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

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 13, 2016 Decided April 18, 2017
No. 15-1321
ALLIED AVIATION SERVICE COMPANY OF NEW JERSEY,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
LOCAL 553, I.B.T.,
INTERVENOR
Consolidated with 15-1360
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
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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.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: 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
3
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
4
“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
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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 (ALJ) would have to take further
evidence and determine whether the Training Supervisors were
statutory supervisors before opening and counting their ballots.
In a footnote, the Board rejected Allied’s challenge to the 2012
recess appointments.
The Supreme Court’s decision in Noel Canning v. NLRB,
134 S. Ct. 2550 (2014), later invalidated the appointments of
two of the three panel members that issued the 2012 order.
That holding meant the Board lacked a quorum from January
4, 2012, to August 5, 2013. Thus, in retrospect, the panel acted
without authority. On December 3, 2013, however, another
Board panel, whose members had all been validly appointed,
considered the record in light of Allied’s objections, including
those urged on the 2012 panel, and certified Union
representation.
Meanwhile, on June 7, 2012, the Union won a tight
election. Without the three Training Supervisors’ votes, the
employees voted 21-20 in favor of representation. An ALJ
then heard an additional day of testimony and accepted post-
hearing briefing on whether the Training Supervisors qualified
as statutory supervisors. During the hearing, the parties
reversed their initial positions to align with their preferences on
representation. Allied argued that the Training Supervisors
should be considered non-supervisory, so eligible to participate
6
in the election, such that their votes would defeat union
representation. The Union argued that the Training
Supervisors were statutory supervisors whose votes should be
excluded, allowing the Union to be recognized. Accordingly,
the Union now bore the burden of proving supervisory status.
The ALJ found that the Training Supervisors
“effectively…recommend” hiring within the meaning of the
Act: The Training Supervisors had the authority to make
recommendations regarding hiring of probationary employees,
the Training Supervisors’ assessments drew on their own
independent judgment, and Allied management routinely
adhered to the Training Supervisors’ recommendations without
independent investigation. In the ALJ’s judgment, the Training
Supervisors were therefore supervisory under the Act.
Allied took exception to the ALJ’s decision, arguing that
there was insufficient evidence of supervisory authority and
that it was error to classify the Training Supervisors differently
from the other petitioned-for employees that the 2012 Board
panel had held were non-supervisory. As noted, a duly-
constituted three-member Board panel considered the record,
including the earlier Board order, in light of Allied’s
objections. The Board panel certified the Union as the
workers’ representative on December 3, 2013.
Not once during the entire election proceeding did Allied
argue that it was subject to the jurisdiction of the RLA rather
than the NLRA. In fact, when asked directly by the hearing
officer in March 2012 whether the company was subject to
RLA jurisdiction, counsel for Allied responded, “Not that I
know of. I would have to look into that.” J.A. 141. However,
it appears that neither during the ensuing five days of hearings
nor during the following two years of proceedings before the
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Board did Allied “look into” the question or make any mention
whatsoever of any objection to the NLRB’s jurisdiction.
B. Unfair Labor Practices Case
On April 22, 2014, the Union charged Allied with refusal
to negotiate a collective-bargaining agreement in violation of
sections 8(a)(1) and (5) of the NLRA, 29 U.S.C. §§ 158(a)(1),
(5). Accordingly, the Board’s General Counsel filed an unfair
labor practices complaint against Allied. Allied admitted that
it refused to bargain, but contended it had no obligation to do
so because the Board erred in certifying the unit. The Board’s
General Counsel moved for summary judgment and the Board
directed Allied to show cause why summary judgment should
not be granted. Allied then also asserted, for the first time in
the years-long dispute, that Allied is under the direct control of
a common carrier, making it an employer subject to RLA
jurisdiction and therefore beyond the NLRB’s jurisdiction. It
also pressed its constitutional recess-appointment claim and its
statutory challenge to the Board’s classification of unit
members as non-supervisors. The Board held in the Union’s
favor and ordered Allied to bargain.
