By Bradford L. Livingston

While the NLRA governs labor relations for most private sector employers, it specifically excludes employers covered under the Railway Labor Act (“RLA”) ─ the earlier federal statute enacted to avoid interruptions to interstate commerce and transportation via rail or air.  And just as the NLRB handles disputes under the NLRA, the National Mediation Board (“NMB”) has jurisdiction over employers in the airline and railroad industries.  Sometimes, however, issues arise over which federal statute and agency cover an employer.  In those cases, the NLRB typically defers to the NMB’s assessment as to whether it has jurisdiction.  A recent decision by the NMB illustrates the pitfalls for employers when these agencies — both currently in the firm control of supporters of organized labor — decide these jurisdictional issues. 

The employer at issue in that decision operates a shuttle bus service at numerous airports to transfer airline employees from employee parking lots to airport terminals.  After several terminated employees from the shuttle service’s LaGuardia Airport operations filed unfair labor practice charges with the NLRB, in August 2011 the NLRB asked the NMB to assess whether or not the employees were covered under the RLA rather than the NLRA.  Even though the shuttle service does not operate aircraft and is not owned directly or indirectly by any air carrier, the NMB had determined in prior cases ─ using well-established standards for making such determinations ─ that the shuttle service’s operations were covered under the RLA because transporting employees from parking areas to terminal buildings has traditionally been performed by air carriers.  On June 19, 2012, however, the NMB determined that the shuttle service was not subject to RLA jurisdiction at LaGuardia Airport.  Thus, the NMB, which has no statutory authority to adjudicate what might be analogous “ULP” claims under the RLA, effectively referred the issue back to the NLRB to assess the discharges under the its “employee friendly” ULP standards.  Had the NMB asserted jurisdiction over the shuttle service as it had done in prior cases, the employees would not been able to pursue their “ULP claims” under the RLA.

The NLRB currently has four members, three of whom are Democratic appointees.  The lone Republican on the Board, Member Brian Hayes, is serving a term that will expire at the end of this year (leaving the NLRB with three union advocates as its sole members).  On July 3, the NMB announced the resignation of Elizabeth Dougherty, the NMB’s lone Republican Member, leaving the NMB with two Democrats as its sole members.  For the foreseeable future, both agencies will operate with majorities and be able to decide every case brought before them by supporters of organized labor.  So whether a dispute is covered under the NLRA or RLA, employers are caught between a rock and a hard place.