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Case number 15-1321 at L, Allied Aviation Service Company of New Jersey Petitioner versus National Labor Relations Board.

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Mr. Lisi for the petitioner, Ms.

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Lin for the respondent, and Mr. Choon for the intervener.

[00:00:47] Speaker 04:
Good morning, Your Honors.

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May it please the Court.

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My name is Greg Leasey.

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I represent Allied Aviation Services Company of New Jersey.

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For the Court, I'd like to reserve two minutes for rebuttal, if I may.

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Your Honor, the first and foremost question in front of you today is whether or not the National Relations Board even had jurisdiction to handle this case.

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Allied Aviation of New Jersey works at Newark Airport in New Jersey.

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Its primary function is pumping fuel into airplanes.

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It also has, for the common carriers at Newark, in fact, more than 40 common carriers at Newark Airport.

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It further performs functions as ramp services and mechanics to deal with the fueling issues on these jets, Your Honor.

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While it's not an air carrier, it is certainly subject to the Railway Labor Act,

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because these airlines take their fuel very seriously.

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They keep a very close eye on this company.

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They have multiple

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committees that oversee this, including their budget, including their training, including weekly audits.

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These are a lot of facts that you're referring to, and I gather these are very sort of juicy, fact-intensive questions.

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But you did not at the outset of this case, when you were first

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Whoever was representing the Allied at that time was first asked whether this is a real labor act case, said, well, I don't know.

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I'd have to look into that.

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And then, as I understand it, years passed.

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And the administrative officials, whose role it is to find facts, have processed this case in a couple of different settings.

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never asked to make these kind of findings.

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I know you did raise it before the board just much more recently, but it's a little difficult to say that you can

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ride along, see how things are working out, and then turn around when they're not working in your favor and say, actually, let's go to the natural mediation board.

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I understand exactly what you're saying, Your Honor.

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As you pointed out, I was not the attorney at the time, nor was my firm.

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However, this is a jurisdictional issue, Your Honor, and the Supreme Court has said

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multiple times, as has the board held, that the jurisdictional argument is not waived.

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If the board itself does not have jurisdiction to rule in this, even if it is brought up later in time, the issue is still whether or not the board has such jurisdiction.

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As I understand our presidents, that this is something that can be waived.

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Well, Judge, in our briefing at page 20, we list a whole series of cases that say that the contention that Congress explicitly excluded from the act's coverage surely is the type of jurisdictional challenge that the board agrees can never be waived.

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So I do believe that Your Honor should take that into consideration here.

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As the Court has found and the Board itself has found before, if the Board lacks statutory jurisdiction over a particular respondent, the respondent's failure to raise the issue does not waive it.

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uh... and that's why eventually your honor you are correct we did ultimately waive it to the two thousand uh... thirteen in two thousand i believe it was two thousand fifteen board your honor you didn't ultimately raise it well we did your honor we put it in our in our in our brief in our exceptions to which went to the two thousand fifteen board they didn't address it uh... and that's one of our contentions here your honor uh... that's what the board did address it uh...

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The first two boards did not address it, Judge.

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I'm sorry, the 2015 board ultimately did address it, but the 2012 board and the 2013 board did not address it, Your Honor.

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But you hadn't been raising it at those times.

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No, however, the regional director at the time had brought it up.

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It was never addressed.

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And then we brought it up in our exceptions that went to the 2015 board.

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The 2015 board found that the board did have jurisdiction over it because it had a, essentially, to backtrack one quick second, there's a two-part test as to whether or not the National Labor Relations Board has jurisdiction over this company, Your Honor.

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The first part, I think everybody is in agreement that

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uh... the uh... the first time your honors is

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whether or not fueling these planes is traditionally a duty of the airlines themselves or the common carrier.

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I think everybody is in agreement that that is true.

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In fact, there have been multiple board cases that have found that in the past, specifically to allies' competitors, when they found that they did not have jurisdiction over allies' competitors.

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Aircraft services, international mercury refueling, and the like.

