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July 27 — Aircraft cabin cleaners at Oregon's Portland International Airport may vote on union representation in a secret-ballot election, a National Labor Relations Board regional director held ( Menzies Aviation (USA), Inc., 2016 BL 239544, NLRB Reg'l Dir., No. 19-RC-177701, 7/26/16 ).
The decision addressed a recurring dispute about whether ground operations provided to airlines by non-carriers fall within the jurisdiction of the NLRB or the National Mediation Board.
Menzies Aviation (USA) Inc. contended it is subject to the Railway Labor Act and exempt from NLRB jurisdiction. But Regional Director Ronald K. Hooks July 26 rejected the argument and directed an election to determine whether approximately 50 employees want to be represented by a Service Employees International Union local.
Menzies provides services at the Portland airport under a master agreement with Alaska Airlines, but Hooks concluded the airline did not exercise sufficient control to make Menzies subject to the RLA.
SEIU Local 49 filed a petition in June for an election, and the NLRB regional office held a hearing on the employer's contention that it was exempt from NLRB jurisdiction.
The National Labor Relations Act excludes from its definition of a covered employer any person subject to the Railway Labor Act.
The RLA, in turn, covers rail and air carriers as well as “any company which is directly or indirectly owned or controlled by or under common control with any carrier.”
Hooks wrote that the NLRB gives substantial deference to the National Mediation Board on jurisdictional determinations about employers that are not carriers. It may submit cases to the NMB for an opinion where jurisdiction under the NLRA is doubtful, he said.
However, the regional director said, the NLRB will not refer a case if it is similar to one in which the NMB has previously declined jurisdiction.
In 2003, the NMB found in John Menzies PLC, 30 N.M.B. 404 (2003), that Menzies operations at Portland International fell under its jurisdiction, but in 2014 the agency decided in Menzies Aviation, Inc., 42 N.M.B. 1 (2014), that similar operations at Seattle-Tacoma International Airport (Sea-Tac) were not covered by the RLA.
Citing Spartan Aviation Industries, Inc., 337 N.L.R.B. 708, 170 LRRM 1177 (2002), the NLRB regional director said the NMB conducts a two-part inquiry under the RLA, looking to determine whether an employer is performing work of a type traditionally performed by carriers' employees, and assessing whether the employer is “directly or indirectly owned or controlled by, or under common control with, a carrier or carriers.”
Hooks said Alaska Airlines closely monitors the performance of Menzies at the Portland airport, where Menzies is responsible under the Alaska Airlines contract for servicing Alaska's aircraft as well as planes operated by Horizon Airlines, an Alaska subsidiary, and SkyWest Airlines, an Alaska business partner.
Alaska Airlines establishes schedules for cleaners to conform to its flight schedules, but Menzies makes assignments to individuals using a seniority-based bidding system.
Menzies does its own hiring and firing, although the company's agreement commits it to remove from an assignment any worker Alaska deems unsatisfactory. Hooks noted that because Alaska Airlines is the only Menzies client at the Portland airport, removing an employee because of the airline's dissatisfaction would effectively require discharging the employee or finding an alternative assignment at another location.
Hooks said the NMB has found that an airline's power to demand removal of an employee was not sufficient to show that the NMB had jurisdiction over the employer, and he concluded that the evidence did not show Alaska Airlines exercises “meaningful control” over Menzies Aviation's personnel decisions, supervision or training.
Concluding the employer's operation is not subject to the Railway Labor Act or exempt from NLRB jurisdiction, Hooks directed an election to determine whether Menzies aircraft cleaners at Portland International want to be represented by Local 49.
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Text of the decision and direction of election is available at http://www.bloomberglaw.com/public/document/NLRB_Regional_Director_Decision_Menzies_Aviation_USA_Inc_2016_BL_.
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