Airport Workers’ Union Vote Tossed by Board Over Jurisdiction

The National Labor Relations Board wiped out a unionization vote by baggage handlers at Portland International Airport that it had approved during the Obama administration, ruling that it didn’t have authority over the handlers’ employer.

A divided NLRB said in a Nov. 14 decision that facility operations contractor ABM Onsite Services-West Inc. is engaged in interstate air transport, so it falls under the jurisdiction of the National Mediation Board. The NMB administers the Railway Labor Act, the federal law governing labor relations for rail companies and airlines.

The decision delivers a setback to unions aiming to organize baggage handlers, plane cleaners, runway assistants, and other workers whose airport jobs are contracted through third parties. The RLA makes it more difficult to form unions than does the National Labor Relations Act, which applies to most private sector workplaces, because of the different size of union elections under the two laws.

Union elections under the RLA are done on a “systemwide” basis, meaning that all of a company’s workers in a particular job type nationwide vote. In contrast, elections governed by the NLRA can feature much smaller bargaining units that are often easier to organize, such as employees working the same sort of job in a single location.

ABM’s attorney, Douglas Hall of Jones Day, told Bloomberg Law that the company is pleased with the board’s decision.

“That ruling, and the rationale used to reach it, are in accord with years of agency precedent, and support the RLA’s overarching goal of minimizing interruptions to interstate commerce,” Hall said in an email.

The union’s lawyer, William Haller, took issue with the ruling.

“This is an example of manipulating administrative law and using legal sophistry to deny working people the right to organize,” Haller, the International Association of Machinists’ associate general counsel, told Bloomberg Law.

The NLRB asserted jurisdiction over ABM’s operations at the Portland airport in 2015, certifying the election of a Machinists local to represent baggage handlers. But the U.S. Court of Appeals for the District of Columbia Circuit vacated that ruling two years later.

The circuit court said that the NLRB erred by relying on NMB cases about jurisdiction that had taken an unexplained departure from long-standing precedent during the Obama administration.

At the urging of the court, the NLRB asked the Trump NMB to weigh in on the case. The NMB issued an advisory opinion in February saying the RLA applied to ABM’s operations under its older precedent.

The NLRB’s three Republican members agreed with that advisory opinion in the board’s Nov. 14 decision. The board majority said the baggage handlers performed work typically done by air transport workers. The Portland Airlines Consortium, a company jointly established by airlines that operate out of the airport, exercises substantial control over the handlers under the NMB’s traditional case law, the board said.

Member Lauren McFerran, the board’s lone Democrat, dissented. The circuit court previously faulted the board for relying on NMB decisions that departed from its precedent without addressing that shift, McFerran said. But by agreeing with the advisory opinion, the board again relied on a ruling that doesn’t properly explain why the NMB chose one line of precedent rather than the other.

The case is ABM Onsite Services-West, 2018 BL 420298, N.L.R.B., 19-RC-144377, 19-CA-153164, Supplemental decision and order 11/14/18.