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The second part of the test though, Your Honor, which the 2015 board did discuss, was supposed to have six factors as to the control over this company by the common carriers.

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The 2015 board only looked at one of the six factors.

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So here's a question, and this is sort of slicing and dicing interstitial question a little bit.

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If it's your burden to show that this should not be before the NLRB, but before the NMB, and you have failed to press for the fact-finding that would support such a determination, then aren't we just stuck with the record that we have, and we can say, well, maybe in some platonic sense, you might be right, but on the record as we see it now, this is not a Railway Labor Act employer.

[00:07:05] Speaker 04:
Well, I think that there's two answers to that question, or two parts to that answer, Judge.

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First is what we've already discussed, which is that jurisdictionally, it never gets waived.

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But secondly... Well, the jurisdiction is a legal issue, but that's why I'm saying I'm sort of slicing it a little bit, slicing the bologna here and saying, well...

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your opportunity to seek fact-finding that would support that, you can't go back and get that now.

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So you have to live with what the record shows.

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I'm sorry, Your Honor.

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Yes, I agree that what the record before you needs to be the record that looks at.

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However, this record actually is replete with examples that show that the NLRB does not have jurisdiction.

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For example, at JA 1065,

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The board found that each airline and each type of aircraft has its own procedure for fueling.

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It talks about that there's a fuel committee at JA-71 that oversees Allied's operation.

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It talks about that the carriers must approve all staffing changes at JA-71.

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How about the fact that

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that your client isn't even in a contract with the carriers, but actually in a contract with the board authority.

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I saw that they raised that, Your Honor.

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I'm not sure that that matters.

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I think the key is, do the common carriers have control over allies' operations?

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And it is clear from the record, and the record that is in front of you, that Allied's books are regularly approved, their budget is regularly approved, not by the Port Authority, although the Port Authority does have some say, but specifically by the carriers.

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The carriers provide the training, Your Honor, it's in the record.

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They train for all the employees?

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No, they train the trainers, Your Honor, which is very interesting.

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So they train the trainers who are allied employees, who are these very supervisors we're talking about, and then those supervisors train the employees who are already in a union, Your Honor, the IAM.

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But what is interesting is that when the FAA, who ultimately has government authority over this, go to the carriers and say, who are your trainers?

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They point to these very same allied supervisors.

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They hold out allied supervisors as their own trainers to the FAA.

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I thought you were arguing, why are we looking at, why do you want us to make these kinds of decisions when the NLRB, under your approach, didn't do the analysis appropriately?

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I think that's exactly why, Your Honor, because the NLRV did not do the analysis appropriately.

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But why would we send it back to have the approach done appropriately rather than us doing it in the first instance?

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Oh, Your Honor, I think you could do this in the first instance.

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I think you could make this determination.

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I think you could order this to be sent to the National Mediation Board, or I think you could send it back to the NLRB to ultimately do the proper analysis.

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There's two problems with multiple prongs of the appeal here, Your Honor.

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But the major problem is they did not do the proper analysis.

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In all the different types of the arguments here, they didn't do the proper analysis.

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For example, when they made the argument, or we made the argument, that the board lacked constitutional authority,

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because Noel Canning, the original 2012 board under Noel Canning did not... Before you go to Noel Canning, so if we stick with the NMB issue for a moment.

[00:10:28] Speaker 06:
Yes, yes.

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So the argument that you made in your brief is that, look, what the NLRB slash NMB used to do is look at six factors.

[00:10:36] Speaker 06:
Yes.

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What they're doing now is they've truncated it to one factor that has to do with personnel decisions.

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Correct.

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Right.

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Now what the board says, I think, in response is,

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You preserved a jurisdictional objection in that you argued that we misapplied our six factor test.

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But insofar as you're arguing that that six factor test has collapsed into a one factor test, you didn't preserve that.

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before the board.

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That's how I read their brief.

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What's your response to that?

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I disagree, Your Honor.

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I believe that the board made such a ruling and we appealed that ruling.

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The board did not properly rule using the proper six-factor test.

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It only looked at the one factor.