II. Analysis
A. Allied Has Not Shown that it is Subject to RLA
Jurisdiction, so Exempt from the NLRA
We turn first to Allied’s contention that it is not bound by
the Board’s orders because it is an RLA employer exempt from
the NLRA. The NLRA protects the rights of employees to
organize and bargain collectively, see 29 U.S.C. §§ 151, 157,
but expressly exempts employers “subject to the Railway
Labor Act” and “any individual employed by an employer
subject to the Railway Labor Act” from its reach, id. §§ 152(2)-
 8
(3). RLA employers include rail carriers, common air carriers,
and “any company which is directly or indirectly owned or
controlled by or under common control with any carrier.” 45
U.S.C. §§ 151 First, 181.
The distinction between coverage under the NLRA and the
RLA is significant for employers and employees. Each Act
protects employees’ right to join together to improve working
conditions and facilitates labor-management relations. But
because of the central role in the national economy of smooth
operation of the nation’s rail and air carriers, the RLA places a
higher priority than the NLRA on avoiding strikes or lockouts.
To that end, the RLA requires more extensive dispute-
resolution efforts before either employer or employee can take
unilateral action. See ABM Onsite Servs.-West, Inc. v. NLRB,
849 F.3d 1137, 1139-40 (D.C. Cir. 2017).
The National Mediation Board (NMB), which administers
the RLA, employs a two-part “function and control” test to
determine whether an employer that is not itself a carrier is
sufficiently controlled by a carrier to be subject to RLA
jurisdiction. See Signature Flight Support of Nev., 30 N.M.B.
392, 399 (2003). The conjunctive test asks (1) “whether the
nature of the work is that traditionally performed by employees
of rail or air carriers,” and (2) “whether the employer is directly
or indirectly owned or controlled by, or under common control
with a carrier or carriers.” Id. To determine whether an
employer is under the control of a rail or air carrier, the NMB
traditionally considers six factors:
(1) the extent of the carrier’s control over the manner
in which the company conducts its business; (2) the
carrier’s access to the company’s operations and
records; (3) the carrier’s role in the company’s
personnel decisions; (4) the degree of carrier
9
supervision of the company’s employees; (5) whether
company employees are held out to the public as
carrier employees; and (6) the extent of the carrier’s
control over employee training.
ABM Onsite, 849 F.3d at 1142.
The Board and the NMB each has independent authority
to decide whether the RLA bars the NLRB’s exercise of
jurisdiction. See id. at 1140; United Parcel Serv., Inc. v. NLRB,
92 F.3d 1221, 1224-26 (D.C. Cir. 1996). When presented with
a claim of RLA jurisdiction, the Board’s stated practice is to
refer the parties to the NMB and dismiss the charge or petition
in cases in which it is clear the employer is subject to the RLA;
to retain cases in which RLA jurisdiction is clearly lacking;
and, because the NMB has particular expertise in administering
the RLA, to refer close cases of arguable RLA jurisdiction to
the NMB for its advisory opinion before the NLRB itself
decides the issue. See NLRB CASEHANDLING MANUAL, PART
2: REPRESENTATION PROCEEDINGS, § 11711.1-11711.2 (Jan.
2017); ABM Onsite, 849 F.3d at 1140; Fed. Express Corp., 317
N.L.R.B. 1155, 1156 & n.6 (1995). There is, however, “no
statutory requirement that the Board first submit a case to the
NMB for an opinion prior to determining whether to assert
jurisdiction.” Spartan Aviation Indus., Inc., 337 N.L.R.B. 708,
708 (2002); accord United Parcel Serv., 92 F.3d at 1224-26.
The Board rejected Allied’s belatedly-raised claim of RLA
jurisdiction because the record evidence did not establish the
requisite carrier control. Allied Aviation Serv. Co. of N.J., 362
N.L.R.B. No. 173, 2015 WL 4984885, at *1-2 (Aug. 19, 2015).
We hold that the Board’s decision that Allied failed to establish
the “control” portion of the “function and control” test is
legally correct and supported by substantial evidence. We thus
need not decide how the other element—whether Allied’s
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employees’ work is of a nature traditionally performed by air
carrier employees—would apply here.
