NLRB Exercises Jurisdiction over Employer Despite Joint Employment with Entity Not Subject to the NLRA | Practical Law

NLRB Exercises Jurisdiction over Employer Despite Joint Employment with Entity Not Subject to the NLRA | Practical Law

In Airway Cleaners LLC, the National Labor Relations Board (NLRB) held that it exercises jurisdiction over an employer despite the employer's joint employment with an entity that is exempt from the NLRB's jurisdiction under the National Labor Relations Act (NLRA).

NLRB Exercises Jurisdiction over Employer Despite Joint Employment with Entity Not Subject to the NLRA

by Practical Law Labor & Employment
Published on 26 Apr 2016 • USA (National/Federal)
In Airway Cleaners LLC, the National Labor Relations Board (NLRB) held that it exercises jurisdiction over an employer despite the employer's joint employment with an entity that is exempt from the NLRB's jurisdiction under the National Labor Relations Act (NLRA).
On April 18, 2016, in Airway Cleaners LLC, the panel (Board) heading the NLRB's judicial functions held that it maintains jurisdiction over an employer even if the employer is a joint employer with an entity that is exempt from the Board's jurisdiction under the NLRA (363 N.L.R.B. No. 166, (Apr. 18, 2016)).
Airway Cleaners LLC (Airway) provided cleaning and maintenance services at John F. Kennedy International Airport. Airway maintained that it was exempt from Board jurisdiction and should be subject to the jurisdiction of the National Mediation Board (NMB) under the Railway Labor Act (RLA), since air carriers who control its operations were subject to the RLA (and as a result were not subject to the NLRA) (29 U.S.C. § 152(2)). Local 660 of the United Workers of Americas (Local 660) argued that recent NLRB decisions required the Board to find Airway outside of its jurisdiction.
The Board majority (Chairman Pearce and Member Hirozawa) denied Local 660's request for review of the Regional Director's Decision and Direction of Election. The majority noted that:
  • Its decision in Browning-Ferris Industries of California (Browning-Ferris) did not change the way that its joint employer doctrine interacted with other rules under the NLRA (362 N.L.R.B. No 186 (2015)).
  • The Board does not employ a joint employer analysis to determine jurisdiction. For example, the lack of jurisdiction over a government entity does not eliminate the right of a private employer with which it is a joint employer to engage in collective bargaining in accordance with the NLRA. (Management Training Corp., 317 N.L.R.B. 1355, 1358 (1995).)
  • It rejects the use of its decision in Northwestern University as an example of the Board declining to assert jurisdiction when it lacked jurisdiction over other employers in the same industry because Northwestern was unusual in that most industries do not have the degree of interrelationship that exists among a sports league's teams (362 N.L.R.B. No. 167 (2015)).
The majority found that:
  • Even if Airway was a joint employer with an employer (the air carrier) that was beyond the Board's jurisdiction, the joint employment was irrelevant because the Board does not employ a joint employer analysis to determine jurisdiction.
  • The Board previously asserted jurisdiction over Airway, the NMB previously declined jurisdiction, and there was no evidence that Airway's competitors were not subject to Board jurisdiction.
In a concurring opinion, Member Miscimarra agreed with the majority that it should assert jurisdiction over Airway because:
  • The Board gives substantial deference to the NMB's jurisdictional determinations (see DHL Worldwide Express, Inc., 340 N.L.R.B. 1034 (2003)).
  • The NMB's decline of jurisdiction over Airway supports a finding that the Board has jurisdiction, because:
    • given the NMB's decline of jurisdiction, failure by the Board to extend jurisdiction would leave Airway in a "no-man's land," subject to neither statute; and
    • leaving an employer in jurisdictional "no-man's land" would be contrary to Congressional intent.
  • He disagreed with the Board's joint employer standard adopted in Browning-Ferris, which Local 660 relied on in its jurisdictional argument.
Member Miscimarra argued that Local 660 raised substantial issues which, if he had agreed with the Browning-Ferris standard, would lead him to find the Board's assertion of jurisdiction in Airway improper because:
  • The expansive joint employer standard of Browning-Ferris could preclude the Board from asserting jurisdiction when certain joint employer entities are subject to the RLA, creating complexities regarding over which entities the Board has jurisdiction. These jurisdictional problems put Browning-Ferris at odds with Management Training Corp.
  • When two entities are a joint employer, Browning-Ferris requires each to engage in bargaining about terms and conditions of employment, but the entity that is subject to NLRB jurisdiction cannot possibly satisfy these requirements because the other entity is not subject to the NLRA.
  • In Northwestern University, the Board declined jurisdiction over the school's grant-in-aid scholarship football players because the other conference schools were public institutions over which the Board had no jurisdiction.