PrimeFlight Aviation Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 9, 2017

29-CA-177992 (N.L.R.B. Mar. 9, 2017)

JD(NY)-05-17
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
PRIMEFLIGHT AVIATION SERVICES, INC.
and Case 29–CA–177992
29–CA–179767
29–CA–184505
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 32BJ
Brady J. Francisco-FitzMaurice, Esq.
for the General Counsel.
Frank Birchfield, Esq.,
Christopher R. Coxson, Esq.
(Ogletree Deakins, Nash, Smoak & Stewart, P.C.), of
New York, New York and Morristown, New Jersey),
for the Respondent.
Brent Garren, Esq. and
Tom Gottheil, Esq.,
for the Charging Party.
DECISION
Statement of the Case
MINDY E. LANDOW, Administrative Law Judge, Based upon charges filed by Service
Employees International Union, Local 32BJ (Charging Party or Union) against PrimeFlight Aviation
Services, Inc. (PrimeFlight, Respondent or the Employer) an order consolidating cases, amended
consolidated complaint and notice of hearing (complaint) issued in the above-referenced matter.
The complaint alleges that Respondent, a Burns,1 successor, has refused to recognize and bargain
with the Union in violation of Section 8(a)(1) and (5) of the Act and, as a result, has (1) failed to
provide information that is necessary and relevant to collective bargaining; (2) unilaterally changed
employees’ terms and conditions of employment without providing the Union with notice and an
opportunity to bargain by (a) deducting pay from employees’ paychecks to account for unpaid break
time and (b) by changing employee work schedules as discussed below.
The complaint further alleges that Respondent has violated Section 8(a)(1) of the Act by
requiring its employees to sign, as a condition of employment, an unlawful arbitration agreement 2

1 See NLRB v. Burns Security Services, 406 U.S. 272 (1972).
2 On February 10, 2017, Respondent filed a Motion to Partially Stay my ruling with regard to this
paragraph and related allegations of the complaint. The basis for such a motion is that the Supreme
Continued
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and that in June 2016, a supervisor of Respondent threatened employees with discharge because
they engaged in activities in support of the Union.
Respondent filed an answer denying the material allegations of the complaint arguing that
PrimeFlight is outside the jurisdiction of the National Labor Relations Board for unfair labor practice
proceedings because it is a “derivative carrier” under the Railway Labor Act and moreover, that
PrimeFlight is not a Burns successor because an analysis of PrimeFlight’s full complement of
employees demonstrates that predecessor employees comprise less than 40 percent of the
appropriate unit.
The hearing in this matter was held before me on October 18, 19, and 20, 2016.
On the entire record, including my observation of the demeanor of the witnesses, and after
considering the briefs filed by the parties, I make the following
Findings of Fact
Jurisdiction and Labor Organization Status
Commerce Facts
Respondent has admitted those aspects of the complaint which allege basic commerce
jurisdiction. Thus, the record establishes, and I find that at all material times, Respondent has been
a domestic corporation with its principal office and place of business located at 7135 Charlotte Pike,
Suite 100, Nashville, Tennessee, and has places of business located at airports nationwide,
including a place of business located at John F. Kennedy International Airport (JFK Airport) in
Queens, New York. In the course and conduct of its business operations and has been engaged in
the business of providing airport terminal services, including baggage handling, skycap services,
checkpoint services, and wheelchair assistance to JetBlue Airways Corp. (JetBlue) at JFK Airport.
It is further admitted that based upon a projection of its operations since May 9, 2016, at
which time Respondent commenced its operations at JFK Airport, Respondent will annually provide
services valued in excess of $50,000 for JebBlue, an entity which is directly engaged in commerce.
It is also admitted, and I find that at all material times, the Charging Party has been a labor
organization within the meaning of Section 2(5) of the Act.
The issue of whether Respondent is subject to the jurisdiction of the NLRB, thereby
rendering it an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of
the Act is a preliminary question to consider and decide prior to a determination of whether
PrimeFlight committed any of the unfair labor practices alleged in the complaint.
_________________________
Court has granted certiorari for cases which raise, among other things, the issue of whether
arbitration agreements which bar employees from pursuing work-related claims on a collective or
class basis in any forum are violative of the Act. The Charging Party opposed this motion. However,
the General Counsel has taken the position that it does not oppose Respondent’s motion and,
furthermore, has moved to have the relevant parapraphs of the complaint severed and a ruling on
these allegations held in abeyance. Based upon the motion of the General Counsel, concurred with
by the Respondent, I issued an order on February 28, 2017, ordering that the allegations relating to
paragraph 10 of the complaint be severed and held in abeyance pending further decision of the
Court or the Board. Accordingly, I will not discuss them further here.
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The NLRB has Jurisdiction over PrimeFlight’s Employees at Terminal 5 at JFK Airport
Background
JetBlue operates out of terminal 5 at JFK Airport. JetBlue offers certain services to its
customers through independent contractors such as baggage handling, skycap, checkpoint, and
wheelchair services. Prior to May 9, 2016, when PrimeFlight commenced providing services for
JetBlue, an independent contractor known as Air Serv performed the baggage handling, skycap,
and checkpoint services. Another contractor, PAX Assist, performed the wheelchair services.
On March 25, 2015, Air Serv and the Union entered into a recognition agreement which
states that based upon a card check performed by an arbitrator, the Union “has demonstrated
majority support among the full-time and regular part-time employees [excluding statutory
exceptions]” employed by Air Serve at Newark Liberty, John F. Kennedy International, and
LaGurardia Airports. The agreement does not specify which job titles are to be included in the
bargaining unit.
In March 2016, PrimeFlight successfully bid on a contract with JetBlue under which it agreed
to provide all four types of terminal services in the JFK terminal 5 beginning on May 9, 2016. This
relationship was memorialized by two documents: a “General Terms Agreement” (GTO) and a
“Statement of Work” (SOW). In particular, PrimeFlight agreed to provide wheelchair, line queue,
baggage handling, and skycap services commencing on May 9. These matters will be discussed in
further detail below.
Jurisdictional Analysis
Applicable Legal Standards
The protections of the Act extend to those workers who qualify as employees under Section
2(3) of the Act. The term “employee” as defined in the Act, does not include “any individual
employed by an employer subject to the Railway Labor Act.” Instead the Railway Labor Act (RLA)
confers jurisdiction to the National Mediation Board (NMB) when that company is either a common
carrier by air or rail as defined in the RLA, or that company is directly or indirectly owned or
controlled by a rail or air carrier engaged in interstate or foreign commerce, referred to as a
“derivative carrier.”
