854 F.3d 55 (D.C. Cir. 2017), 15-1321, Allied Aviation Service Co. of New Jersey v. National Labor Relations Board

Docket Nº:15-1321, 15-1360
Citation:854 F.3d 55
Opinion Judge:Pillard, Circuit Judge:
Party Name:ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT, LOCAL 553, I.B.T., INTERVENOR
Attorney:Gregory S. Lisi, pro hac vice, argued the cause for petitioner. On the brief was Justin P. Fasano. Amy H. Ginn, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Richard Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel,...
Judge Panel:Before: BROWN, SRINIVASAN and PILLARD, Circuit Judges.
Case Date:April 18, 2017
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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854 F.3d 55 (D.C. Cir. 2017)

ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY, PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT, LOCAL 553, I.B.T., INTERVENOR

Nos. 15-1321, 15-1360

United States Court of Appeals, District of Columbia Circuit

April 18, 2017

Argued December 13, 2016.

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[Copyrighted Material Omitted]

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On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Gregory S. Lisi, pro hac vice, argued the cause for petitioner. On the brief was Justin P. Fasano.

Amy H. Ginn, Attorney, National Labor Relations Board, argued the cause for respondent. With her on the brief were Richard Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart and Usha Dheenan, Supervisory Attorneys.

Jae W. Chun argued the cause for intervenor. With him on the brief was Eugene S. Friedman.

Before: BROWN, SRINIVASAN and PILLARD, Circuit Judges.

OPINION

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Pillard, Circuit Judge:

Allied Aviation Services Company of New Jersey (Allied) is a commercial airline fuel service provider with operations throughout the United States. Since 2012, a swath of Allied's employees at Newark Liberty International Airport has sought representation by and collective bargaining through Local 553, International Brotherhood of Teamsters, AFL-CIO (the Union). Allied challenges the National Labor Relations Board's (NLRB) decision that Allied violated the National Labor Relations Act (NLRA) by failing to recognize and bargain with the Union.

When the Union first sought to represent the employees at issue, Allied argued that these employees, whose job titles all include the word " Supervisor," are statutory supervisors exempt from the Act. When the Board rejected that argument on the ground that the work of the relevant employees was not in fact supervisory within the meaning of the NLRA, Allied fell back on assertions that the Board lacked jurisdiction over the company because its work is so extensively directed by common carriers that Allied is governed not by the NLRA but by the Railway Labor Act (RLA). The Board rejected that claim for want of record evidence that Allied is " owned or controlled by or under common control with" a common carrier, as the

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RLA requires. 45 U.S.C. § 151 First. Allied alternately maintained, unsuccessfully, that it cannot be held to Board orders invalidated by Noel Canning v. NLRB, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), despite a duly empowered Board's ratification of those orders.

Allied petitions this court for review. We hold that Allied's petition fails to establish RLA jurisdiction; that a constitutionally adequate Board panel's certification of the Union as the employees' representative cured any defect in the Board's earlier order; and that substantial evidence supports the Board's statutory-supervisor classifications. Because the Board's decision is legally correct and supported by substantial evidence, we deny the petition for review and grant the Board's cross-application for enforcement.

I. Background

The Port Authority of New York and New Jersey contracted with Allied to provide fueling services to approximately fifty airlines at Newark Liberty International Airport. At issue in this case is a group of forty-four of Allied's employees who seek representation by the Union. They include Fueling Supervisors (including Dispatch and Operations Supervisors), Tank Farm Supervisors, Maintenance Supervisors (including Parts Supervisors and Parts Persons), and Training Supervisors. These employees generally ensure the smooth provision of fuel service at Newark Airport. Fueling Supervisors distribute the equipment and workload to the fuelers and ensure that airlines' fueling needs are fulfilled. Tank Farm Supervisors monitor storage and supply facilities (the fuel storage " tank farm" ), the airport's fuel pipeline system, and the inventory, inflow, and outflow of fuel. Maintenance Supervisors keep track of Allied's fleet of gas tankers and their maintenance. And Training Supervisors train fuelers on the procedures mandated by each airline. These " Supervisors" are overseen by each department's managers, who report in turn to a General Manager.

