Airway Cleaners LLC

760 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Airway Cleaners, LLC and United Construction Trades and Industrial Employees Union (UCTIE), Local 621, Petitioner and Local 660, United Workers of America, Intervenor and Lo- cal 32BJ, Service Employees International Un- ion, Intervenor. Case 29–RC–099871 May 7, 2015 DECISION ON REVIEW AND ORDER BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA AND MCFERRAN On June 21, 2013, the Regional Director for Region 29 issued a Decision and Direction of Election in two units of the Employer’s aircraft and building cleaning employ- ees at terminal 8, John F. Kennedy International Airport (JFK). The Regional Director found that the Employer’s current collective-bargaining agreement with Local 660, United Workers of America (Local 660) (the current CBA) did not bar the petition because the petitioned-for employees were not an accretion to the existing bargain- ing unit. Thereafter, in accordance with Section 102.67 of the Board’s Rules and Regulations, the Employer and Local 660 filed timely requests for review.1 The Employer contends that the Regional Director failed to properly address its contract-bar argument and find that the cur- rent CBA bars the petition. Local 660 contends that the Employer simply expanded the existing collective- bargaining unit and, thus, that the current CBA bars the petition. Intervenor Local 32BJ, Service Employees In- ternational Union (Local 32BJ) filed an opposition. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.2 1 Although the documents that the parties submitted as requests for review were in the form of exceptions, we find that they satisfy the requirements of Sec. 102.67(d) of the Board’s Rules and Regulations, and no party contends otherwise. 2 The Employer also filed with the Regional Director a motion for reconsideration of the Decision and Direction of Election, contending that the petition should be dismissed because the Employer is subject to the Railway Labor Act (RLA). Pursuant to Sec. 102.67 of the Board’s Rules and Regulations, the Regional Director transferred this case to the Board to determine whether it has jurisdiction over the Employer. On August 23, 2013, the Board requested that the National Mediation Board (NMB) review the record in this case and determine the applica- bility of the RLA to the Employer. On September 11, 2014, the NMB—with one member dissenting in relevant part—decided that the Employer is not subject to the RLA. Airway Cleaners, LLC, 41 NMB 262 (2014). On the basis of the record facts, and in view of the sub- stantial deference given to the NMB’s opinion, we concur with the findings of the NMB. Accordingly, we find that the Employer is en- gaged in commerce within the meaning of the National Labor Relations Act, and that it will effectuate the policies of the Act to assert jurisdic- tion. We therefore deny the motion for reconsideration. The Employer’s and Local 660’s requests for review are granted as they raise substantial issues regarding the Regional Director’s finding that the current CBA does not bar the petition. Having carefully considered the entire record in this proceeding, we find that the Regional Director’s applica- tion of accretion analysis was not appropriate in this case. We further find that the current CBA bars the peti- tion because the petitioned-for employees are included in the existing bargaining unit. Therefore, we shall dismiss the petition. I. BACKGROUND The Employer provides cleaning and maintenance ser- vices at various airports, including JFK. Local 660 rep- resents a bargaining unit of the Employer’s employees at JFK. The parties’ current CBA is effective from Sep- tember 1, 2012, to August 31, 2015. Its recognition clause states, “The Employer hereby recognizes [Local 660] as the exclusive representative of all full-time and regular part-time employees employed at JFK Airport excluding guards, supervisors, office employees, fore- men, salesmen, and executives employed at JFK Air- port.” Exhibit A of the current CBA lists job classifica- tions and their hourly rates as of September 1, 2012. The listed job classifications are aircraft cleaners, drivers, building cleaners, floor waxers, machine operators, host- esses, bartenders, and window cleaners. Airlines, terminal operators, and other entities periodi- cally issue requests for proposals for cleaning contracts at JFK. The Employer and other cleaning companies submit competing bids. The Employer’s customers can cancel contracts with 30 days notice. As a result, the Employer’s work force shrinks and expands based on its ability to obtain and retain contracts. Thus, since the Employer and Local 660’s predecessor executed their first CBA in 2003, the Employer has lost contracts in terminals 2 and 3 and acquired contracts in terminals 4, 7, and 8. The Employer operates under the assumption that employees employed to fulfill newly acquired con- tracts are included in the existing bargaining unit, and it applies the current CBA to those employees. When the Employer acquires a new contract, it can either hire new employees or transfer existing employees from other terminals. When the current CBA became effective, the Employ- er was already providing services at JFK in terminals 1, 4, 7, and 