Historically, when the National Labor Relations Board receives a petition or an unfair labor
practice charge involving employees who work at an airline terminal or facility, and where a party
contends that the NMB has jurisdiction, the NLRB will often request a ruling from the other agency
before proceeding further. And, if the NMB decides that the employer is or is not subject to the
Railway Labor Act, the NLRB will typically defer to such ruling. DHL Worldwide Express, 340 NLRB
1034 (2003). See also, Primeflight Aviation Services, 353 NLRB 467 (2008).3

3 In Primeflight, supra, the contractor performed skycap, wheelchair, baggage, priority parcel,
ticket verification, and passenger services for various airlines at LaGuardia Airport. (That is,
essentially the same type of services that PrimeFlight provides in this case). The Board requested
the NMB to review the record in the representation case and that agency subsequently issued its
opinion that the employer was subject to the Railway Labor Act. Considering the record in light of
the NMB opinion, the Board dismissed the petition on the basis that the employer was subject to the
Railway Labor Act.
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Nevertheless, the NLRB is not required to refer a case to the NMB. In Spartan Aviation
Industries, 337 NLRB 708 (2002), the Board stated:
When a party raises a claim of arguable jurisdiction under the RLA, the Board
generally refers the case to the National Mediation Board (NMB) for an advisory
opinion. However, there is no statutory requirement that the Board first submit a case
to the NMB for an opinion prior to determining whether to assert jurisdiction. United
Parcel Service, 318 NLRB 778, 780 (1995). Although the Board generally makes
such referrals, it will not refer a case that presents a jurisdictional claim in a factual
situation similar to one in which the NMB has previously declined jurisdiction. See,
e.g., Phoenix Systems & Technologies, Inc., 321 NLRB 1166 (1996); E.W. Wiggins
Airways, Inc., 210 NLRB 996 (1974).
In determining whether the NLRB has jurisdiction, it has essentially adopted the same
jurisdictional test as the NMB. In recent cases, a majority of the NMB, has reiterated this test as set
forth in Airway Cleaners LLC, 41 NMB 262, 267–269 (2014) and Air Serv Corp., 39 NMB 450, 459
(2012).
In Air Serv, the NMB discussed a two-part test. First, whether the nature of the work is that
which has been traditionally performed by employees of rail or air carriers. And second, whether the
employer is directly or indirectly owned or controlled by, or under common control with a carrier or
carriers. Both criteria must be met in order for the NMB to assert jurisdiction.
As to the second part of the test, the majority opinion of the NMB was that:
In applying the second part of its jurisdictional test, the Board looks for evidence of
whether a material degree of control exists between the carrier and the employer in
question for the latter to be deemed a carrier. Significant factors include: (1)
Whether the entity’s employees are supervised by the carrier; (2) whether the
employees of the entity . . . act as the carriers’ agents; (3) whether carrier officials
have the ability to make effective recommendations regarding the hiring and firing of
the entity’s employees; (4) whether the entity . . . uses equipment owned by the
carrier to perform its duties; (5) whether the carrier has a significant degree of
control over the training of the entity’s employees, and (6) whether the entity
performs work for more than one company and retains control over its operations.
There, based upon the foregoing standards, the NMB declined to assert jurisdiction
over a contractor that provided shuttle bus transportation services between airport parking
areas and terminal buildings.
In Airway Cleaners, supra at 267–269, the NMB, by majority vote, held that the employer, in
relation to its performance of services at LaGuardia Airport, which consisted of cleaning and
maintenance services, was not within its jurisdiction. The majority opinion stated, inter alia;
To determine whether there is carrier control over a company, the NMB looks at
several factors, including the extent of the carrier’s control over the manner in which
the company conducts its business, access to the company’s operations and records,
role in personnel decisions, degree of supervision of the company’s employees,
whether employees are held out to the public as carrier employees, and control over
employee training.
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As discussed in prior cases, where the Board has not found jurisdiction, a carrier
must exercise “meaningful control over personnel decisions,” and not just the type
of contract found in any contract for services . . . the contract provisions at issue
here are similar to those in Bags. (Bags Inc., 40 NMB 165, 170 (2013)). In that
case carriers provided training to a Bags’ employee, who in turn trained other
employees. The carriers provided equipment to Bags, had the right to bar
employees from the airport if they did not comply with safety or other standards and
reported employee misconduct to Bags. These examples of control were not
sufficient to establish RLA jurisdiction.
In Menzies Aviation Inc., 42 NMB 1 (2014), the NMB concluded that an employer that
provided baggage, ramp, and aircraft servicing functions, mostly for Alaska Airlines at Seattle
Airport, was not subject to the jurisdiction of the NMB. The majority opinion stated:
The evidence . . . demonstrates that carriers at SeaTac do not exercise a sufficient
amount of control over Menzies . . . [The] contract describes a typical relationship
between a carrier and a contractor. The fact that Alaska dictates standards for work
performed is not unusual in a contract for services and does not evidence a
significant degree of control over Menzies’ operations. All contracts specify certain
standards that a company must follow in performing services for a carrier. For
example, in Bags, Inc., 40 NMB at 1666 –1667, the company had to follow the
standard practice of Delta and Delta had the right to bar an employee from the
airport if he or she did not comply with Delta’s appearance or safety standards. . . .
Likewise, the fact that Alaska auditors inspect work performance does not establish
this type of control. A Menzies employee reported that Alaska managers may
directly notify a Menzies employee of a small infraction but performance problems
are reported to and all discipline is handled by Menzies management. The contract
between Menzies and Alaska provides that Menzies “shall not be required by
Alaska to terminate or discipline any of its own employees in breach of laws or
(Menzie’s) employee disciplinary processes as set out in its employee handbook.”
So while Alaska may report performance problems, Menzies determines the
appropriate discipline following it’s own discipline process. . . .
Menzies further argues that Alaska’s authority to require it to remove from Alaska’s
operations employees who it finds unacceptable, evidences the required control for
RLA jurisdiction . . . Menzies is not required to terminate employees who are
unacceptable to Alaska . . . The NMB has found jurisdiction based on the authority
to remove employees where an employee has been terminated following a carrier
request that he or she be removed from the contract. . . . That is not the case here;
Menzies retains and exercises the option to utilize employees elsewhere at SeaTac.
While the Board has in the past found jurisdiction over Menzies’ operations at other
locations, jurisdiction decisions are presented to the Board on a case-by-case basis
at different locations where companies contract with direct carriers who exercise
various degrees of control . . .
The extent to which the carrier controls the manner in which Menzies conducts its
business is not greater than found in a typical subcontractor relationship. As in the
Board’s recent Airways Cleaners decisions, Alaska does not exercise “meaningful
control over personnel decision.” Alaska does not hire, fire or routinely discipline
Menzies employees. Contract provisions even more explicitly leave these decisions
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to Menzies. Menzies has its own discipline policy and, although Alaska managers
can report misconduct or failure to follow procedures, Menzies has the authority to
discipline as its managers see fit.
In Bags, Inc. 40 NMB 165, 169 (2013), discussed in Menzies, supra, the NMB
declined to assert jurisdiction over a contractor that provided skycap, wheelchair and
unaccompanied minor services to airlines.
