ALLIED AVIATION SERVICES COMPANY OF NEW JERSEY

National Labor Relations Board - Board DecisionsAug 19, 2015

362 NLRB No. 173 (N.L.R.B. 2015)

362 NLRB No. 173 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. Allied Aviation Service Company of New Jersey and Local 553, International Brotherhood of Team- sters, AFL–CIO. Case 22–CA–127150 August 19, 2015 DECISION AND ORDER BY MEMBERS MISCIMARRA, HIROZAWA, AND JOHNSON This is a refusal-to-bargain case in which the Re- spondent is contesting the Union’s certification as bar- gaining representative in the underlying representation proceeding. Pursuant to a charge filed on April 22, 2014, by Local 553, International Brotherhood of Teamsters, AFL–CIO, the Union, the General Counsel issued the complaint on May 6, 2014, alleging that Allied Aviation Service Company of New Jersey, the Respondent, has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s certification in case 22–RC– 077044. (Official notice is taken of the record in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g). Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer, admitting in part and denying in part the allegations in the complaint, and asserting affirmative defenses. On May 27, 2014, the General Counsel filed a Motion for Summary Judgment and a memorandum in support. On May 30, 2014, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent filed a response. On July 17, 2014, the General Counsel filed a letter brief in reply to the Respondent’s Response. Ruling on Motion for Summary Judgment The Respondent admits its refusal to recognize and bargain, but contests the validity of the certification on the basis of its contentions, raised and rejected in the underlying representation proceeding, that the Board erred in finding the unit to be appropriate and in certify- ing the Union as the exclusive collective-bargaining rep- resentative of the unit.1 In addition, the Respondent ar- 1 Relying on the decision of the Supreme Court in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), the Respondent also argues that the Board was not properly constituted and, therefore, lacked the requisite authority to render any decision or determination in Case 22-RC-077044. We reject this argument. As an initial matter, this case does not raise a quorum issue because a panel of the current Board, which includes five Board Members who were confirmed by the United States Senate, issued the underlying Decision and Certification of Representative in Case 22–RC–077044. gues for the first time in its response to the Notice to Show Cause that the Board lacks jurisdiction in the in- stant matter because the Respondent and its employees are subject to the Railway Labor Act. We reject this ar- gument. The record does not support the Respondent’s argu- ment that the employees in the unit found appropriate are indirectly controlled by or under common control with a carrier or carriers to an extent sufficient to invoke the jurisdiction of the National Mediation Board under the Railway Labor Act. In recent cases assessing whether it has jurisdiction over employers who supply services to an airline carrier or carriers but are not themselves en- gaged in the transportation of freight or passengers, the NMB has focused on whether the carrier or carriers exer- cise “meaningful control over personnel decisions.” See, e.g., Airway Cleaners, LLC, 41 NMB 262, 268 (2014) (control exercised is “not the meaningful control over personnel decision[s] required to establish RLA jurisdic- tion”); see also Menzies Aviation, Inc., 42 NMB 1, 7 (2014) (no jurisdiction where carrier “does not exercise ‘meaningful control over personnel decisions’” (quoting Airway Cleaners)); Bags, Inc., 40 NMB 165, 170 (2013) (carrier control “is not the type of meaningful control over personnel decisions [sufficient] to warrant RLA jurisdiction”). Where it has not found such “meaningful control,” the NMB has emphasized in particular the ab- sence of control over hiring, firing, and/or discipline. See Menzies Aviation, 42 NMB at 7 (noting, in finding that airline does not exercise meaningful control over personnel decisions, that it “does not hire, fire, or rou- tinely discipline” service provider’s employees); Airway Cleaners, 41 NMB at 269 (airline “does not have suffi- cient control over the hiring, firing and discipline of [ser- vice provider’s] employees to establish RLA jurisdic- tion”); Bags, Inc., 40 NMB at 170 (service provider not subject to RLA where airlines “do not have significant control over the hiring, firing and discipline of [provid- er’s] employees”). To the extent that the Respondent argues that the Board lacked a quor- um when it denied the Request for Review of the Regional Director’s Decision and Direction of Election, we find that issue to have been mooted by the intervening decision and certification. In this regard, we note that the Respondent reiterated its arguments regarding the appro- priateness of the unit both before the judge who conducted the hearing on the challenged ballots and in its exceptions to the judge’s recom- mended decision, and that a panel of the fully-confirmed Board consid- ered and rejected these arguments when it certified the Union as the exclusive collective-bargaining representative of the unit found appro- priate. Further, the absence of a Board quorum does not impair the Region- al Director’s authority to process representation petitions. Durham School Services, 361 NLRB No. 66 (2014). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2 Here, the Respondent does not argue that the airlines at Newark exercise “meaningful control over personnel decisions,” and the record contains no such evidence. Rather, the elements of control identified by the Re- spondent are “no greater than that found in a typical sub- contractor relationship,” Menzies Aviation, 42 NMB at 7, which the NMB has made clear is insufficient for asser- tion of its jurisdiction. Id. We note that Member Geale dissented in part in Airway Cleaners, 41 NMB at 273– 280, and he dissented in Menzies Aviation, 42 NMB at 7– 9. However, the evidence of carrier control in the instant case also falls substantially short of the considerations relied upon in Member Geale’s dissents. As for the issues raised by Respondent regarding su- pervisory status and the appropriateness of the bargain- ing unit, all of them were or could have been litigated in the prior representation proceeding. The Respondent does not offer to adduce at a hearing any newly discov- ered and previously unavailable evidence, nor does it allege any special circumstances that would require the Board to reexamine the decisions made in the representa- tion proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this unfair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accordingly, we grant the Motion for Summary Judg- ment.2 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a Delaware cor- poration with an office and place of business at the New- ark Liberty International Airport in Elizabeth, New Jer- sey, has been engaged in providing fueling services for the commercial aviation industry. During the 12-month period preceding issuance of the complaint, in conducting its operations described, the Respondent purchased and received at its Newark Liber- ty International Airport, Elizabeth, New Jersey location goods and supplies valued in excess of $50,000 directly from suppliers located outside the State of New Jersey. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. 2 The Respondent’s request that the complaint be dismissed is there- fore denied. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the representation election held on June 7, 2012, the Union was certified on December 3, 2013, as the exclusive collective-bargaining representative of the employees in the following appropriate unit (the unit): All full-time and regular part-time Fueling Supervisors/ Dispatchers/Operations Supervisors, Maintenance Su- pervisors (including Parts Supervisors and Parts Per- sons), and Tank Farm Supervisors employed by the Employer at its Newark Liberty International Airport, Elizabeth, New Jersey location, but excluding all fuelers, mechanics, utility persons, tank farm persons, leads, office clerical employees, managers, guards, and supervisors as defined by the Act. The Union continues to be the exclusive collective- bargaining representative of the unit employees under Section 9(a) of the Act. B. Refusal to Bargain On April 1, 2014, the Union, by certified letter, re- quested that the Respondent recognize it as the exclusive collective-bargaining representative of the unit and bar- gain collectively with it as the exclusive collective- bargaining representative of the unit. On April 11, 2014, the Respondent, by certified letter, failed and refused to recognize and bargain with the Union as the exclusive collective-bargaining representative of the unit. We find that this failure and refusal constitutes an un- lawful failure and refusal to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing since about April 11, 2014, to recognize and bargain with the Union as the exclusive collective-bargaining representative of employees in the appropriate unit, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to bargain on request with the Union, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by law, we shall construe the initial period of the certifi- cation as beginning the date the Respondent begins to 3 ALLIED AVIATION SERVICE CO. OF NEW JERSEY bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); accord Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964). ORDER The National Labor Relations Board orders that the Respondent, Allied Aviation Service Company of New Jersey, Elizabeth, New Jersey, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize and bargain with Local 553, International Brotherhood of Teamsters, AFL–CIO as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit on terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time Fueling Supervisors/ Dispatchers/Operations Supervisors, Maintenance Su- pervisors (including Parts Supervisors and Parts Per- sons), and Tank Farm Supervisors employed by the Employer at its Newark Liberty International Airport, Elizabeth, New Jersey location, but excluding all fuelers, mechanics, utility persons, tank farm persons, leads, office clerical employees, managers, guards, and supervisors as defined by the Act. (b) Within 14 days after service by the Region, post at its facility in Elizabeth, New Jersey, copies of the at- tached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous plac- es, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, 3 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all cur- rent employees and former employees employed by the Respondent at any time since April 11, 2014. (c) Within 21 days after service by the Region, file with the Regional Director for Region 22 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. August 19, 2015 ______________________________________ Philip A. Miscimarra, Member ______________________________________ Kent Y. Hirozawa, Member ______________________________________ Harry I. Johnson, III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4 WE WILL NOT fail and refuse to recognize and bargain with Local 553, International Brotherhood of Teamsters, AFL–CIO as the exclusive collective-bargaining repre- sentative of the employees in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, on request, recognize and bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employ- ees in the following bargaining unit: All full-time and regular part-time Fueling Supervisors/ Dispatchers/Operations Supervisors, Maintenance Su- pervisors (including parts supervisors and parts per- sons), and Tank Farm Supervisors employed by us at our Newark Liberty International Airport, Elizabeth, New Jersey location, but excluding all fuelers, mechan- ics, utility persons, tank farm persons, leads, office cler- ical employees, managers, guards, and supervisors as defined by the Act. ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY The Board’s decision can be found at www.nlrb.gov/case/22-CA-127150 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.