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When it only looked at the one factor, we appealed the issue.

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They made the argument that we should make a motion to re-argue, but there's nothing to reconsider.

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A motion to reconsider.

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But there's nothing to, per se, judge, reconsider.

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The facts in the record were the facts in the record.

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There weren't new facts here.

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The National Labor Relations Board misapplied the law.

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The standard was the six-part test.

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The standard is the six-part test because of this very case.

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They're relying on cases that concern people who push a broom or push a vacuum cleaner.

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Here, these are the people who are fueling the jets, the things most important to the airlines.

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They keep a very, very close eye.

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It is why the other five factors exist, Your Honor.

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The one factor about control of the personnel might be important for somebody who's cleaning the terminal.

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But it should only be a factor here when we're dealing with the people who are actually working on the planes, that if this work doesn't occur properly, not only the planes possibly fall out of the sky, but the airlines themselves would get sued.

[00:12:20] Speaker 06:
So you don't disagree that if the one factor that they looked at is the right factor, that you lose?

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I don't think that's the right factor, Your Honor.

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If you're saying that the NMB has changed the factors from a six-factor test to a one-factor test, which they've started to seem to do, then I think the NMB has to tell us why it's doing it.

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Anywhere in any of the decisions since 2011, why it changed that?

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Now whether or not, and I know that's not part of this per se appeal, whether or not they need public comment or anything else like that, I don't know.

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But the NMB seems to have begun harping on this one of the six factors.

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Now what's interesting is those other

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cases that we're talking about, bags and airway cleaners and the like, they don't ignore the six-factor test.

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They talk about the six-factor test.

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Here in this case against Allied, the 2015 board ignores the six-factor test and only talks about the one-factor test.

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Had they taken the full six-factor test, they would have seen all of these things like daily audits and the like.

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I see I'm out of time, Your Honor.

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If you have any other questions about the other three aspects of the appeal, I'm certainly happy to do it.

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Okay, thank you.

[00:13:55] Speaker 02:
Good morning.

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In this case, the board

[00:14:00] Speaker 02:
did address the argument that was made about jurisdiction and the Railway Labor Act.

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So although the argument was raised late enough that, as has already been discussed this morning, there were not facts in the record related to this issue.

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There may be facts that came out in litigating the supervisory issue,

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that have some relevance, and the board tried to look at those facts.

[00:14:28] Speaker 06:
But as to the question that they raised about the application of the six-factor test, which was a jurisdictional challenge which said this case belongs before the NMB instead of the NLRB, are you raising the waiver argument?

[00:14:42] Speaker 02:
We are not saying that they waived the jurisdictional issue.

[00:14:45] Speaker 06:
You're not saying that they waived it.

[00:14:47] Speaker 02:
The jurisdictional question.

[00:14:48] Speaker 06:
So you're pointing out that they raised it late, but you're not saying the late raising is a wafer?

[00:14:53] Speaker 02:
Correct.

[00:14:54] Speaker 06:
Okay.

[00:14:54] Speaker 06:
Correct.

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And why are you not saying it's waived?

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Because are they right that it's a statutory question for you and that the board has bound itself to resolve statutory questions at any stage?

[00:15:05] Speaker 02:
The board has found that it has to resolve these jurisdictional issues when it has been raised at any stage.

[00:15:12] Speaker 02:
And in their brief,

[00:15:14] Speaker 02:
actually they cite cases where this court has found similar, not on the NMB issue in particular, but on other jurisdictional issues.

[00:15:22] Speaker 06:
So then what were you saying in your brief, if you're not saying that there's a waiver of the jurisdictional argument, what were you saying in your brief when you said they needed to file a motion to reconsider?

[00:15:30] Speaker 02:
So the jurisdictional issue was raised and the board addressed it and made a ruling saying we have jurisdiction under the, you know, our reading of the NMB's cases.

[00:15:42] Speaker 02:
After that happened, in their brief to this court, Allied is making the argument that the board is wrong about what the NMB has said, saying, I believe they make a statement that the board misstated the NMB standard, or the board said there was a new heightened standard that there actually is not.