Contentions of the Parties
The General Counsel maintains that foregoing cases represent a “shift” in the
assertion of NMB jurisdiction in recent years, which ceded to the Board jurisdiction over
airline contractors. In further support of this contention, the General Counsel cites to
Primeflight Aviation Services, Inc., Case 12-RC-113687 (2015) WL 3814049, slip op. at 1
fn. 1 (2015), where the Board denied the respondent’s Request for Review of the Regional
Director’s determination that the Board had jurisdiction. In particular, Member Johnson
acknowledged that “these cases represent a shift by the NMB from earlier opinions in
which it had asserted jurisdiction on similar grounds, and this view is currently extant NMB
law.”
Having recognized that the NMB will decline jurisdiction over airline contractors, the
Board now affirmatively takes the position that it will assert jurisdiction in such cases,
absent evidence that an airline exercises greater control over the contractor than is present
in a “typical subcontractor relationship.” Allied Aviation Service Co., 362 NLRB No. 173, slip
op. at 2 (2015). There, the Board asserted jurisdiction over contractor that provided fueling
services to airlines, and granted summary judgment where the contractor refused to
recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act.
PrimeFlight maintains that it is outside the jurisdiction of the National Labor
Relations Board because it is a “derivative carrier” within the meaning of the Railway Labor
Act. Specifically, Respondent maintains that PrimeFlight’s operations satisfy the “function”
aspect of the test, because PrimeFlight’s employees perform work which has been
traditionally performed by carrier employees. An examination of various NMB opinions
shows that the services performed at terminal 5 fall within the scope of those services
recognized as traditional airline craft and class functions.
Respondent further argues that PrimeFlight’s JFK operations satisfy the “control”
aspect of the derivative carrier test under the RLA. General Counsel and the Union dispute
the foregoing contentions.
Respondent contends that JetBlue has involvement in the hiring, firing, and
disciplinary decisions of PrimeFlight employees. In support of the foregoing contentions,
Respondent relies upon section 7.6 of the GTA which provides as follows:
Business Partner [PrimeFlight] shall enforce (and, if applicable, cause its
subcontractors to enforce) strict discipline and good order among its employees, to
maintain and observe sound and harmonious labor practices, and to take all
reasonble steps to avoid labor disputes (including but not limited to jurisdictional
and other site specific labor disputes) and work stoppages. If, at any time any of the
workers performing the Services shall be unable to work in harmony or shall
interfere with any labor employed by JetBlue or any tenant of the area in which the
Services are performed, Business Partner shall take reasonable steps as shall be
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necessary to resolve such dispute including but not limited to the removal and
replacement of employees or agents.
In furtherance of the above noted contentions, Respondent further relies upon the
testimony of Division Vice President Matthew Barry as follows:
Q: [by respondent’s counsel]: With respect to JFK and JetBlue. If they ask you to
remove an employee, what would your response be?
A: My understanding is, per our general terms agreement, contract with them, if
they were to request it then I would have to abide.
Barry essentially reiterated such claims during his cross-examination and further
stated that it was section 7.6 of the GTA, set forth above, that establishes such a
requirement.4
Respondent further points to certain other obligations set forth in the GTA in support
of its contention that PrimeFlight operates its business at JFK under the close control of
JetBlue. In particular, Respondent notes that PrimeFlight’s employees work entirely within
a physical space controlled by JetBlue when performing their duties to support JetBlue’s
airline operations; PrimeFlight employees are trained on JetBlue training modules
regarding the airline’s policies and procedures including “Train the Trainer” training, initial
curriculum training and backup processes should malfunctions occur. Additionally, JetBlue
provides equipment used at JFK including wheelchairs, baggage carts, tablets, radios,
computers, and telephones as well as internet service and other software or technology
platforms as necessary. Skycap employees use JetBlue’s computer system to check in
customers, issue seat assignments, issue boarding passes, and process baggage fees.
In addition, JetBlue reserves the right to inspect and audit PrimeFlight’s books,
records, and manuals at “all reasonable times,” in order for JetBlue to ensure compliance
with the procedures and requirements of the GTA and the right to access records that it
requires PrimeFlight to maintain such as electronic tracking of wheelchairs, tracking of
customer wait times and complaints, the number of hours worked by PrimeFlight
employees and certification of employee quarterly training.
PrimeFlight is also required to provide JetBlue with a daily shift report as well as
daily, weekly, and monthly accountings of data pertaining to wheelchair services.
PrimeFlight is required to maintain staffing levels to JetBlue’s satisfaction. In particular,
Article 9.1 of the GTA provides as follows:
The parties acknowledge that JetBlue’s flight activity may increase or decrease over
the duration of the Term, and that it will be the responsibility of PrimeFlight to
maintain appropriate levels of personnel and equipment to perform the Services in
strict accordance with this Agreement, regardless of any such activity.
JetBlue’s SOW with PrimeFlight imposes requirements that employees be
professionally dressed and neatly groomed. There are also rules regarding the handling of
financial transactions and the issuance of documentation to passengers. There is a

4 At the time of the hearing, JetBlue had not made such a demand. Respondent notes that it
had only been approximately 5 months since PrimeFlight commenced its operations.
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prohibition against using personal cell phones or sleeping while on duty.
JetBlue also reviewed and approved the uniforms PrimeFlight issued to its
employees.
General Counsel, endorsed by the Union, does not contest that Respondent meets
the first prong of the “derivative carrier test,” but disputes that the evidence shows that
JetBlue exercises substantial control over PrimeFlight in this instance.
At the hearing, Respondent stipulated that it has exclusive control over the hiring of
its employees at JFK. With regard to promotions and demotions, Respondent stipulated
that JetBlue does not provide recommendations with regard to PrimeFlight employees.
General Counsel argues that the issues of employee discipline and termination are
controlled by PrimeFlight’s employee handbook, rather than any contractual provision with
JetBlue, either through the GTA or the SOW. These rules include drug and alcohol abuse,
sexual and other prohibited harassment, personal appearance, and workplace etiquette.
PrimeFlight generally follows a progressive discipline policy in which counseling is followed
by a written warning, then suspension and discharge for a fourth offense. In this regard,
General Counsel and the Union argue that there is nothing in the GTA which requires
PrimeFlight to terminate an employee, or gives JetBlue an unqualified right to make such a
demand. In this regard, two provisions of the GTA are relied upon: Section 7.6 which has
been set forth above, and a provision of the SOW which provides that JetBlue can demand
the removal of a skycap found to be “collecting revenue outside of the system.”
General Counsel and the Union further contend that the record shows that
PrimeFlight is exclusively responsible for the supervision and management of its
employees, relying in significant part on Barry’s concession in this regard. In addition, the
record demonstrates that PrimeFlight maintains a full supervisory structure. Moreover,
section 9.1 of the GTA provides as follows:
Except as expressly set forth herein, Business Partner shall, at its sole cost and
expense, furnish all labor, supervision, equipment, facilities, materials and supplies,
and other requisites necessary for the proper performance of Services at each
Airport.
