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Allied Aviation Service Co. of New Jersey v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

April 18, 2017

Allied Aviation Service Company of New Jersey, Petitioner
National Labor Relations Board, Respondent Local 553, I.B.T., Intervenor

          Argued December 13, 2016

         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.



         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 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 (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 (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 (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 (2001).

         After five days of testimony on the issue, NLRB Regional Director J. Michael Lightner found that the Allied workers in question were non-supervisory employees and directed an election in the petitioned-for bargaining unit. Allied sought Board review of the non-supervisory designation. The company also contended that recess appointments made to the NLRB 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 ...

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