8 and in various cargo buildings under several different contracts, and the employees who provided the- se services were included in the existing bargaining unit. As relevant here, in terminal 8 the Employer employed four or five employees to provide overnight carpet clean- ing services for American Airlines and had a contract to 362 NLRB No. 87 AIRWAY CLEANERS, LLC 761 clean aircraft for Qatar, Air Berlin, Finn Air, and Royal Jordanian. Since the current CBA became effective, the Employer has begun to provide services for American Airlines in terminal 8 under two new contracts—aircraft cleaning services, beginning in approximately late October to ear- ly November of 2012, and building cleaning services, beginning on March 1, 2013. On March 8, 2013, United Construction Trades and Industrial Employees Union (UCTIE), Local 621 filed a petition under Section 9(c) of the Act, seeking to repre- sent “[a]ll full and part-time cleaners, lead persons, [sic] maintenance staff of terminal and Airplanes at Terminal 8 JFK.” A motion by Local 32BJ to intervene was grant- ed based on a showing of interest among employees in the petitioned-for unit. Because the Regional Director found that the Employer’s new terminal 8 employees were not an accretion to the existing bargaining unit, he directed elections in an “Aircraft cleaning unit” and a “Building cleaning (janitorial) unit.” The elections were held on July 23, 2013, and the ballots were impounded. II. ANALYSIS Contrary to the Regional Director, we find that accre- tion analysis is not appropriate in this case to determine whether the Employer’s new terminal 8 employees are included in the existing bargaining unit. “It is axiomatic that when an established bargaining unit expressly en- compasses employees in a specific classification, new employees hired into that classification are included in the unit.” Gourmet Award Foods, Northeast, 336 NLRB 872, 874 (2001), enfd. No. 02–1086, 2005 WL 23349 (D.C. Cir. 2005). Accretion analysis is not appropriate in such a situation. Ibid. These principles apply here. The current CBA’s recognition clause, read in light of the exhibit A wage schedule, clearly covers the new aircraft cleaners, build- ing cleaners, and drivers who were hired to fulfill the Employer’s new terminal 8 contracts with American Air- lines.3 The current CBA does not contain any jurisdic- 3 See Tarmac America, Inc., 342 NLRB 1049, 1049–1050 (2004) (focusing on “the bargaining unit description in the parties’ collective- bargaining agreement, including [the] appendix A [wage schedule],” to determine if an employee belonged within the existing bargaining unit) (emphasis added). tional limitation that might prevent it from being applied to those employees. When the Employer acquired the new terminal 8 contracts with American Airlines and hired its new terminal 8 employees, it already employed, in terminal 8 and other terminals at JFK, employees who worked in the same job classifications as the new termi- nal 8 employees. Those employees were included in the existing bargaining unit, and the current CBA was ap- plied to them. In the past, when the Employer acquired new contracts, the new aircraft cleaners, building clean- ers, and drivers who were hired to fulfill those new con- tracts also were included in the existing bargaining unit. In this case, the Employer simply expanded the existing bargaining unit, as it has done in the past, in order to ful- fill its new terminal 8 contracts with American Airlines. Therefore, the Employer’s new terminal 8 employees, whom Local 621 and Local 32BJ seek to represent, are included in the existing bargaining unit and are covered by the current CBA. Accretion analysis is therefore in- appropriate in this case. Because the Employer’s new terminal 8 employees are included in the existing bargaining unit, the current CBA bars the petition.4 ORDER The petition is dismissed. 4 Contrary to Local 621’s contention at the hearing, the record es- tablishes that the current CBA has been applied to the Employer’s new terminal 8 employees. The other contract bar requirements established in Appalachian Shale Products Co., 121 NLRB 1160 (1958), and Gen- eral Extrusion Co., 121 NLRB 1165 (1958), have been met here as well. Member Miscimarra agrees that the facts support application of a contract bar given that the Employer and Local 660 (and Local 660’s predecessor) for many years have maintained collective-bargaining agreements applicable to the JFK Airport as a whole, although he be- lieves an accretion analysis might be appropriate where, for example, a collective-bargaining agreement purported to apply to a broader geo- graphic area, to noncontiguous operations, or substantially beyond the preexisting bargaining unit. Additionally, although the Board tradition- ally has afforded substantial deference to decisions of the NMB regard- ing RLA jurisdiction, see, e.g., Federal Express Corp., 317 NLRB 1155 (1995), Member Miscimarra finds it unnecessary to decide among the varied NMB opinions regarding the jurisdictional question raised by the Employer’s motion for reconsideration (see fn. 2, supra) because dismissal of the election petition—which the Board here unanimously agrees is appropriate—would also be the result in the absence of NLRB jurisdiction.