[The remainder of section 9.1 has been set forth above].
It is argued that while JetBlue may provide feedback should it deem the level of
staffing to be poor, PrimeFlight is responsible for assigning employees in the manner
described above. In this regard, it assigns employees to their shifts and may change their
schedules (which it, admittedly, has done).
General Counsel contends that Respondent conducts its business in the manner of
a typical contractor. In support of these contentions, General Counsel relies upon Barry’s
testimony that JetBlue compensates Respondent according to a per-flight flat rate and is
responsible for all of its expenses. In addition, Barry testified that PrimeFlight supplies a
complement of wheelchairs, tablets used by wheelchair agents and supervisors, computers
and a software system known as Centrak.
PrimeFlight is largely responsible for the training of its employees. Section 10.9 of
the GTA provides that:
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Business Partner shall provide its employees, agents, representatives and
subcontractors with all necessary initial and recurrent training, including
familiarization with JetBlue Policies.
According to employees who testified at the hearing, it was PrimeFlight, not JetBlue
that trained them. PrimeFlight’s classroom training consists of several components. As
Barry testified, PrimeFlight directs two: the “internal company training module” and
“PrimeFlight technology application.” The third module is “JetBlue policies, procedures and
training,” for which JetBlue provides training for PrimeFlight trainers, but does not directly
train employees.
Both the General Counsel and the Union additionally point to the fact that
PrimeFlight’s employees are held out to the public as employees of PrimeFlight, not
JetBlue. Employees wear uniforms bearing the PrimeFlight, not JetBlue, logo. Similarly,
their identification badges demonstrate that they are employees of PrimeFlight.
Respondent relies upon the fact that the uniforms were reviewed by JetBlue, but they were
accepted with no changes.
Analysis and Conclusions
In the instant case, I find that the record does not support the Respondent’s
argument that the employees in question are indirectly controlled or under common control
with a carrier or carriers to an extent sufficient to invoke the jurisdiction of the NMB under
the Railway Labor Act.
As the National Labor Relations Board has found:
In recent cases assessing whether it has jurisdiction over employers who supply
services to an airline carrier or carriers but are not themselves engaged in the
transportation of freight or passengers, the NMB has focusused on whether the
carrier or carriers exercise “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
jursisdiction”); 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 is not found such meaningful control, the NMB has
emphasized in particular the absence of control over hiring, firing, and/or discipline)
See Menzies Aviation, 42 NMB at 7; Airway Cleaners, 41 NMB at 269 and Bags,
Inc., 40 NMB at 170.
Allied Aviation Service Co. of New Jersey, 362 NLRB No. 173, slip op at 1 (2015).
Here, I find the facts and extrapolated arguments advanced by the Respondent to
be unavailing. These include, in particular, the fact that PrimeFlight uses space provided by
JetBlue in terminal 5; the fact that PrimeFlight designs employee schedules and hours
based upon the flight schedule provided by Jetblue; the tracking of the workforce to ensure
sufficient staffing; the fact that the SOW imposes standards of conduct to which PrimeFlight
employees must adhere and the right to insect PrimeFlight’s books and records and to
request other records as necessary. See, e.g., Bags, supra at 166–168.
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With respect to discipline and termination, PrimeFlight’s agreement with JetBlue
does not provide the carrier with a unilateral right of removal, and there is no evidence to
support any contention that this is the case. Rather, the relevant documents provide that if
a skycap is found to be collecting revenue outside the system, JetBlue will request that the
employee be removed from baggage checking services. However, there is no requirement
that an employee be terminated; rather it appears that PrimeFlight retains the discretion to
reassign the employee in question, as the GTA only provides for removal from baggage
checking. Similarly, with regard to that provision which calls for PrimeFlight to discipline
employees up to and including termination, if the employee causes work stoppages or
interferes with JetBlue’s ability to provide services, the ultimate disciplinary decision is left
to the discretion of Respondent. With respect to hiring, the record shows that PrimeFlight
has control over personnel decisions including the interviewing and decision as to whether
to hire employees. PrimeFlight sets the rate of pay, benefits, disciplinary procedures and
other work requirements for its employees. The record evidence regarding the nature and
extent of PrimeFlight’s interactions with JetBlue supervisory and managerial personnel fails
to establish that JetBlue has authority to direct the work of PrimeFlight employees. While
JetBlue provides PrimeFlight with certain equipment for employee use, the extent to which
it does so is not determinative. See Bags, supra at 167. The training requirements are
largely determined by PrimeFlight, and the fact that they may include certain aspects of the
JetBlue curriculum, safety concerns, new programs and special events is similarly
nondeterminative. Finally, the record is clear that PrimeFlight employees are intended to
be, and are, held out to the public to be employees of that company and not of JetBlue.
Here, based upon the record as set forth above and considering the respective
arguments of the parties in that context, I conclude that the elements of control are no
greater that those found in a typical subcontractor relationship. PrimeFlight is required to
furnish, at its own cost, labor, supervision, equipment, materials and supplies. It is
responsible for the hiring, training and discipline of its employees. The extent to which
JetBlue exercises control over PrimeFlight operations consists of generalized, broad
constraints which relate to standards of performance. In parallel factual situations applying
to airline contractors similar to Respondent, the NMB has repeatedly declined jurisdiction.
See Menzies Aviation, Airway Cleaners, Bags, Inc., and AirServ. Corp., all discussed
above. Moreover as further noted above, given similar factual circumstances, the Board
has asserted jurisdiction over this Respondent in another location, acknowledging the
“shift” in the NMB’s position on such matters in recent years.5
Accordingly, I find that the National Labor Relations Board properly has
jurisdiction over the PrimeFlight operations at terminal 5 at JFK.
The Alleged Unfair Labor Practices
The Successorship Issue
In the weeks leading up to the May 9, 2016 transition date, PrimeFlight hired its
work force, with the intention of ensuring no gap in services once it assumed operations.
To that end, PrimeFlight asked Air Serv to provide it with lists of active employees. In

5 In this regard, I find the earlier decision in PrimeFlight Aviation Services, 353 NLRB 467
(2008), discussed above ,not to be controlling here due to the different factual contexts and the
above-mentioned “shift” in jurisdictional analysis.
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addition, Air Serv coordinated and communicated with PrimeFlight regarding those
employees who would be offered the opportunity to apply for employment with the new
contractor.
Between April 5 and May 7, 2016, Respondent hired 367 employees that it would
employ on its first day of operation, May 9. There is no evidence that JetBlue had any input
into these hiring decisions. Between May 7 and June 6, no additional employees were
hired by PrimeFlight. Of these initial hires, as the General Counsel has conceded, 16 are
excluded from the unit as they have been deemed statutory supervisors. Thus, throughout
the entire first month of operations, the alleged bargaining unit consisted of 351 employees
in the non-supervisory job categories: baggage handling, skycap services, line queue and
wheelchair services. Of this number, 183 had previously worked for Air Serv.6
During the first month of operations, until June 6, the asserted bargaining unit
consisted of 351 employees in the four job categories described above: baggage handling,
skycap services, line queue and wheelchair services. Of this number of employees, 183
had previously worked for Air Serv.
