rules or restrictions under the Act.” Browning-Ferris, above, slip op. at 20 fn. 120. Moreover, contrary to our concurring colleague’s arguments, the fact that the Employer may potentially be a joint em- ployer with an air carrier beyond our jurisdiction does not change the fact that the Board does not employ a joint-employer analysis to deter- mine jurisdiction. See Management Training Corp., 317 NLRB 1355, 1358 fn. 16 (1995) (“[W]e will not employ a joint employer analysis to determine jurisdiction. Whether the private employer and the exempt entity are joint employers is irrelevant. The fact that we have no juris- diction over governmental entities and thus cannot compel them to sit at the bargaining table does not destroy the ability of private employers to engage in effective bargaining over terms and conditions of em- ployment within their control.”); see also Browning-Ferris, supra, slip op. at 13 fn. 70. We also reject our colleague’s reliance on Northwestern University, 362 NLRB No. 167 (2015), as an example of the Board declining to assert jurisdiction because it lacks jurisdiction over other employers in the same industry and asserting jurisdiction would not promote uni- formity and stability in labor relations. As we expressly emphasized in Northwestern, that consideration was “peculiar” to that case because other industries—such as the industry here—“are not characterized by the degree of interrelationship present among and between teams in a sports league.” Id., slip op. at 5 fn. 22. Moreover, here the Board has previously asserted jurisdiction over the Employer, the NMB has de- clined to assert jurisdiction over the Employer, and there is no evidence that the Employer’s competitors are not subject to the Board’s jurisdic- tion. We agree with the Regional Director that the hearing officer did not abuse her discretion by closing the hearing despite the possibility that Dated, Washington, D.C. April 18, 2016 ______________________________________ Mark Gaston Pearce, Chairman ______________________________________ Kent Y. Hirozawa, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Member Miscimarra, concurring. The Employer provides cleaning and maintenance ser- vices for various air carriers at John F. Kennedy Interna- tional Airport, and it has repeatedly taken the position that it is exempt from the Board’s jurisdiction and in- stead subject to the jurisdiction of the National Mediation Board (NMB) under the Railway Labor Act (RLA) due to the control allegedly asserted over its operations by air carriers that are themselves subject to the RLA. See Sec. 2(2) of the Act (excluding from the definition of “em- ployer” “any person subject to the Railway Labor Act”). The National Mediation Board (NMB) rejected the Em- ployer’s position in Airway Cleaners, LLC, 41 NMB 262 (2014), and the National Labor Relations Board (NLRB) thereafter asserted jurisdiction over the Employer in Air- way Cleaners, LLC, 362 NLRB No. 87, slip op. at 1 fn. 2 (2015). The Intervenor, Local 660 of the United Work- ers of America, now contends that more recent events require the NLRB to reverse its 2015 decision and find that the Employer is outside the NLRB’s jurisdiction.1 I reject Local 660’s claim, but only because of the two reasons set forth in Part A below.2 However, for the rea- sons set forth in Part B, I believe that Local 660 has “a few” documents responsive to a subpoena served on the Employer by the Intervenor remained unproduced. As the Regional Director found, the Employer produced the “vast majority of documents” sought by the Intervenor regarding instances of air carrier control over the Employer’s operations and discipline of employees, and the marginal probative value of any additional documents regarding that subject did not justify the further delay that leaving the hearing open would have occasioned. 1 For the purposes of this case only, the Employer did not challenge the Board’s jurisdiction. 2 I also agree with my colleagues that the hearing officer did not abuse her discretion by closing the hearing despite the possibility that “a few” documents responsive to the Intervenor’s subpoena remained unproduced. Like my colleagues, I believe that the hearing officer reasonably concluded that the probative value of any remaining docu- ments did not justify a delay in this case where the “vast majority” of responsive documents had already been produced and the remaining documents, if any, appeared to be cumulative at best. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 raised a substantial issue regarding the potential lack of Board jurisdiction. A. The Board Should Exercise Jurisdiction Over the Employer For two reasons, I concur with the Board’s exercise of jurisdiction in the instant case, notwithstanding the ar- guments raised by Local 660, which I believe are com- pelling for the reasons discussed in Part B of this opin- ion. First, the Board gives substantial deference to the NMB’s jurisdictional determinations, see, e.g., DHL Worldwide Express, Inc., 340 NLRB 1034 (2003), and the NMB’s decision to decline jurisdiction over the Em- ployer, although not unanimous,3 supports a finding that the Board has jurisdiction in the instant case. Failure to assert jurisdiction in the face of the NMB’s decision would leave the Employer subject to neither statute, con- demning the Employer and its employees to a jurisdic- tional “no-man’s land.” Congress has expressed its dis- approval of such a “no-man’s land” in another context, and I believe it would be contrary to the intent of Con- gress to create one here.4 Second, I disagree with the joint-employer standard adopted by the Board in BFI Newby Island Recyclery5(Browning-Ferris), and that standard furnishes the basis of Local 660’s jurisdictional argument. Local 660 contends that (i) the Board’s decision in Browning- Ferris effected a “seminal change” in the joint-employer standard that applies under the National Labor Relations Act (NLRA); (ii) under this new standard, Airway Cleaners must be regarded as a joint employer with air carriers subject to the RLA; and (iii) “given this joint employer status, the Board cannot assert jurisdiction in this matter.” I believe this argument by Local 660 raises 3 NMB Member Geale, who is now Chairman of the NMB, dissent- ed from the NMB majority’s opinion in Airway Cleaners. See 41 NMB 262 (Member Geale, dissenting in relevant part). 