A. Election Petition

In March 2012, the Union filed a petition seeking to represent these forty-four employees. Allied opposed the petition and argued that the employees are supervisory within the meaning of section 2(11) of the NLRA and therefore exempt from its coverage. The NLRA explicitly exempts supervisors from its definition of a covered " employee" eligible to unionize, 29 U.S.C. § § 152(3), (11), but it is job function, not title, that confers supervisory status, see Jochims v. NLRB, 480 F.3d 1161, 1168, 375 U.S.App.D.C. 278 (D.C. Cir. 2007).

Statutory supervisors are those with authority to act " in the interest of the employer" to carry out or " effectively to recommend" at least one of twelve enumerated activities, provided that the exercise of that authority requires " the use of independent judgment." 29 U.S.C. § 152(11); see

NLRB v. Health Care & Ret. Corp., 511 U.S. 571, 573-74, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994). The twelve activities are: " to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action." 29 U.S.C. § 152(11). The party asserting supervisory status bears the burden of proof on the point. See NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 711-12, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001).

After five days of testimony on the issue, N.L.R.B. Regional Director J. Michael Lightner found that the Allied workers in question were non-supervisory employees and directed an election in the petitioned-for

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bargaining unit. Allied sought Board review of the non-supervisory designation. The company also contended that recess appointments made to the N.L.R.B. in January 2012 were invalid. In June 2012, a three-member panel of the Board affirmed the direction of election except that, because it thought there was a substantial issue whether Training Supervisors were statutory supervisors, the panel permitted those three employees to vote only by challenged ballot, meaning that the Training Supervisors' ballots would not be opened or counted unless the election was so close that their votes might change its results. If it became clear that only with their votes might the Union gain a majority, the administrative law judge (ALJ) would have to take further evidence and determine whether the Training Supervisors were statutory supervisors before opening and counting their ballots. In a footnote, the Board rejected Allied's challenge to the 2012 recess appointments.

The Supreme Court's decision in Noel Canning v. NLRB, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), later invalidated the appointments of two of the three panel members that issued the 2012 order. That holding meant the Board lacked a quorum from January 4, 2012, to August 5, 2013. Thus, in retrospect, the panel acted without authority. On December 3, 2013, however, another Board panel, whose members had all been validly appointed, considered the record in light of Allied's objections, including those urged on the 2012 panel, and certified Union representation.

Meanwhile, on June 7, 2012, the Union won a tight election. Without the three Training Supervisors' votes, the employees voted 21-20 in favor of representation. An ALJ then heard an additional day of testimony and accepted post-hearing briefing on whether the Training Supervisors qualified as statutory supervisors. During the hearing, the parties reversed their initial positions to align with their preferences on representation. Allied argued that the Training Supervisors should be considered non-supervisory, so eligible to participate in the election, such that their votes would defeat union representation. The Union argued that the Training Supervisors were statutory supervisors whose votes should be excluded, allowing the Union to be recognized. Accordingly, the Union now bore the burden of proving supervisory status.

The ALJ found that the Training Supervisors " effectively...recommend" hiring within the meaning of the Act: The Training Supervisors had the authority to make recommendations regarding hiring of probationary employees, the Training Supervisors' assessments drew on their own independent judgment, and Allied management routinely adhered to the Training Supervisors' recommendations without independent investigation. In the ALJ's judgment, the Training Supervisors were therefore supervisory under the Act.

Allied took exception to the ALJ's decision, arguing that there was insufficient evidence of supervisory authority and that it was error to classify the Training Supervisors differently from the other petitioned-for employees that the 2012 Board panel had held were non-supervisory. As noted, a duly-constituted three-member Board panel considered the record, including the earlier Board order, in light of Allied's objections. The Board panel certified the Union as the workers' representative on December 3, 2013.

Not once during the entire election proceeding did Allied argue that it was subject to the jurisdiction of the RLA rather than the NLRA. In fact, when asked directly by the hearing officer in March 2012 whether the company was subject to RLA jurisdiction, counsel for Allied responded,

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" Not tat I know of. I would have to look into that." J.A. 141. However, it appears that neither during the ensuing five days of hearings nor during the...

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