Hiring resumed on June 6, but up until that time, as set forth above, over 50 percent
of Air Serv’s former statutory employees about whom there is no dispute had been
employed by PrimeFlight. During this interim period, no additional job classifcations were
added, and there is no evidence that any were subsequently introduced.
The record also establishes that since beginning operations on May 9, Respondent
has, to some extent, utilized its work force interchangeably among job classifications. For
example, baggage employee Denzyl Williams testified that he has performed wheelchair
duties upon request, and has observed wheelchair employees performing baggage work.
Similarly, wheelchair employee Omar Duhaney testified that, in addition to his wheelchair
duties, he has also performed baggage duties on several occasions on a weekly basis. He
has also observed baggage employees and line queue employees performing wheelchair
duties.
The Union’s Demand for Recognition, Bargaining and Information
On May 23, 2016, counsel for the Union sent the following letter to the general
counsel of Respondent stating, in relevant part:
Primeflight Aviation Services is the successor employer for two bargaining units
represented by SEIU Local 32BJ. As such, PrimeFlight is legally obligated to
recognize the union as the excjusive collective bargaining agent, bargain with us
concerning terms and conditions of employment and to provide information
necessary and relevant to collective bargaining. The two units are:

6 These statistics are culled from various exhibits entered into evidence during the hearing
including: (1) the list provided by Respondent to the General Counsel of employees that it had hired
who had formerly worked for Air Serv, entered by stipulation of the parties; (2) the lists of new hires
as of May 9 and June 16, 2016, introduced by Respondent; (3) payroll records provided by
Respondent to the General Counsel, as stipulated into evidence and (4) a different hire list provided
by Respondent to the General Counsel during the investigative stage of the proceeding. Having
reviewed these exhibits, I find that they support the numerical calculations of the General Counsel in
this regard.
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PrimeFlight’s emplyees at JFK Aiport, the majority of whom were formerly
Air Serv employees represented by Local 32BJ. These are employees
working at Terminal 5 on the Jet Blue account, providng baggage handling,
skycap and check point services. As we understand it, the appropriate
bargaining unit also includes employees providing wheelchair assistance.
We request recognition for a unit of all full-time and regular part-time
employees at Terminal 5 on the Jet Blue account, excluding supervisors
office clericals, and guards as defined in the NLRA.
[The Union’s second demand, for a unit of employees at Newark Liberty
Airport is excluded here, as this unit is not at issue in these proceedings.]
Please provide dates on which you are available to bargain.
Please provide us with the following information necessary and relevant to
collective bargaining:
A roster of all bargaining unit employees, including their names, addresses,
telephone numbers, e-mail addresses, wages, shifts, classifications and start dates.
A copy of any employee handbook applicable to any bargaining unit employee.
A copy of the summary plan description for any health insurance or other employee
benefit plan applicable to any bargaining unit employee.
Please provide this information in one week from receipt of this letter.
Finally, please be aware that prior to any change in the employees’ terms and
conditions of employment, you are required to provide notice and an opportunity to
bargain to the Union. Failure to do so would be a violation of the National Labor
Relations Act.
By letter dated May 25, 2016, Respondent’s Senior Vice President of Human
Resources William Stejskal III replied to the Union as follows:
In your letter to General Counsel, PrimeFlight Aviation Services dated May 23,
2016, it asserted tht Local 32BJ represents certain AirServ employees at JFK
Airport and Newark Liberty Airport who are now employed by PrimeFlight. Please
promptly provide me evidence that establishes the basis for this assertion, including
the Board Certification(s) and Collective Bargaining Agreements(s).
On June 2, 2016 the Union replied as follows:
In reply to your letter of May 25, please find enclosed a copy of the Recognition
Agreement between Air Serv Corportion and SEIU Local 32BJ, dated March 26,
2015, for a bargaining unit that encompassed the employees at issue at both JFK
and Newark Airports.
By letter dated June 10, 2016, Stejskal requested that the Union provide any
additional agreement between the parties, “that preceded the Recognition Agreement and
stipulated the card check procedure referenced in the Recognition Agreement,” should one
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exist. Additionally, Stejskal asked Union counsel whether a collective bargaining agreement
exists for any of the employees at issue, and explained that its requests are relevant to the
Union’s May 23 demand.
By letter dated June 15, 2016, the Union replied by stating, “We have supplied you
with sufficient documentation to demonstrate that we represent the employees at JFK and
Newark airport in which the former Air Serv employees constitute a majority of
Respondent’s nonsupervisory work force. After you acknowledge that the Union is the
exclusive bargaining agent, we will be happy to provide any additional information which is
necessary and relevant to collective bargaining. Please provide the authority that supports
your claim that a collective-bargaining agreement or documents preceding the rcognition
agreement are necessary to determine our representative status.”
Subsequent to this exchange of correspondence, the record reflects no further
communication between the parties.
Subsequent Hiring of Wheelchair Staff
Three days after the Union’s May 23 demand for recognition, Respondent
commenced hiring additional employees. The majority of the new hires were wheelchair
service employees. By June 16, Respondent had hired 441 employees in total. Whereas
more than half of its employees had been former Air Serv employees when the Union
demanded recognition on May 23, as of June 16, fewer than half of Respondent’s
employees were former Air Serv employees. By the time Respondent had concluded hiring,
on July 6, it had hired 507 employees. As a result of this hiring, former Air Serv employees
comprised approximately 39 percent of the total number of employees.
PrimeFlight has contended that upon assuming operations on May 9, 2016, it
determined that it needed 500 employees. In support of these contentions, Respondent
relies primarily upon the testimony of Barry who stated that PrimeFlight came to
understand that its initial staffing level was insufficient to “manage the volume of requests
that [PrimeFlight] would be receiving in particular in the wheelchair operation.”
Barry further asserted that the staffing problem was compounded by the fact that
JetBlue had failed to properly communicate the work that PrimeFlight would be responsible
for handling, including those who work with TSA in moving baggage being scanned. Thus,
PrimeFlight estimated a need to hire an additional 250 employees, and targeted about 500
employees to be hired in two phases: the first in early June and the second in late June
and early July.
A memorandum dated May 12, 2016, from a JetBlue representative to PrimeFlight
managers states as follows:
261 Badges sound promising7

7 According to an earlier email sent fron PrimeFlight representative Debra Gray to JetBlue
representative Christopher Kemmerer, the 261 badges referred to the clearing of identification
badges. Gray also stated in this email that PrimeFlight agents were “working significant amounts of
overtime to try and support the operation. We have formulated teams of leads and supervisors to
ensure as much gate coverage as possible while concentrating for preplanning for heavy flights,
staging wheelchairs for large groups and watching the International flight arrivals.”