[00:16:00] Speaker 05:
Well, I think you're saying that the NMB is applying a new standard, and you're going along with it, and that both of you have to justify it, and that neither of you have.

[00:16:12] Speaker 02:
don't think that we've read their argument that way.

[00:16:16] Speaker 02:
But I would say, whether they're saying the board got the NMB standard wrong or the NMB standard is wrong or both, still at this point, once the board has made a ruling based on their argument that there's no jurisdiction because there's RLA jurisdiction, the allied never came back to the board to say, wait, we raised this issue and you didn't apply the correct test.

[00:16:41] Speaker 02:
or you didn't look at the correct facts in the record.

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Never came back to the board to say that the board missed something or got something wrong.

[00:16:51] Speaker 06:
And that's something- So they raised the jurisdictional objection, which is the same objection they're saying they're raising now, but they didn't raise a particular sub-aspect of it?

[00:16:59] Speaker 06:
So is that how finally we slice it then?

[00:17:02] Speaker 06:
There's some particular argument about how they style it.

[00:17:05] Speaker 06:
They said, you have six factors, you have to apply six factors.

[00:17:07] Speaker 06:
And now they're saying, instead of applying all six factors, you applied one.

[00:17:11] Speaker 06:
Your argument is, you only told us we had to apply all six factors.

[00:17:14] Speaker 06:
You didn't tell us that when we didn't apply all six and we only applied one that we were wrong to do that.

[00:17:26] Speaker 02:
When the board applied the board's reading of the NMB's precedent and said, this is how we read these recent cases, this is what the NMB is focused on in citing the recent cases, the ally did not come back to the board to say, you read those cases wrong, which is what we read their brief to have said to this court.

[00:17:52] Speaker 05:
I think the focus on the one factor isn't a shift from the focus on the six factors.

[00:17:57] Speaker 05:
I'm trying to understand.

[00:17:59] Speaker 02:
So in terms of the test, in this case, in their argument to the board, Ally didn't go through the six factor test itself and say, we have facts in the record to support all of these six factors.

[00:18:14] Speaker 02:
That wasn't the way that they presented their argument to the board.

[00:18:17] Speaker 02:
In response to the general argument based on some

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facts in the record that there should be NMB jurisdiction here, the board looked at what was in the record, which was just not much.

[00:18:33] Speaker 02:
And the board said, OK, looking at what's in the record that could go to any factor under the test, the board said in recent cases, the NMB has focused on this idea of meaningful control of our personnel decisions

[00:18:46] Speaker 02:
has focused on whether this is typical of a contract for services and went through and looked in this record and found nothing to support that.

[00:18:54] Speaker 06:
But in terms of what they did argue, at J 1388 to 1389, which is where they raised this issue, they recite the six factors.

[00:19:01] Speaker 02:
They do recite the factors.

[00:19:02] Speaker 06:
And then they go into the evidence.

[00:19:04] Speaker 02:
They talk about two aspects of the evidence.

[00:19:07] Speaker 06:
Yeah, so they talk about the evidence.

[00:19:10] Speaker 06:
I agree with you, they don't go methodically through all six factors and say, here's the evidence as to each.

[00:19:15] Speaker 06:
But they list the six factors and they talk about how the evidence in the record supports them under those factors.

[00:19:21] Speaker 06:
At least under some of them.

[00:19:22] Speaker 02:
Well, under something.

[00:19:23] Speaker 02:
I mean, there is a recitation of the factors.

[00:19:25] Speaker 02:
And then there is a discussion of some facts in the record.

[00:19:28] Speaker 02:
I'm not sure that it goes back to the factors.

[00:19:30] Speaker 05:
And are you satisfied that the board has given the full response to any and all factors that it would give?

[00:19:37] Speaker 05:
If they haven't claimed that the shift from the 6 to 1 was arbitrary and capricious, but if they had, and if we were to so hold that it needs justification, would you say, well, fine, just look at the 6, what we've done holds up under that, or no?

