03/11/2024: SpaceX Claims It Is an Airliner. Excluded Worker Categories.

The Railway Labor Act makes an appearance.

The NLRB put out six documents today:

1. Space Exploration Technologies Corporation, 31-CA-307446 (Unpublished Board Decision). One of SpaceX’s defenses to the various unfair labor practice charges being brought against it is that it is regulated by the Railway Labor Act (RLA) not the National Labor Relations Act (NLRA). The RLA covers “common carriers by air” such as airlines and SpaceX is arguing that, because it is a space transportation company, it is technically a common carrier by air. In this unpublished decision, the Board rejected SpaceX’s motion to dismiss based on this theory but indicated that it would entertain it after the administrative law judge makes its decision.

2. Portland Patrol, Inc., 19-RC-331669 (Regional Election Decision). The regional director applied Boeing (1999) to conclude that the workers in question were “guards” under Section 9(b)(3) of the NLRA and therefore cannot be members of the Amalgamated Transit Union because the ATU has non-guards as members. The workers were deemed guards because, among other things, their duties include interacting with passengers to ensure a safe environment, monitoring premises for security concerns, wearing guard-type uniforms, making rounds in assigned areas, and undergoing training in security procedures. Despite not engaging in direct law enforcement or possessing weapons, their primary responsibilities of observing, reporting, and managing minor infractions align them with the statutory definition of guards.

3. NLRB’s Joint-Employer Rule Vacated by U.S. District Judge (National News). Late last year, the NLRB issued a rule stating that “two or more employers of the same particular employees are joint employers of those employees if the employers . . . possess the authority to control (whether directly, indirectly, or both), or to exercise the power to control (whether directly, indirectly, or both), one or more of the employees' essential terms and conditions of employment.” U.S. District Judge J. Campbell Barker of the Eastern District of Texas vacated this rule on the grounds that it “would treat virtually every entity that contracts for labor as a joint employer because virtually every contract for third-party labor has terms that impact, at least indirectly . . . essential terms and conditions of employment.”

4. Northeastern University, 01-RC-313126 (Unpublished Board). In its decision and direction of election (DDE), the regional director determined that Sergeant Mark Washington was not a supervisor and should not be excluded from the petitioned-for unit. The employer requested a review of this decision and the Board denied it. In a footnote, the Board cites Cook Inlet Tug (2015) and explains that an employer cannot prove that an individual “responsibly directs” subordinates by pointing to generalized statements about how that individual “could be in trouble” if an alleged subordinate performs poorly.

5. Skid Row Downtown Limited Liability Company, 02-RC-332821 (Regional Election Decision). The union filed a petition for a union election on December 11, 2023, withdrew it on December 29, 2023 and then refiled it on January 3, 2024. This allowed the union to get access to the new election process resulting from the NLRB’s recent rulemaking, which went into effect on December 26, 2023. The employer objected to this gamesmanship, but the regional director rejected the objection. There is a disagreement between the employer and the union over whether two of the employees in the petitioned-for unit are supervisors. The employer argues that this dispute should be litigated pre-election, but the regional director rejected this in favor of letting the two individuals cast challenged ballots and then litigating whether they are supervisors after the election.

6. United States Postal Service, 07-CA-300756 (Unpublished Board Decision). The General Counsel (GC) submitted a request for special permission to appeal an administrative law judge’s ruling not to allow an exhibit to be submitted as evidence. The Board rejected the request and indicated that it should instead be brought after the administrative law judge issues its decision in the case.

Several of the cases today deal with disputes related to what kinds of employees can be included in a bargaining unit or in a particular union. Unit definitions frequently feature boilerplate text that states that the unit excludes office clerical employees, supervisors, professional workers, and guards. You see this boilerplate even when no one in the business even meets that description.

There are reasons for this.

Office clerical employees are excluded because the Board has decided that they do not share the necessary community of interest with production-level employees to be included in a unit with them.

Supervisors are excluded because Section 14(a) of the NLRA states that “no employer subject to this Act shall be compelled to deem individuals defined herein as supervisors as employees for the purpose of any law, either national or local, relating to collective bargaining.” Contrary to common understanding, the NLRA does not actually forbid supervisors from being in bargaining units. If an employer and a union voluntarily agree to include them in a unit, then that is permitted. It is just that an employer cannot be compelled to include them and they virtually never want to.

Professional workers are excluded because Section 9(b)(1) of the NLRA states that the Board cannot “decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit.” As with the supervisors, it is not that professional employees are forbidden from being in a bargaining unit with non-professional employees. It’s just that it requires a special condition — in this case, that the majority of the professional employees vote to be included in it — that is difficult to satisfy.

Guards are excluded because Section 9(b)(3) of the NLRA states that “no labor organization shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or indirectly with an organization which admits to membership, employees other than guards.” This rule does not merely prohibit guards from being in bargaining units with non-guards. It actually prevents a union that has any non-guards as members to also have guards as members. Thus, in Portland Patrol, the problem is not that the Amalgamated Transit Unit is petitioning for a unit that includes guards and non-guards. It is that it is petitioning for a unit of guards despite the fact that the ATU also separately represents bus drivers and other kinds of occupations.

In addition to being kind of ridiculous, the rules governing office clerical workers, supervisors, professional workers, and guards create an endless stream of disputes about whether particular workers fall into one of these categories, which consumes agency resources, wastes time, and leads to uncertainty. We see this clearly today as half of the documents are about the administration of these exclusions.