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This evening . . . we had 6 JetBlue Customer Service supervisors plus a duty
manager pushing wheelchairs through our Custmer hall
For leadership’s awareness, we would like to see a shift breakdown of staffing by
each position at the beginning of the AM and PM shift starting tomorrow through the
weekend.
We are prepared to supplement you staffing at certain positions so that you can
throw that manpower into the wheelchair operation.
On May 18, 2016, Vice President Barry sent the following email to various
PrimeFlight managers:
Need to divide task of priority within team.
Next 10 days focus
1. Safety (who’s giving daily safety briefings)
2. Schdules
3. Badging status of every employee
4. Payroll
5. Tip-sheets
6. Recruiting/training heavily (authorized to ad another admin position full time
if needed)
If we focus on doing these 6 things well in the next 10 days, we will see positive
results.
Respondent relies upon Barry’s explanatory testimony that he sent the email
because of PrimeFlight’s “concerns about not having enough staff to support the
operation.”
Analysis of the Successorship Issue
In NLRB v. Burns International Security Services, 406 U.S. 272, 287 (1972), the
Supreme Court held that if a new employer “voluntarily [takes] over a bargaining unit” of its
predecessor, then the successor employer is under a duty to bargain that represented the
predecessor’s employees.” Under Burns, the obligation to recognize and bargain with an
incumbent union exists when there is a (i) “substantial continuity” between the predecessor
and successor enterprises, and (ii) when a majority of the employees of the successor, in
an appropriate unit, had been formerly employed by the predecessor. Burns, 406 U.S. at
280–291. Subsequently, the Court further held that the determination of successorship is
“primarily factual in nature and is based upon the totality of the of the circumstances in a
given situation.” Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 43 (1987).
The Supreme Court has made it clear that successorship status under and its
progeny is predicated upon an employer’s choice to hire more than 50 percent of its work
force from its predessor’s work force. See Fall River, supra at 41 (explaining that the
successorship doctrine is based upon a “conscious decision” of the new employer “to
maintain generally the same business and to hire a majority of its employees from the
predecessor” and “[t]hat this makes sense when one considers that the employer intends to
take advantage of the trained work force of its predecessor”). In the instant case, I
conclude that PrimeFlight is a Burns successor because the record demonstrates that (i)
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PrimeFlight substantially continued Air Serv’s operations in terminal 5 and (ii) as of May 23,
2016, the date the Union demanded recognition, a majority of the employees that
PrimeFlight hired were fomer employees of Air Serv in an appropriate bargaining unit.
Substantial Continuity
The “substantial continuity” inquiry involves the assessment of several factors:
whether the business of both employers is essentially the same; whether the
employees of the new company are doing the same jobs in the same working
conditions under the same supervisors; and whether the new entity has the same
production process, produces the same products, and basically has the same body
of customers.
Fall River, 482 U.S. at 43.
Here, the record evidence shows that the retained employees’ perspective was that
their jobs remained essentially unaltered. PrimeFlight operated Air Serv’s operations in
baggage handling, skycap and checkpoint services in basically unchanged form.
The transition between the two companies was overnight, with Air Serv concluding
its operations on May 8 and PrimeFlight commencing opertions without interruption on May
9. As of May 9, the FrimeFlight employees in baggage handling, skycap, and checkpoint
services were over 90 percent the same as those previously employed in these same
classifications with Air Serv.
In this regard, I note that in its answer to the complaint, Respondent has admitted
that since about May 9, 2016, Respondent has continued to operate the portion of Air
Serv’s business at JFK Airport in basically unchanged form.
I find that PrimeFlight’s changes, such as altering uniforms and identification
materials are minor. More telling is the fact that employees were performing the same work
that they did for Air Serv, in the same location, with substantially the same supervision and
with no interruption in service. Although PrimeFlight added another classification of
customer service, wheelchair assistance, formerly provided by PAX Assist, that does not
materially change the instant analysis. The employees’ perceptions of their jobs (as
described above) and their jobs themselves (as admitted) have not changed. The record
demonstrates that employees viewed their jobs as being essentially unaltered, and that the
new employer, PrimeFlight, intended for it to be that way, as well.
Based upon the foregoing, I find that there has been substantial continuity of
operations to meet the test for successorship here.
Majority Status
Once the substantial continuity test has been satisfied, a successor’s bargaining
obligation requires that a majority of the employees of the successor, in an appropriate unit,
were formerly employed by the predecessor. Here, the record shows that of May 23, 2016,
when SEIU made its demand for recognition, over 50 percent of PrimeFlight’s employees
had previously been employed by Air Serv and were represented by SEIU Local 32BJ.
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Respondent’s defense is that on May 23 it had not yet finished hiring, and planned
to do so in the near future. Relying on Fall River, supra at 47, Respondent argues that its
bargaining obliagtion is triggered only if a “substantial and representative complement”
existed at the time.
The Board and the courts have acknowledged that in determining whether a
representative complement exists, there may be a startup period during which a new
employer may gradually build its operations and hire employees. In determining the time
when a “representative complement” exists and thus a bargaining obligation will attach, the
Board considers various factors: whether the employer has substantially filed the unit job
classifications designed for the operation, whether the operation was in substantially
normal production, the size of the complement on the date of normal production, the time
expected to elapse before a substantially larger complement would be at work and the
relative certainty of the expected expansion. Fall River, supra at 49.
As may be obvious, this analyisis turns on the facts of the case. In Fall River, the
Court found the employer to be a Burns successor because it “had hired employees in
virually all job classifications, and hired at least fifty percent of those it would untimately
employ in the majority of those classifications, and it employed a majority of the employees
it would eventually employ when it reached full complement.” Id at 52. Here, as of the date
that the Union demanded recogninition (May 23), PrimeFlight haad hired employees into all
four job classifications; it had hired at least 50 percent in a majority of the classsifications,
in fact hiring over 90 percent of the employees in three out of four job classifications.
Respondent’s argument, supported primarily through the testimony of Barry, that
upon commencing operations PrimeFlight had determined a need to hire additional
employees in total of an excess of 500 employees is unsupported in the factual record.
Barry’s testimony is conclusionary and vague. There is no document in evidence or
evidence of other communications among PrimeFlight principals to show that this was an
eventual goal undertaken at the outset of operations, The hiring of additional employees
did not commence until after the Union’s initial demand for recognitioin and bargaining, and
there is no convincing evidence that it contemplated doing so prior to that date. In this
regard I note that while Barry’s May 18 memorandum to employees enumerates a list of
priorities, there is only one item which refers to “recruiting/training” and makes specific
reference only to adding another administrative position if needed. Similarly, the email
issued by Gray referred to employee overtime and formulating tems of leads and
supervisors; but fails to address the issue of hiring additional employees. Such evidence is
insufficient to show that Respondent expected to and had concrete plans to hire significant
numbers of unit employees prior to, at the time or shortly after it assumed the contract at
terminal 5.