The lack of record evidence of carrier control is not
surprising. Allied missed chances to build a record on the issue
by failing to object to NLRB jurisdiction until after the factual
record had been developed. As noted above, when prompted
by the hearing officer during the 2012 supervisory-status
hearing, counsel for Allied failed to embrace or follow up on
the suggestion that the company might be an RLA employer.
Allied did not mention RLA jurisdiction again until its June 30,
2014, response to the Board’s order to show cause—more than
two years after the unit members’ supervisory status had been
litigated and the representation election concluded.
Indeed, it is plausibly suggested that Allied’s RLA
jurisdiction argument was forfeited because Allied never
argued to the Board that it applied the wrong carrier-control
analysis. See Local 553 Intervenor Br. at 4-7. This court may
not consider objections not properly raised before the Board,
by motion for reconsideration or otherwise, in the absence of
“extraordinary circumstances.” 29 U.S.C. § 160(e), see 29
C.F.R. § 102.46(b)(1), (b)(2), (d); Alden Leeds, Inc., v. NLRB,
812 F.3d 159, 166-67 (D.C. Cir. 2016); DHL Express, Inc. v.
NLRB, 813 F.3d 365, 371-72 (D.C. Cir. 2016). Even
arguments against NLRB jurisdiction are subject to section
10(a)’s preservation requirement unless the Board acted
patently beyond its jurisdiction, or “outside the orbit of its
authority” such that there is “no order to enforce.” NLRB v.
Cheney Cal. Lumber Co., 327 U.S. 385, 388 (1946); accord
Noel Canning v. NLRB, 705 F.3d 490, 498 (D.C. Cir. 2013),
aff’d, 134 S. Ct. 2550 (2014); Carroll Coll., Inc. v. NLRB, 558
F.3d 568, 574 (D.C. Cir. 2009); Noel Foods v. NLRB, 82 F.3d
1113, 1121 (D.C. Cir. 1996). But we need not decide whether
Allied forfeited its bid for the NLRB to dismiss this case in
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order that it might be reheard before the NMB because the
record clearly supports the NLRB’s exercise of jurisdiction.
Allied argues that the Board misapplied precedent by
granting too much weight to a single carrier-control factor—
the carrier’s role in personnel decisions. Allied does not
articulate the applicable standard of review, but its argument
amounts to a claim that the Board arbitrarily and capriciously
misapplied precedent. See ABM Onsite, 849 F.3d at 1142. We
therefore review whether the Board’s decision was “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). We discern no
such error here.
Contrary to Allied’s contention, the Board did not rely on
only a single factor. The Board’s analysis was more extensive.
When evaluating whether Allied was under the direct or
indirect control of air carriers, the Board first acknowledged
that recent NMB decisions “emphasized in particular the
absence of [carrier] control over hiring, firing, and/or
discipline.” Allied Aviation Serv. Co. of N.J., 362 N.L.R.B. No.
173, 2015 WL 4984885, at *1. Allied did not argue that any
carrier controlled its personnel decisions, nor, in the Board’s
view, did the record contain evidence to support such a claim.
Id. at *2. The Board also specifically observed that the record
evidence fell “substantially short of the considerations relied
upon” in dissents written by Member Geale in two separate
cases: Airway Cleaners, LLC, 41 N.M.B. 262 (2014), and
Menzies Aviation, Inc., 42 N.M.B. 1 (2014). See 362 N.L.R.B.
No. 173, 2015 WL 4984885, at *2. Those considerations
include all six factors relevant to carrier control. See Airway
Cleaners, 41 N.M.B. at 267, 274-77 (Geale, M., concurring in
part and dissenting in part) (concluding that there was carrier
control in view of evidence relating to “several factors,
including the extent of the carrier's control over the manner in
12
which the company conducts its business, access to the
company’s operations and records, role in personnel decisions,
degree of supervision of the company’s employees, whether
employees are held out to the public as carrier employees, and
control over employee training”); Menzies Aviation, Inc., 42
N.M.B. at 7-8 (Geale, M., dissenting) (applying his Airway
Cleaners analysis to similar facts). By contrasting the evidence
in this case to the treatment in Member Geale’s dissents, the
Board acknowledged the relevance of all of the factors and
concluded that Allied’s evidence fell short even under the
traditional six-factor test. The Board’s decision was not an
arbitrary or capricious misapplication of precedent, but
adequately considered and weighed all the evidence before it
that was relevant to carrier control.
