Many of you will get on a plane to visit family for Thanksgiving. When you do, you’ll likely encounter agents to help you board the plane, flight attendants to keep you safe and serve you drinks, and pilots to fly you from here to there while ensuring your safety. Those workers all work for airlines. 

You may not notice the many, less-visible workers who made your trip possible. The caterers who prepare the food and drinks for your flight; the cabin cleaners who tidy quickly between flights; the de-icers who melt snow on runways; the fuelers who put jet fuel into planes; the tank operators who get fuel off pipelines or barges and distribute it throughout the airport; the cargo handlers who store and distribute packages with your holiday decorations; the wheelchair attendants who assist passengers needing a ride through long airport corridors; and countless others who work in airport shadows—too often for poverty-level wages and benefits.

Decades ago, many of those workers would have worked for airlines themselves. But since deregulation in the 1970’s, airlines have outsourced that work to a variety of service providers, such as Menzies, Gate Gourmet, G2, Swissport, FSM, and others. By some estimates, this is a $200 billion industry likely to more-than-double in size in the coming decade. While workforce estimates are harder to come by, the industry likely employs hundreds of thousands. Menzies alone, for example, employs 45,000 people.

Until the NMB’s exemplary decision this month in Swissport Cargo Services, 52 NMB 25 (2024), those airline service workers were subject to incoherent jurisdictional rules that left them, for practical purposes, unable to organize or strike. That’s because whenever these workers tried to organize through the NLRB, their employers would typically claim that the Railway Labor Act (RLA) covered them. 

Why did they do this? The NMB has long required RLA-covered employees to organize in nationwide bargaining units or, crafts-or-classes, in RLA parlance. See, e.g., G2 Secure Staff, 48 NMB 3, 10 (2020); Pennsylvania R.R. Co., 1 NMB 23, 24 (1937). That policy makes sense for pilots or flight attendants, who fly with their colleagues nationwide. It makes much less sense for fuelers or cabin cleaners at, say, O’Hare who may never have occasion to meet or work with colleagues from other airports. 

In practice, exercising RLA jurisdiction over these service providers made it impossible for their employees to organize. At the same time, the RLA’s notoriously stingy right to strike—explosive when it occurs but so long delayed that it rarely does—left these workers unable to organize or meaningfully use the economic pressure of withholding their work. 

A key question, then, was when the RLA covered airline service providers and their employees. The statute itself provides a simple answer. Under Section 201, the RLA applies to every “common carrier by air”—i.e., airline—and “every air pilot or other person who performs work as an employee or subordinate official of such carrier or carriers, subject to its or their continuing authority to supervise and direct the manner of rendition of his service.” 45 U.S.C. § 181.

In other words, the RLA covers airlines and their direct employees, as long as airline managers have the continuing authority to supervise those employees and how they work. Because service providers are not airlines (they do not fly passengers or cargo through the air) and their employees don’t work for airlines and aren’t under airline managers’ continuing supervision, the RLA shouldn’t apply to them. Instead, the NLRA should. 29 U.S.C. §§ 152(2)–(3) (NLRA covers private-sector employers and employees, unless covered by the RLA).

Yet, for decades, the National Mediation Board (NMB) applied a two-part text untethered to the statute. This test asked, first, whether the employee performed work traditionally done by railroads or airlines. It then asked whether an airline controlled the service provider. The factors that determined the requisite control varied over time. Recently, the NMB typically looked to (1) the extent of an airline’s control over how the service provider conducts its business; (2) the airlines access to the company’s operations and records; (3) the airlines role in the company’s personnel decisions; (4) the degree of airline supervision of the company’s employees; (5) whether company employees are held out to the public as airline employees; and (6) the extent of the airline’s control over employee training. 

The factors were pure invention without statutory basis. Worse, the NMB applied them to similar facts with wildly inconsistent results. From 1991 through 1999, it found the overwhelming majority of providers not subject to the RLA. From 2000 through 2011, applying purportedly the same test, the NMB found the overwhelming majority of providers subject to the RLA on seemingly similar facts. The NMB then issued seven decisions from 2012–2014 purporting to apply the six-factor test to seemingly similar facts but finding no RLA jurisdiction in any of them. Since then, until Swissport Cargo, the NMB again applied the same factors test to uniformly find RLA jurisdiction in all dozen cases it considered. 

These ping-ponging outcomes cannot be explained as political whipsawing between changing administrations, as is sometimes suspected of other agencies. The political calendar refutes such a charge. Instead, it was pure incoherence.

The NMB rightly set aside this nonsense in Swissport Cargo and returned to the statute and its early, well-reasoned interpretations. The Board began, as any legal interpreter should, with the words of the statute. Reading Section 201, it found its words “clear and unambiguous”: Congress limited the RLA’s application in the airline industry to “common carriers by air” and those individuals who perform work “as an employee or subordinate official for that carrier or carriers.” Swissport Cargo, 52 NMB at 30. And then, only if an airline official supervises the employee. Id. This statutory language, the NMB rightly held, “simply cannot be read to extend the RLA’s jurisdiction to independent contractors that contract to provide services with an air carrier.” Id.

The NMB buttressed this statutory analysis with an examination of the legislative history, which showed that when Congress amended the RLA in 1934—two years before extending it to airlines—it covered certain railroad subsidiaries while excluding independent contractors engaged by railroads. Id. at 32–34. 

The NMB’s early decisions correctly recognized this distinction between railroad subsidiaries (covered by the 1934 amendments) and independent contractors (who were not). Id. at 34. Since the 1980’s, though, the Board lost its way in looking to the 1934 amendments as a basis for covering not only independent contractors in the railroad industry but also those in the airline industry. 

Rejecting these errors, the NMB has finally brought airport service employees out of the shadows and into the jurisdictional light where they once again have the organizing and bargaining rights Congress gave them long ago. Textualism and the NMB’s belated, but welcomed, embrace of a coherent jurisprudence, has given these workers the chance to organize themselves out of poverty and into well-paying union jobs.