The record demonstrates that Respondent was in full operation as of May 9. From
the initial date of operation, PrimeFlight contracted with JetBlue to provide four types of
services in terminal Five for JetBlue, and did so for two weeks until the Union’s demand for
recognition, with no gap in operation and no substantive evidence that it intended to
significantly expand its operation in any manner.
Appropriate Unit
Majority status is found as of the date upon which a union demands recognition, as
long as a representative complement exists. Once majority status is found, a successor’s
bargaining obligation requires that the unit remain appropriate for collective bargaining
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under the successor’s operations. In this regard, the Board has long found a single-facility
unit to be presumptively appropriate and the party opposing it has a heavy burden to rebut
such a presumtion. See e.g. Trane, 339 NLRB 866 (2003); Budget Rent A Car Systems,
337 NLRB 84 (2002). Moreover, as noted above, at the hearing employees testified about
interchange among job classifications. In analyzing a successor’s duty to bargain, the
Board has found units which include previously unrepresented employees to be
appropriate, as long as a majority of the entire unit is comprised of predecessor employees.
Good N’ Fresh Foods, 287 NLRB 1231, 1236–1237 (1988)(finding that successor was
obliged to bargain with union in unit comprised of formerly unrepresented maintenance
employees and represented production employees). There is no evidence rebutting the
presumption that a single “wall-to-wall” unit would be appropriate here.
Accordingly, I conclude that as of the date of the Union’s demand for recognition,
May 23, 2016, Respondent employed a substantial and representative complement of its
workforce in an appropriate bargaining unit, and Respondent failed to adduce sufficient
evidence to rebut that presumption.
Thus, PrimeFlight was thereby obliged to meet and bargain with the Union as the
exclusive collective-bargaining representative of its employees.
The Refusal to Bargain, Provide Information and Unilateral Changes in Terms and
Conditions of Employment
Refusal to Provide Information
Under Section 8(a)(5) of the Act, an employer is required to provide a union with
relevant information necessary to perform its duties as collective-bargaining representative.
NLRB v. Acme Industries Co., 385 U.S. 432, 435 (1967); NLRB v. Truitt Mfg. Co. 351 U.S.
149, 152 (1956). When a union’s request for information pertains to employees within the
bargaining unit, such information is presumptively relevant and the employer is obliged to
provide it. Disneyland Park, 350 NLRB 1256, 1257 (2007).
In the instant case, the requests made by the Union in its May 23 letter pertain
directly to bargaining unit employees: (1) roster of bargaining unit employees; (2) employee
handbook(s) applicable to any bargaining unit employee and (3) summary plan
description(s) for any health insurance of other benefit plan applicable to any bargaining
unit employee. These requests are therefore presumptively relevant. Respondent does not
dispute that it failed to provide such information, and there is no evidence that it did so in a
timely fashion, or at all. Thus, inasmuch as Respondent had a bargaining obligation with
the Union under Burns and its progeny, Respondent was obliged to provide such
information and its failure to do so is a violation of Section 8(a)(5) and (1) of the Act.
Unilateral Changes
Section 8(a)(5) further prohibits an employer from unilaterally changing, without
providing to a union notice and an opportunity to bargain, mandatory subjects of
bargaining. NLRB v. Katz, 369 NLRB 736, 747 (1962). A change to employee paid break
time is a mandatory subject because it involves “rates of pay, wages, hours of employment,
or other conditions of employment.” See, e.g., Litton Systems, 300 NLRB 324 (1990)
(employer violated Section 8(a)(5) by eliminating extra paid half hour for lunch the day prior
to Christmas); Xidex Corp., 297 NLRB 110 (1989)(employer violated Section 8(a)(5) by
replacing 30 minute unpaid break with 15 minute break). As it has been shown that
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Respondent was a successor under Burns and its progeny beginning as of May 23,
Respondent was under an obligation to provide notice and an opportunity to bargain over
changes to employee paid break time.
Respondent has admitted that since August 26, 2016, it has deducted pay from
employee paychecks for unpaid break time, and the record establishes that it did so without
prior notice to the Union or affording the Union an opportunity to bargain with respect to this
conduct and the effects of such unilateral changes.8 Inasmuch as Respondent, as a Burns
successor, was not privileged to implement such unilateral changes and by doing so,
Respondent violated Section 8(a)(5) and (1) of the Act.
As noted above, Section 8(a)(5) of the Act prohibits an employer from changing
mandatory subjects of bargaining without notice and bargaining. Board law has made clear
that employee schedules and workhours are mandatory subjects of bargaining with may
not be unilaterally changed. Katz, supra at 747; Palm Beach Metro Transportation, LLC,
357 NLRB 180 (2011)(reduction of workhours in response to fluctuations in available work);
Illiana Transit Warehouse Corp., 323 NLRB 111 (reduction of hours); Dickerson-Chapman,
Inc., 313 NLRB 907 (1994)(same). The “particular hours of the day and the particular days
of the week during which employees shall be required to work are well within the realms of
wages, hours and other terms and conditions of employment’ about which employers and
unions must bargain.” Milwrights, Conveyors and Machinery Erectors Local No. 1301, 321
NLRB 30, 31 (1996).
Here, Respondent has admitted that since about September 12, 2016, it has made
changes to employee work schedules which included changing scheduled work days and
reducing workhours. Respondent has also admitted that it made such changes with prior
notice to the Union and without affording the Union the opportunity to bargain with respect
to this conduct and its effects. Accordingly, based upon my conclusion that Respondent is
a Burns successor, I find that by doing so, Respondent has violated Section 8(a)(5) and (1)
of the Act.
The Threat of Discharge
Employee Omar Duhaney testified that in June, admitted supervisor and agent
Erick Brazao-Martinez told Duhaney and other employees (as Duhaney recounted), “Don’t
join the Union. We’ve only been with PrimeFlight for a couple of months. Be smart guys. If
you join the Union you will get fired.” No witness was presented to rebut this testimony, and
based upon this factor, coupled with the demeanor of the witness and the clear and
unambiguous nature of his testimony, I credit it.
Threatening employees with discharge because of their union or concerted,
protected conduct is a classic violation of Section 8(a)(1) of the Act. Pressroom Cleaners,
361 NLRB No. 57 (2014) (supervisor’s statement that employees would be fired if they
continued to talk to a union representative was a “classic and blatant” violation of Section
8(a)(1)); See also Pioneer Hotel & Gambling Hall, Inc., 276 NLRB 694, 698 (1985).

8 There is unrebutted testimony to the effect that employees had previously been asked to sign
a form acknowledging that 30 minutes per day will be deducted from their pay to account for break
time. This had not previously been done and no policy to such effect had previously been enforced.