4 See Sec. 14(c) (authorizing NLRB to decline jurisdiction over cer- tain labor disputes, but providing that “[n]othing in this Act shall be deemed to prevent or bar any agency or the courts of any State or Terri- tory . . . from assuming and asserting jurisdiction over labor disputes over which the [NLRB] declines . . . to assert jurisdiction”). Sec. 14(c) eliminated a jurisdictional “no-man’s land” that had previously existed because states were prohibited from acting in certain cases where the Board had elected to decline jurisdiction, a state of affairs that Congress disfavored. See Cong. Record (Senate) 3524 (March 12, 1959) (re- marks of Sen. McClellan) (leaving parties with no remedy in cases where NLRB declined jurisdiction but states were prevented from acting was an “absurd and unhealthy situation”), 2 Leg. History Labor- Management Reporting and Disclosure Act of 1959, at 1007; Cong. Record (House) 14492 (Aug. 13, 1959) (remarks of Rep. Smith) (no- man’s land denies employers and employees “equal protection of the laws”), 2 Leg. History Labor-Management Reporting and Disclosure Act of 1959, at 1664. 5 362 NLRB No. 186 (2015). substantial issues, and under the expansive joint- employer standard the Board adopted in Browning- Ferris, it would be improper for the Board to assert ju- risdiction over Airway Cleaners. See Part B below. However, I do not support relinquishing jurisdiction on this basis because I disagree with the Browning-Ferris joint-employer standard for the reasons that former Member Johnson and I explained at length in our Brown- ing-Ferris dissenting opinion.6 Accordingly, although I am sympathetic to the position asserted by Local 660, I agree that the Board should assert jurisdiction here, espe- cially given the NMB’s finding (albeit in a divided deci- sion) that it lacks jurisdiction over Airway Cleaners. B. Reasons Why Browning-Ferris Warrants a Finding that the Board Lacks Jurisdiction The Board majority does not disclaim the applicability of Browning-Ferris to the potential joint-employer status of Airway Cleaners and its air carrier clients, which are subject to the RLA, not the NLRA. Thus, I believe Local 660 raises a substantial issue regarding the absence of NLRB jurisdiction here. In fact, Member Johnson and I alluded to this precise potential problem in our Brown- ing-Ferris dissent. There, Member Johnson and I dis- cussed a hypothetical service company, CleanCo, and its Clients A, B and C. In a paragraph headed “Potential Board Jurisdiction Over Some Entities and Not Others,” we stated in relevant part: The Board does not have jurisdiction over . . . railways or airlines that are subject to the Railway Labor Act. . . . If CleanCo is subject to the NLRA, but Cli- ents A, B, or C fall within one or more of the exempt categories identified above, the majority’s new stand- ard will create complex questions about whether the Board may lack jurisdiction over particular “joint” employer(s).7 One of my objections to the expansive joint-employer standard adopted in Browning-Ferris (though certainly not the only objection) was that it could preclude the Board from asserting jurisdiction when some joint- employer entities are subject to the RLA. This situation is made worse by the Board majority’s holding in Browning-Ferris that when two entities constitute a joint employer, the Board requires each entity to engage in 6 Id., slip op. at 21–50 (Members Miscimarra and Johnson, dissent- ing). 7 Id., slip op. at 40 (Members Miscimarra and Johnson, dissenting) (emphasis added). AIRWAY CLEANERS, LLC 3 bargaining “with respect to such terms and conditions which it possesses the authority to control.”8 To the extent that the Browning-Ferris standard makes Airway Cleaners a joint employer together with its air carrier customers, then Airway Cleaners cannot conceiv- ably satisfy the bargaining obligations imposed under Browning-Ferris because its other joint-employer entities are not subject to the NLRA. In a different context, simi- lar considerations prompted the Board, in Northwestern University,9 to decline jurisdiction over Northwestern’s grant-in-aid scholarship football players because every other school in Northwestern’s Big Ten conference and 8 Id., slip op. at 16. In my view, the jurisdictional problems created by Browning-Ferris put that decision at odds with Management Train- ing Corp., 317 NLRB 1355 (1995), where a Board majority held that the Board’s lack of jurisdiction over an exempt government entity that controls the economic terms of a joint employer’s employees would not preclude the Board from selectively imposing NLRA bargaining obli- gations regarding noneconomic terms on the other entity (a private contractor) within that joint-employer pair. Id. at 1358–1359. In any event, I agree with the views expressed by former Member Cohen in Management Training, who dissented from the Board majority’s asser- tion of jurisdiction over an employer when the Board lacks jurisdiction over the entity that controls economic terms and conditions of employ- ment. Id. at 1360–1362 (Member Cohen, dissenting). 9 362 NLRB No. 167 (2015). the overwhelming majority of the University’s competi- tors in the NCAA Division I Football Bowl Subdivision (FBS) are public institutions over which the Board lacks jurisdiction.10 Accordingly, for the reasons stated above, I concur in the Board’s exercise of jurisdiction in the instant case. Dated, Washington, D.C. April 18, 2016 ______________________________________ Philip A. Miscimarra, Member NATIONAL LABOR RELATIONS BOARD 10 Id., slip op. at 5. The fact that nearly all of Northwestern’s foot- ball competitors are public universities over which the Board lacks jurisdiction prompted the Board to state: “Under these circumstances, there is an inherent asymmetry of the labor relations regulatory regimes applicable to individual teams. In other contexts, the Board’s assertion of jurisdiction helps promote uniformity and stability, but in this case, asserting jurisdiction would not have that effect because the Board cannot regulate most FBS teams. Accordingly, asserting jurisdiction would not promote stability in labor relations.” Id.