The Board’s decision is therefore distinguishable from the
one we recently considered in ABM Onsite. There, we held that
the Board had departed from past precedent by effectively
treating control over personnel decisions as “necessary” to
establish carrier control. ABM Onsite, 849 F.3d at 1144. We
concluded that if the Board had applied the traditional six-
factor test, the petitioner “would plainly fall under the control
of air carriers.” Id. at 1143.
In contrast, the record in this case confirms that the
Board’s factual findings regarding carrier control were
supported by substantial evidence. See 29 U.S.C. § 160(f).
Allied presented no evidence that it was under contract with
any common carrier, nor did it identify any case in which an
employer without a carrier contract was subject to RLA
jurisdiction. Instead, the only contract the record refers to—
fleetingly—is Allied’s “performance driven” contract with the
Port Authority. J.A. 56, 234. The Port Authority is not a carrier
for RLA purposes. See Bombardier Transit Sys. Corp., 32
N.M.B. 131, 146 (2005). We need not here decide whether an
13
employer must contract directly with a carrier to be subject to
RLA jurisdiction, but we note that the lack of such a contract
here undermines an already sparse record on the carrier-control
issue.
Allied presented no evidence that the carriers at Newark
Airport hold out Allied employees to the public as their own
employees, exercise control over how Allied runs its
operations, supervise Allied employees to a degree sufficient
to establish control, or exert meaningful control over Allied’s
personnel decisions. Cf. Aircraft Servs. Int’l Grp., Inc., 33
N.M.B. 258, 266-67, 270-71 (2006) (finding RLA jurisdiction
where record showed carrier had “daily interaction” with
employees at issue, including mechanics who “deal exclusively
with Carrier personnel in performing their duties”); Empire
Aero Ctr., Inc., 33 N.M.B. 3, 10 (2005) (finding RLA
jurisdiction where, inter alia, carrier individually approved or
rejected each employee assigned to its projects). Allied argues
that its supervisory staffing decisions are subject to review and
approval by a fueling committee “made up of representatives
of every common air carrier operating out of Newark” Airport.
Pet’r Br. at 26-27. But the record is devoid of evidence of the
composition of the fueling committee, whether it contains any,
let alone a controlling bloc of, common air carrier
representatives, or the extent of any authority the fueling
committee may have to control Allied’s staffing decisions. Cf.
Aircraft Servs. Int’l, Inc., 352 N.L.R.B. 137, 139 (2008)
(finding substantial carrier control over staffing levels and
hours worked); Aircraft Servs. Int’l Grp, Inc., 342 N.L.R.B.
977, 977 (2004) (finding carrier control where employer
complied with carrier request not to hire certain persons and
carriers directly rewarded good employee service).
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B. Allied’s Noel Canning Challenge Fails
Allied next contends that Noel Canning v. NLRB, 134 S.
Ct. 2550 (2014), by invalidating the appointments of two of the
three panel members that directed the election in 2012, id. at
2578, vitiates all Board proceedings against it. See Pet’r Br. at
33-34. We disagree and hold that when the duly-constituted
panel certified Union representation in 2013 it ratified the 2012
panel’s direction of election, thereby remedying the identified
defect. The 2013 Board panel certified the Union as
representative after considering the record and all of Allied’s
exceptions to certification, including the arguments Allied
raised before the 2012 panel. See Decision and Certification of
Representative, 22-RC-077044 (Dec. 3, 2013), J.A. 1358-60;
see also Employer’s Exceptions to Administrative Law Judge
Recommended Decision on Challenged Ballots at 30-32, 22-
RC-077044 (Feb. 12, 2013), J.A. 1345-47. That ratification
remedied the Appointments Clause defect in the 2012 Board
panel’s order. Cf. ManorCare of Kingston PA, LLC v. NLRB,
823 F.3d 81, 90 (D.C. Cir. 2016); Doolin Sec. Sav. Bank v.
Office of Thrift Supervision, 139 F.3d 203, 212-14 (D.C. Cir.
1998).
