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By Chris Opfer
Swartha Tujare was fired from her job as a wheelchair attendant at Dulles International Airport outside Washington after she went out on strike to protest against low pay and poor working conditions. The National Labor Relations Board forced Huntleigh Corp. to rehire the 67-year-old Tujare some five months later, but she and her co-workers haven’t yet been able to join a union. That could get even more difficult if one obscure federal agency decides to get involved.
Airport contractors such as Huntleigh and ABM Onsite say labor beefs involving baggage handlers, plane cleaners, runway assistants, and other workers whose airport jobs are contracted through third parties should be treated like those involving pilots and flight attendants actually employed by airlines. If the National Mediation Board agrees, airport workers who want to unionize will have to do so in large nationwide groups, instead of smaller units doing the same job in the same airport or terminal.
“These are employees that voted to join a union to try to improve the terms and conditions of their jobs,” Machinists union lawyer Carla Siegel told Bloomberg Law of airline workers waiting for the NMB to decide what to do with at least four pending cases. “Now they’re effectively being told that they can’t have a say in whether they have a union.”
Pilots and airline attendants have long flown under the banner of union representation. Those workers are covered by the Railway Labor Act, a 92-year-old law that governs labor relations for railroads and air carriers. Organizers have more recently turned their attention to on-the-ground airport workers who during the Obama administration were considered covered by the National Labor Relations Act, a separate federal labor law that applies in most workplaces.
Here’s why the distinction matters: Airline and railroad workers can only unionize at a particular company if a majority of employees “systemwide"—like all pilots who fly for a particular airline across the country—votes to go with a union. Other workers have the right to organize in smaller collective bargaining units, such as those covering a specific type of worker at a single airport or terminal, where it’s often easier to communicate and the workers share similar day-to-day employment conditions.
“If an airport contractor gets hit with a petition under the auspices of the NLRA, they absolutely would raise the jurisdictional defense,” Michele Haydel Gehrke, an attorney in San Francisco who represents businesses in labor relations cases, told Bloomberg Law. “That’s kind of the get-out-of-jail-free card if you lose the election.”
The National Labor Relations Board in May referred to the NMB a case involving baggage handlers at the Portland International Airport. That was after an appeals court overturned an NLRB decision finding that it had jurisdiction over the case. The NLRB has referred three similar cases to the mediation board—which is yet to make a decision—since that time.
In an era of declining unionization rates, labor groups have found fertile recruiting grounds at their local airports. That’s thanks to the increased outsourcing of airport work and the low wages and shoddy conditions that often come with life on the ground, according to organizers.
The Service Employees International Union and International Association of Machinists and Aerospace Workers have been particularly active.
“They treat people like crap and they don’t pay people decent wages,” Jaime Contreras, capital area director for 32BJ SEIU, told Bloomberg Law. The SEIU’s mid-Atlantic affiliate represented Tujare in her case against Huntleigh. “When people try to speak up, they retaliate against their workers,” Contreras said.
Huntleigh and the law firm that represented the company in the Tujare case didn’t respond to Bloomberg Law’s requests for comment.
The SEIU has organized some 25,000 airport workers in the past decade, according to the union. SEIU spokeswoman Julie Karant told Bloomberg Law that a majority of Huntleigh workers at Dulles airport have signed cards indicating they’d like to organize, but they haven’t yet moved for an official vote.
The SEIU last year successfully pressured the Metropolitan Washington Airports Authority, which oversees operations at Dulles and Reagan National Airport, to force contractors to bump workers’ wages to a minimum of $11.55 an hour. That rate will automatically go up to $12.75 an hour by 2020.
The union has also had some success getting airlines that use contracting services to nudge contractors toward collective bargaining. American Airlines recently intervened in a labor dispute between workers at an airport in Philadelphia and two contractors shortly before a planned strike. PrimeFlight Aviation Services and Prospect Airport Services Inc. later agreed to recognize the SEIU and bargain over terms and conditions for some 1,400 airport workers.
“Agreements like the one we helped to facilitate in Philadelphia ensure labor peace and continued operational integrity at the airport, and that’s good for the entire airport community,” American spokeswoman Leslie Scott told Bloomberg Law. “As a heavily unionized company ourselves, American Airlines respects the right of employees of other companies to organize.”
The NMB and judges have focused on how much control an air carrier exerts on a contractor to determine whether workers are covered by the Railway Labor Act since the law was extended to cover subsidiaries and other service providers in 1936. What’s changed various times in the decades since is just how much control is sufficient for the board to get involved in a case.
The mediation board starting in 2012 took a more restricted approach to the control question. The NMB in a 2-1 decision in 2015 said it didn’t have jurisdiction over a union election petition for some 300 John F. Kennedy International Airport plane and terminal cleaners performing services for American Airlines and employed at the New York airport by a company called Airway Cleaners LLC. The board focused specifically on the fact that American had no control over personnel decisions like hiring, firing, and discipline.
A federal appeals court in Washington last year urged the NLRB to refer to the NMB a case involving baggage handlers at Portland International Airport who voted to unionize. The court said the NLRB changed its test for determining whether ABM Onsite, the workers’ employer, was sufficiently controlled by various air carriers to bring it under the Railway Labor Act.
ABM Onsite didn’t respond to Bloomberg Law’s request for comment.
The labor board didn’t, however, first ask the NMB to clarify its current test for air carrier control, according to the court. Observers told Bloomberg Law they expect the new NMB—now with a Republican majority—to reconsider its approach.
Supporters of the ABM Onsite decision say the NLRB and NMB overturned years of legal precedent in which control over hiring and firing was just one of six factors to consider. They say it’s up to Congress to change the law if needed.
“That’s an area to look at given the change in composition of the NMB and the NLRB,” Roger King, an attorney for the HR Policy Association, told Bloomberg Law. “The potential overlapping jurisdictions there should be re-examined.”
Siegel, the Machinists’ lawyer, said it makes sense to require workers who actually fly to organize in big nationwide bargaining groups. She said the logic behind extending the RLA to certain service providers doesn’t apply to workers on the ground.
“You can’t have a flight attendant who starts her day in New York and ends her day in L.A. have something happen as she’s flying over Chicago and try to figure out which contract applies,” Siegel said.
Although air carriers such as American have been willing at times to get involved in contractor labor disputes, they have by and large avoided a position in the debate over which law governs those spats. That’s because of tricky legal questions that could arise once it all shakes out.
The NMB is set to weigh in on the airport contractor issue as courts and regulators are still sorting out when affiliated businesses may be liable as joint employers of each other’s workers. That question also often focuses on how much control one business exerts over the other and its workers.
Until recently, the NLRB was moving toward an expanded view of joint employer liability for collective bargaining and unfair labor practices. At least one federal appeals court has also broadened its approach.
“That could cut both ways,” San Francisco attorney Gehrke said. “The airlines want the jurisdictional protections under the RLA, but they don’t necessarily want to be joint employers.”
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