[00:19:56] Speaker 02:
Okay, let me walk back through that.

[00:19:59] Speaker 02:
Right.

[00:19:59] Speaker 02:
So there's no claim here that any shift that has occurred in NNB law was arbitrary and comprehensive.

[00:20:05] Speaker 05:
In other words, they haven't really made the claim, but they sort of have.

[00:20:09] Speaker 05:
And if we were to go there, I mean, we're supposed to be deferring to the board.

[00:20:13] Speaker 05:
But if we thought that the right tests were, or at least no other tests had been fully justified, and that therefore the six factor test is the test, we don't have something that you've done that the board has done to defer to, do we?

[00:20:27] Speaker 02:
The board did not, in this case, recite the six factors or analyze each factor.

[00:20:33] Speaker 02:
The board did look at and be precedent and look at how that guides a decision in this case based on there not being meaningful control.

[00:20:45] Speaker 02:
And another thing here is that if you look at the other six factors and you look at the record in this case, there's really nothing for the board to talk about.

[00:20:54] Speaker 02:
There isn't evidence based on

[00:20:56] Speaker 02:
these other factors that was presented for the board to analyze or discuss.

[00:21:00] Speaker 02:
There weren't fact findings made because that hadn't previously been raised.

[00:21:05] Speaker 05:
And that you do think they waived the opportunity to have further fact finding?

[00:21:08] Speaker 02:
Yes, Your Honor.

[00:21:10] Speaker 05:
Even though this is a jurisdictional question.

[00:21:12] Speaker 02:
As far as I'm aware, they have not made any requests to reopen the record.

[00:21:16] Speaker 05:
So just looking at what facts there are, one thing about the way the case is briefed is a little baffling to me, is that statute talks about whether the allied here is an employer subject to the RLA.

[00:21:31] Speaker 05:
And a lot of briefing talks about whether these employees and the relationship between the carrier

[00:21:35] Speaker 05:
And this subgroup of employees somehow meets the test, but it's the whole employer, right?

[00:21:41] Speaker 02:
It is the entire employer.

[00:21:43] Speaker 02:
It goes to whether the employer is under the indirect control of a carrier or carriers.

[00:21:51] Speaker 06:
On this question of fact-finding, is it the board's view that in this kind of circumstance, if somebody asked to reopen the record because they noted the jurisdictional issue late, and they said, look, I know we're noting it late, we're pressing it late, but under the board's precedence, the board has to resolve it, we suggest that at this point there be a reopening of the record for the fact-finding.

[00:22:14] Speaker 06:
Does the board have a rule that says, no, you can't do that?

[00:22:17] Speaker 02:
I'm not aware of any rule that says the court can do that, and I'm not aware of any case where that type of request has been made and acted on.

[00:22:25] Speaker 05:
Of course, this isn't that case, because at the very get-go, was it the regional director who said, hey, shouldn't this be under our ally?

[00:22:33] Speaker 02:
Yes, that's right.

[00:22:34] Speaker 02:
The hearing officer in the original hearing in this case before the election had asked the general manager of allied at the airport

[00:22:45] Speaker 02:
whether they were under the control of a carrier for RLA purposes, and he said, not that I know of.

[00:22:50] Speaker 02:
I would have to look into it.

[00:22:51] Speaker 02:
And it had never been discussed again after that.

[00:22:59] Speaker 02:
Another issue here, just to say another, in terms of the board applying the NMB's cases, these are cases, Vansies, bags, airway cleaners,

[00:23:10] Speaker 02:
where the board had sought the NMB's position as to certain employers and had gotten response back from the NMB that the NMB didn't have jurisdiction.

[00:23:19] Speaker 02:
So in this case, there was no request to refer to the NMB.

[00:23:26] Speaker 02:
And we would say that to the extent the court is looking here at the board order under review, there was no request for a referral.

[00:23:34] Speaker 02:
So there was never any request that the NMB look at this case rather than the board.

