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

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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

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“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

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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)-

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(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

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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

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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

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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.

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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.

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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

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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.