JetBlue uses outside contractors to provide baggage handling, skycap, checkpoint, and wheelchair services at JFK’s Terminal Five. Jet Blur selected PrimeFlight to replace Air Serv at JFK. Air Serv had a collective bargaining agreement with the SEIU.
PrimeFlight hired 362 employees, 52 percent of whom were former Air Serv workers. On May 23, SEIU demanded recognition as the bargaining agent of the PrimeFlight workers. PrimeFlight didn’t respond. On July 6, its Terminal Five staff totaled 507 employees. Only 39 percent of those 507 employees had worked at Air Serv. PrimeFlight argued it had no obligation to bargain with the SEIU because the former union-represented employees from Air Serv did not constitute a majority of PrimeFlight’s new workforce.
Air carriers such as JetBlue are covered by the Railway Labor Act, and the NLRB may consider a ground service company a “derivative carrier” if its work is subject to significant control by the air carrier. PrimeFlight argued JetBlue exercised such control – meaning the NLRB would not have jurisdiction over the case – but the judge said the evidence was unpersuasive. He also said it appeared that since 2013 the National Mediation Board (which enforces the Railway Labor Act) has been ceding jurisdiction over companies like PrimeFlight to the NLRB.
With jurisdiction before the NLRB, the critical date to determine whether PrimeFlight had a duty to bargain was May 23 – the date the SEIU demanded recognition. The union-represented workers were a majority of the workforce at that time, and the union’s status as their bargaining agent was established then. In fact, the company had hired workers in every job classification by May 9 and the hiring of additional workers over the next two months did not affect the company’s duty to bargain with the SEIU.
The judge entered a preliminary injunction requiring the company to meet and bargain with the SEIU while the NLRB completed processing the administrative proceeding against the company. The court held, however, that “any agreement reached between PrimeFlight and the Union is subject to termination if the NLRB determines that PrimeFlight is not subject to the NLRA or did not violate any provisions therein.”
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.