[00:23:41] Speaker 02:
One other thing, and I thought of this when we were talking about a potential motion to reopen the record, in their reply brief, Allied states, in terms of dealing with the Noel Canning or quorum issue, that another problem with the boards, the invalid board decision to deny the request for review is that they didn't have the opportunity to reopen the record, to put it on evidence regarding whether these employees should be in the machinist unit,

[00:24:07] Speaker 02:
And I just wanted to point out because this was in a reply brief only that they never made any type of request to reopen the record or present that type of evidence.

[00:24:18] Speaker 02:
And therefore we don't think that there is any problem with the quorum issue because the full board or a fully confirmed panel of the board considered and rejected the arguments that were made in 2012.

[00:24:31] Speaker 02:
In terms of the supervisory issue,

[00:24:37] Speaker 02:
Allied had the burden here to show that these employees were statutory supervisors and as we discuss in our brief and as the regional director discussed at length in the decision and direction of election, that burden was not met.

[00:24:50] Speaker 02:
I'm happy to answer any questions about that if you have any.

[00:24:55] Speaker 02:
Thank you.

[00:24:55] Speaker 02:
Thank you very much.

[00:25:03] Speaker 03:
Good morning.

[00:25:04] Speaker 03:
May I please the court to Jay Chun on behalf of local 553 International Brotherhood Teamsters.

[00:25:09] Speaker 03:
Allied Aviation and its employees cannot be subject to the Redwood Labor Act.

[00:25:15] Speaker 03:
Because as Your Honor pointed out, the facts on the record shows clearly that Allied Aviation has contract with only the Port Authority, the New York, New Jersey Port Authority, and not with any airline carrier.

[00:25:29] Speaker 03:
That's different from any other cases cited by the petitioner.

[00:25:33] Speaker 03:
As per this contract with the Port Authority, Allied Aviation maintains and operates

[00:25:39] Speaker 03:
Port Authority's pipelines, Port Authority's tank farm, Port Authority's hydrants, and Port Authority's trucks, as per its agreement.

[00:25:47] Speaker 03:
in a 2005 case Bombardier Transit, the National Mediation Board specifically struck down the idea that a company can be subject to the Railroad Labor Act based on some relationship with the New York, New Jersey Port Authority.

[00:26:03] Speaker 03:
The reason being, the Port Authority is itself not a carrier as that term is defined in the Railroad Labor Act.

[00:26:10] Speaker 05:
But Mr. Chun, could an entity be under contract with

[00:26:16] Speaker 05:
something like the Port Authority as a way of facilitating a relationship with what are many, many carriers, and sometimes carriers that come and go, just more stability and more kind of efficiency to contract with the Port Authority, but really take all control and direction from the carriers.

[00:26:33] Speaker 05:
And the Port Authority's role there, too, is to serve the carriers.

[00:26:38] Speaker 05:
So it could be, couldn't it at least theoretically be set up in a way that the Port Authority is really

[00:26:44] Speaker 05:
kind of almost like a layer association to facilitate actual control?

[00:26:51] Speaker 03:
Actually, theoretically, it could.

[00:26:52] Speaker 03:
The record has no evidence indicating what the contract says between Allied Aviation and Port Authority, which gives any kind of control to the airline carriers.

[00:27:05] Speaker 03:
However, theoretically, if that were in the record and the record clearly said that an airline carrier does have meaningful control over allied aviation and allied aviation would be punished or suffer some consequence,

[00:27:22] Speaker 03:
That would be a yes, but that is not in the record.

[00:27:25] Speaker 05:
Are the contracts typically in the record in these cases?

[00:27:27] Speaker 03:
In all cases.

[00:27:28] Speaker 03:
In every single case cited by the petitioner, used by us as well, except for Bombardier Trans, in which I pointed out,

[00:27:37] Speaker 03:
deals with two components.

[00:27:39] Speaker 03:
Number one, is there a contract between a company and a carrier?

[00:27:44] Speaker 03:
Number two, if so, the analysis is, does the contract give meaningful control to that company?

[00:27:52] Speaker 03:
That element is missing in this case.