See Flambeau Airmold Corp., 334 NLRB 165 (2001) (enforcement of previously unenforced rule
constituted unilateral change).
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Based upon the foregoing, I find that by threatening employees with discharge
should they join the Union, Respondent, by its admitted supervisor and agent, violated
Section 8(a)(1) of the Act.
Conclusions of Law
1. PrimeFlight Aviation Services, Inc. (PrimeFlight, Employer or Respondent) is an employer
engaged in commerce within the meaning of Section 2(6) and 2(7) of the Act.
2. Service Employees International Union, Local 32BJ (Union) is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following unit constitutes an appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All full-time and regular part-time employees employed by Respondent at JFK Airport
excluding confidential employees, office clericals, guards and supervisors as defined
by the Act.
4. Since May 23, 2016, and at all times material thereafter the Union has been, and is now, the
exclusive collective bargaining of Respondent’s employees in the above-described unit
within the meaning of Section 9(b) of the Act.
5. PrimeFlight has engaged in conduct in violation of Section 8(a)(5)and (1) of the Act by
refusing to recognize and bargain with the Union as the exclusive collective-bargaining
representative of its employees in the unit.
6. By refusing to provide the following information to the Union on and after May 23, 2016,
Respondent has engaged in conduct in violation of Section 8(a)(5) and (1) of the Act:
A roster of all bargaining unit employees, including their names, addresses,
telephone numbers, e-mail addresses, wages, shifts, classifications and start dates;
A copy of any employee handbook applicable to any bargaining unit employee;
A copy of the summary plan description for any health insurance or other employee
benefit plan applicable to any bargaining unit employee.
7. By making the following changes in terms and conditions of employment without affording
the Union notice and an opportunity to bargain over such changes, Respondent has
engaged in conduct in violation of Section 8(a)(5)and (1) of the Act:
Since about August 26, 2016, deducting pay from employee’s paychecks to account
for unpaid break time;
Since about September 12, 2016, changing employee work schedules including work
days and reducing hours;
8. In or about June 2016, Respondent by supervisor and agent Eric Brazao, violated Section
8(a)(1) of the Act by threatening employees with discharge because they engaged in
conduct in support of the Union.
9. The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7)
of the Act.
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REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I find that it
must be ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act. As I have found that Respondent has unlawfully failed and refused to recognize
and bargain with the Union, I shall recommend that Respondent recognize the Union as the
exclusive collective-bargaining representative of its employees in the above-described unit and,
upon request, meet and bargain in good faith concerning wages, hours, benefits and other terms
and conditions of employment, and if an agreement is reached reduce the agreement to a signed
written contract. Respondent also shall be ordered to provide to the Union the information requested
in its May 23, 2016 letter. Additionally, the Respondent shall, on request of the Union, rescind any
departure from terms and conditions of employment that existed before the Respondent’s takeover
of operations at JFK Airport and retroactively restore preexisting terms and conditions of
employment including work schedules and compensation for break time that would have been paid,
absent the Respondent’s unlawful conduct, until the Respondent negotiates in good faith with the
Union to agreement or to impasse. Backpay shall be computed as in Ogle Protection Service, 183
NLRB 602 (1970) enfd. 444 F.3d 502 (6th Cir. 1971), plus interest as prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended9
ORDER
The Respondent, PrimeFlight Aviation Services, Inc., Queens, New York, it officers, agents
succesors and assigns shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with the Union as the exclusive collective-
argaining representative of its employees in the following unit:
All full-time and regular part-time employees emplotyed by Respondent at JFK Airport
excluding confidential employees, office clericals, guards and supervisors as defined by the
Act.
(b) Refusing to provide the following information to the Union:
A roster of all bargaining unit employees, including their names, addresses, telephone
numbers, addresses, wages, shifts, classifications and start dates;a copy of any employee
handbook applicable to any bargaining unit employee; a copy of the summary plan
description for any health insurance or other employee benefit plan applicable to any
bargaining unit employee.
(c) Making changes in terms and conditions of employment without affording the Union notice
and an opportunity to bargain over such changes.
(d) Threatening employees with discharge because they engage in conduct in support of the
Union.

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
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(e) In any like or related manner interfering with, restraining or coercing its employees in the
exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) On request, meet and bargain with the Union as collective-bargaining representative of its
employees in the described appropriate bargaining unit concerning terms and conditions of
employment and, if agreement is reached, embody the agreement in a signed collective-
bargaining agreement.
(b) Provide the information to the Union requested in its May 23, 2016 letter.
(c) Upon request, rescind the unilateral changes made to employee terms and conditions since
May 23, 2016 and make whole employees for the effects of such changes as described in
the remedy portion of this decision.
(d) Preserve and, on request, make available to the Board or its agents for examination and
copying, all payroll records, social security payment records, timecards, personnel records
and reports and all other records necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at the Respondent’s facility at JFK Airport and at other appropriate facilities nationwide,
as discussed above, copies of the attached notice marked “Appendix.”10 Copies of the
notice, on forms provided by the Regional Director for Region 29, after being signed by by
the Respondent’s authorized representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in conspicuous places, including all
places where notices to employees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as by email, posting or intranet
or an internet site, and/or other electronic means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. If 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 current employees and former employees employed by the Respondent at any
time since March 23, 2016.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn
certification 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 March 9, 2017

Mindy E. Landow
Administrative Law Judge

10 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 National Labor Relations Board” shall read “Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
JD(NY)-05-17
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT fail and refuse to recognize and bargain with the Service Employees
International Union, Local 32BJ as the exclusive collective-bargaining representative of our
employees in the following unit:
All full-time and regular part-time employees employed by us at JFK Airport excluding
confidential employees, office clericals, guards and supervisors as defined by the Act.
WE WILL NOT refuse to provide information to the Union which is necessary and relevant to
their function as the collective-bargaining representative of unit employees.
WE WILL NOT make changes in terms and conditions of employment without affording the
Union notice and an opportunity to bargain over such changes
WE WILL NOT threaten employees with discharge because they engage in conduct in support
of the Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed to them by Section 7 of the Act.
WE WILL on request, meet and bargain with the Union as collective-bargaining representative
of its employees in the described appropriate bargaining unit concerning terms and conditions of
employment and, if agreement is reached, embody the agreement in a signed collective-
JD(NY)-05-17
bargaining agreement.
WE WILL provide to the Union information which is necessary and relevant to its function as
collective-bargaining representative of unit employees.
WE WILL, upon request, rescind the unilateral changes made to employee terms and conditions
since May 23, 2016 and make whole employees for the effects of such changes, with interest.
PRIMEFLIGHT AVIATION SERVICES, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how to
file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
Two MetroTech Center (North), 100 Myrtle Avenue, Suite 5100
Brooklyn, New York 11201-3838
Hours: 9 a.m. to 5:30 p.m.
718-330-7713.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/29-CA-177992 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.

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 718-765-6190.