C. The Board’s Statutory Supervisor Decisions are
Supported by Substantial Evidence
Finally, we address two attacks mounted by Allied against
the Board’s statutory supervisor classifications. First, Allied
contends that the Board erred in classifying all the unit
members as non-supervisory under the NLRA. Allied
alternatively argues that all “Supervisors” have substantially
similar job responsibilities such that, if the other employees
deemed eligible to be members of the certified unit are not
supervisory, neither are the Training Supervisors.
15
As the party asserting during the first hearing that the
employees were supervisory, Allied bore the burden of proof.
Ky. River Cmty. Care, Inc., 532 U.S. at 711-12. We must
sustain the Board’s decision that Allied failed to carry that
burden unless it is “contrary to law, inadequately reasoned, or
unsupported by substantial evidence.” Brusco Tug & Barge
Co. v. NLRB, 247 F.3d 273, 276 (D.C. Cir. 2001) (citation
omitted). Given the Board’s expertise, it enjoys a large
measure of discretion on the question. Nathan Katz Realty,
LLC v. NLRB, 251 F.3d 981, 988 (D.C. Cir. 2001). The
Board’s findings of fact are conclusive so long as they are
“supported by substantial evidence on the record considered as
a whole.” See 29 U.S.C. § 160(f). “Put differently, we must
decide whether on this record it would have been possible for
a reasonable jury to reach the Board’s conclusion.” Allentown
Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-67
(1998).
Allied principally argues that the unit members are
statutory supervisors because they exercise disciplining
authority over other employees. See Pet’r Br. at 37-38.
Having a role as witnesses, or reporters of fact, within a
disciplinary process is legally insufficient to establish the
effective exercise of disciplinary authority. See Nathan Katz
Realty, 251 F.3d at 989; Ill. Veterans Home at Anna L.P., 323
N.L.R.B. 890, 890-91 (1997). Allied’s record evidence shows
only that the unit members file “reportorial” forms recounting
employee misconduct, which are then taken into account by
higher-ups who make the disciplinary decisions. In particular,
the evidence showed that, under Allied’s disciplinary system,
unit members can “write up” employees via “irregularity
reports,” but the reports do not amount to discipline. See, e.g.,
J.A. 151-52, 688-89. Unit members give their irregularity
reports to Jorge Quintero, Allied’s discipline adjudicator. See
J.A. 90-93.
16
The unit member who files a given report plays a role in
substantiating conduct on which discipline might be based, but
is “never involved in the ultimate [disciplinary] decision.” See
J.A. 93; see also J.A. 91-93, 299-300, 1027. Unit members
have the prerogative to counsel employees verbally in lieu of
writing irregularity reports. See J.A. 356, 400. But neither the
discretion to forgo a written report nor the authority to write
one suffices to establish independent disciplinary authority on
unit members’ part. In sum, the record evidence that unit
members have the authority as fact witnesses and colleagues to
affect the “possibility of discipline” is “not enough to show
supervisory status.” Jochims, 480 F.3d at 1170.
Allied next argues that unit members are supervisors
because they direct and are responsible for the performance of
hourly personnel. See Pet’r Br. at 38-39. Instead of
shouldering its burden to prove supervisory status, Allied
merely points to the paucity of evidence of nonsupervision.
See id. at 39. In fact, what relevant evidence there is fails to
show that unit members act as supervisors. For example,
General Manager Rory McCormack testified that unit members
are held accountable for employees’ work, but when pressed
for details he testified that a unit member would not be held
accountable for an employee’s mistake; rather the unit member
would be held accountable for failing to properly complete his
own paperwork. J.A. 166-67. Fueling Supervisor Louis
Fiorentino testified that, after a fueler mistakenly overfueled an
aircraft on Fiorentino’s watch, the fueler, not Fiorentino, was
written up because it was the fueler’s mistake. J.A. 363-64.
Fueling Supervisor Robert Muzikevicius and Maintenance
Supervisor Michael Fenton both testified about being written
up for their own, not others’, mistakes. J.A. 302, 650.