[00:27:54] Speaker 05:
We can't look at the contract.

[00:27:55] Speaker 05:
Either the contract between Allied and the Port Authority and or the contract between the Port Authority and the carriers.

[00:28:04] Speaker 03:
We don't have either of those things in this record.

[00:28:05] Speaker 03:
We do not have those in the record.

[00:28:11] Speaker 03:
I do want to – with the remaining time, I do want to point out – I'm sorry.

[00:28:16] Speaker 03:
I actually don't have – I mean, I did want to correct a couple of things.

[00:28:20] Speaker 03:
The case – the board case actually does reference the six steps, and it also says, according to the NMB's decisions in the post-2011 cases,

[00:28:33] Speaker 03:
there's insufficient record to show that Allied Aviation is a derivative carrier, but it also says, even if we use the dissent argument in MENCES, and the dissent argument, member Geo, G-E-A-L-E, specifically applies to six steps, and the board references that dissent and says, even under that old standard, Allied Aviation does not have

[00:29:02] Speaker 03:
the sufficient I guess I'm sorry, no airline carrier would have any meaningful control over out of aviation.

[00:29:09] Speaker 05:
Do you have a page for that, just for my convenience?

[00:29:12] Speaker 03:
It is a two page decision, I don't have it here.

[00:29:16] Speaker 05:
Right in there.

[00:29:18] Speaker 03:
Thank you, Your Honor.

[00:29:20] Speaker 01:
Thank you.

[00:29:24] Speaker 01:
Okay.

[00:29:25] Speaker 01:
You did not have any time left, but we'll give you one minute.

[00:29:30] Speaker 04:
Thank you, Your Honor.

[00:29:30] Speaker 04:
I appreciate it.

[00:29:31] Speaker 04:
Let me just address two very quick things.

[00:29:35] Speaker 04:
Judge Pollard made, I thought, a very important point, what the standard of review here is.

[00:29:42] Speaker 04:
She was asking about arbitrary and capricious.

[00:29:43] Speaker 04:
I believe that that is for this portion of the discussion about applying the one prong instead of the six.

[00:29:51] Speaker 04:
The standard of review is arbitrary and capricious.

[00:29:54] Speaker 04:
And you could look at your decision in Mojave Electric Co-op versus the NLRB.

[00:30:00] Speaker 04:
So I believe that is, in fact, the standard of review when you're looking at that.

[00:30:04] Speaker 04:
Secondly, just very quickly on the contracts, it doesn't say that the contracts are important.

[00:30:09] Speaker 04:
What it says is the control of the common carriers of allies.

[00:30:14] Speaker 04:
That's what's important.

[00:30:15] Speaker 04:
And I'll just leave you with a quote from the record.

[00:30:18] Speaker 04:
It's at JA 1163.

[00:30:21] Speaker 04:
When a supervisor was being – was testifying, he said, I work for Ally, but in turn I really work for all the 60 airlines also.

[00:30:29] Speaker 04:
That's very important, Your Honors, because it shows in the record that the airlines had control of this.

[00:30:36] Speaker 04:
The airlines had control, and I can point to – I can cite to all the different spots, but it's in there.

[00:30:42] Speaker 04:
that the airlines had weekly audits, they had yearly reviews, they had committees of the airlines that met and the individual airlines met because the individual airlines had their own procedures on fueling that

[00:30:59] Speaker 04:
Each employee of Allied had to be certified before they can do a specific airline.

[00:31:05] Speaker 04:
It wasn't like pushing a vacuum where you could clean any terminal.

[00:31:09] Speaker 04:
If you were United, you had to be certified by United.

[00:31:12] Speaker 04:
If you were American, you had to be certified by American.

[00:31:17] Speaker 04:
Carriers were very careful here, as well they should be.

[00:31:21] Speaker 04:
And that is why the RLA really applies here and not the NLR.

[00:31:25] Speaker 04:
Thank you, Your Honor.

[00:31:26] Speaker 01:
Thank you, Mr. Lacey.

[00:31:27] Speaker 01:
Case will be submitted.