17
Against the backdrop of the Board’s decision that Fueling
Supervisors, Tank Farm Supervisors, and Maintenance
Supervisors are not statutory supervisors, and so lawfully
encompassed within the bargaining unit, Allied also challenges
the classification of the three Training Supervisors as statutory
supervisors excluded from that unit. We reject Allied’s
challenge in view of the ample evidence that Training
Supervisors are in a separate category from those other
“Supervisors” because the Training Supervisors “possess, at
the least, the authority to recommend that probationary
employees be retained for employment; that these
recommendations are routinely followed without independent
investigation by others and that such recommendations require
the use of independent judgment.” Recommended Decision on
Challenged Ballots at 16, 22-RC-077044 (Jan. 15, 2013), J.A.
1315.
Training Manager Frank Albanese’s testimony supports
the finding that Fuel Training Supervisors’ recommendations,
“without independent investigation by superiors,” determine
the fate of fueling trainers at Newark. DirecTV U.S., 357
N.L.R.B. 1747, 1749 (2011). The record showed that Albanese
places dispositive reliance on the advice of Training
Supervisors whether to terminate or retain trainees. J.A. 812-
13, 853. In the preceding five years, he “cut” six employees
from fueling jobs based solely on recommendations from
Training Supervisors without independently investigating the
merits of the suggestions. J.A. 1170-1172, 1185.
Not every Training Supervisor testified that he called for
termination in so many words, but that does not defeat the
Board’s finding. Training Supervisor Tommy Skvasik testified
that he did not make termination decisions. But Skvasik also
testified that Training Manager Albanese relied on Skvasik to
tell him whether an employee-in-training could adequately
18
perform the duties of a fueler, and that Albanese did not make
his own inquiry. J.A. 1212-13, 1222. Albanese corroborated
the point. See J.A. 1168, 1171. Training Supervisor Samuel
Harris testified that he never recommended that someone be
terminated and he never informed Albanese that a trainee was
unable to learn the fueling process. J.A. 1244. But Harris also
testified that he spent approximately ninety per cent of his time
recertifying employees already on the job. J.A. 1246. He was
therefore less likely to encounter trainees who had failed to
learn fueling techniques. Neither Skvasik nor Harris’s
testimony undermines Albanese’s account of Training
Supervisors’ authority over retention and firing decisions. See
Recommended Decision on Challenged Ballots at 15-16, J.A.
1314-15. “[I]n a given situation, the failure to exercise
supervisory authority may indicate only that circumstances
have not warranted such exercise.” Beverly Enters.-Mass., Inc.
v. NLRB, 165 F.3d 960, 963 (D.C. Cir. 1999).
Finally, Quintero testified that he, not Albanese, makes
final termination decisions, potentially undermining the claim
that Training Supervisors’ recommendations to Albanese are
determinative. J.A. 1290. But Quintero also testified to the
direct link between a Training Supervisor’s judgment that a
trainee was having issues and that trainee’s termination or
transfer to a different position:
[T]he training supervisor tells the training manager
[i.e. Albanese] the issues . . . . [T]he training manager
will then come to me, we’ll discuss it. . . . [W]e may
be able to put him in utility or in another area . . . . [I]f
he’s not able to be a fueler, for example, we might be
able to give him a job as [a] utility person . . . . If we
can’t do that, then I will sit down with the general
manager and we will discuss it.
19
J.A. 1289-90. The record shows that, no matter which higher-
up ultimately acts on it and makes specific reassignment
decisions, a Training Supervisor’s determination that a trainee
cannot perform the fueling functions leads either to
reassignment or termination.
During the post-election hearings on the Training
Supervisors’ status, the Union, as the party asserting
supervisory status, carried the burden of proof. Ky. River Cmty.
Care, Inc., 532 U.S. at 711-12. The Union met that burden by
showing a “direct link” between the Training Supervisor’s
assessment “and the Employer’s decision to retain, continue
training, transfer or discharge a probationary employee.” See
Recommended Decision on Challenged Ballots at 13, J.A.
1312. Substantial evidence thus supports the ALJ’s
conclusion, adopted by the Board, that the Training
Supervisors were statutory supervisors ineligible to participate
in the representation election for the Union.
***
For the foregoing reasons, we deny Allied’s petition for
review and grant the Board’s cross-application for
enforcement.
So ordered.