821 F.3d 489 (4th Cir. 2016), 14-2222, Nestle Dreyer's Ice Cream Co. v. National Labor Relations Board

Docket Nº:14-2222, 14-2339
Citation:821 F.3d 489
Opinion Judge:DIAZ, Circuit Judge
Party Name:NESTLE DREYER'S ICE CREAM COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 501, AFL-CIO, Intervenor. NATIONAL ASSOCIATION OF MANUFACTURERS; RETAIL LITIGATION CENTER, INC.; THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; COALITION FOR A DEMOCRATIC WORKPLACE; INTERNA...
Attorney:Bernard J. Bobber, FOLEY & LARDNER LLP, Milwaukee, Wisconsin, for Petitioner/Cross-Respondent. Gregory P. Lauro, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. Matthew James Ginsburg, AFL-CIO, Washington, D.C., for Intervenor. Ryan N. Parsons, FOLEY & LARDNER L...
Judge Panel:Before SHEDD, DIAZ, and HARRIS, Circuit Judges. Judge Diaz wrote the opinion, in which Judge Shedd and Judge Harris joined.
Case Date:April 26, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 489

821 F.3d 489 (4th Cir. 2016)

NESTLE DREYER'S ICE CREAM COMPANY, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent,

and

INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 501, AFL-CIO, Intervenor.

NATIONAL ASSOCIATION OF MANUFACTURERS; RETAIL LITIGATION CENTER, INC.; THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; COALITION FOR A DEMOCRATIC WORKPLACE; INTERNATIONAL FOODSERVICE DISTRIBUTORS ASSOCIATION; NATIONAL ASSOCIATION OF WHOLESALER-DISTRIBUTORS; NATIONAL COUNCIL OF CHAIN RESTAURANTS; NATIONAL FEDERATION OF INDEPENDENT BUSINESS; NATIONAL RETAIL FEDERATION; SOCIETY FOR HUMAN RESOURCE MANAGEMENT, Amicus Curiae.

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

NESTLE DREYER'S ICE CREAM COMPANY, Respondent

Nos. 14-2222, 14-2339

United States Court of Appeals, Fourth Circuit

April 26, 2016

Argued October 28, 2015

Page 490

[Copyrighted Material Omitted]

Page 491

On Petition for Review of an Order of the National Labor Relations Board. (31-CA-74297).

ARGUED:

Bernard J. Bobber, FOLEY & LARDNER LLP, Milwaukee, Wisconsin, for Petitioner/Cross-Respondent.

Gregory P. Lauro, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.

Matthew James Ginsburg, AFL-CIO, Washington, D.C., for Intervenor.

ON BRIEF:

Ryan N. Parsons, FOLEY & LARDNER LLP, Milwaukee, Wisconsin, for Petitioner/Cross-Respondent.

Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Jill A. Griffin, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.

Brian A. Powers, James B. Coppess, Washington, D.C., for Intervenor.

Bernard P. Jeweler, Christopher R. Coxson, Harold P. Coxson, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Washington, D.C.; Linda E. Kelly, Patrick N. Forrest, MANUFACTURERS' CENTER FOR LEGAL ACTION, Washington, D.C., for Amicus The National Association of Manufacturers.

Deborah White, RETAIL LITIGATION CENTER, INC., Arlington, Virginia; Jason C. Schwartz, Thomas M. Johnson, Jr., Alexander K. Cox, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Amicus Retail Litigation Center, Inc.

Mark Theodore, Los Angeles, California, Ronald Meisburg, Joshua F. Alloy, PROSKAUER ROSE, LLP, Washington, D.C.; Kate Comerford Todd, Steven P. Lehotsky, U.S. CHAMBER LITIGATION CENTER, INC., Washington, D.C., for Amici Coalition for a Democratic Workplace, International Foodservice Distributors Association, National Association of Wholesaler-Distributors, National Council of Chain Restaurants, National Federation of Independent Business, National Retail Federation, Society for Human Resource Management, and The Chamber of Commerce of the United States.

Before SHEDD, DIAZ, and HARRIS, Circuit Judges. Judge Diaz wrote the opinion, in which Judge Shedd and Judge Harris joined.

OPINION

Page 492

DIAZ, Circuit Judge

The National Labor Relations Board certified a collective-bargaining unit consisting of all maintenance employees at an ice-cream production facility operated by Nestle-Dreyer's Grand Ice Cream, Inc. Dreyer's contends that (1) the Board applied a legal standard that violated the National Labor Relations Act (the " NLRA" ) and otherwise represented an abuse of discretion; and (2) under the proper legal standard as well as the incorrect legal standard upon which the Board relied, production employees must be included in the petitioned-for unit. Because the Board did not violate the NLRA or

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abuse its discretion in certifying the maintenance-only unit, we deny Dreyer's petition for review and grant the Board's cross-petition for enforcement of its order.

I.

A.

At a production facility in Bakersfield, California,[1] Dreyer's manufactures ice-cream products: cartons, cones, bars, and other frozen novelties. Known as the Bakersfield Operations Center (the " BOC" ), the facility contains a factory with twenty-six production lines, a palletizing area and distribution center, warehouses for dry goods and frozen goods, and a machine shop for making and repairing parts for the production lines. It also houses a research and development center.

At the time relevant to this litigation, the BOC employed about 113 maintenance employees and 578 production employees. Most production employees work on the production lines, operating the manufacturing equipment, stacking the product on pallets, and storing it for distribution. Others work in pre-manufacturing, where they order materials and mix ingredients for the lines. Production employees generally work on a specific production line, and they do not work in the machine shop or the research and development center.

The majority of maintenance employees work on the production lines, where they are assigned to multiple production lines or the adjacent palletizing areas. They perform routine maintenance and as-needed repairs on the manufacturing equipment. The rest of the maintenance employees perform a variety of tasks throughout the BOC. Process technicians, who work in pre-manufacturing, assist with the computer-controlled mixing equipment and troubleshoot problems as they arise. The utilities group maintains the BOC's refrigeration systems, as well as its electrical, heating, plumbing, and ventilation systems. Other maintenance employees work as control technicians, in facilities maintenance, or in the machine shop.

On the production lines and in pre-manufacturing, maintenance and production employees sometimes work together. While production workers are trained to solve minor or routine technical problems-for example, simple packaging jams that can be fixed by removing the jammed material-their technical training is limited, and maintenance workers perform most repairs and routine maintenance. When production employees encounter technical problems they cannot solve, they call for the assistance of a maintenance employee. The maintenance employee diagnoses the problem and performs the repair, relying on input from the production worker. Every third shift, production workers disassemble the equipment for cleaning while maintenance workers stand by to replace broken parts or address problems that may occur during reassembly and start-up.

Maintenance and production employees have similar working conditions. They receive the same employment benefits, annual performance evaluations, and they use the same parking lots, time clocks, break rooms, and lockers. They must also follow the same workplace policies, including wearing similar uniforms.

But the two groups are distinguished in several significant respects. Maintenance workers are generally better paid, receiving $20-$30 an hour, compared with $15-$22

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for production workers. This reflects the fact that maintenance employees have significantly more training, particularly in mechanics and electronics. Maintenance employees rarely do the work of production employees, and they work on a different schedule. Whereas maintenance employees work four ten-hour shifts each week, production employees work five eight-hour shifts, which results in different overtime, holiday, and sick pay. Furthermore, the two groups are organized into separate departments with different immediate supervisors. Maintenance employees are part of the Technical Operations Team; production employees are on either the Manufacturing Team or the Pre-Manufacturing Team. Finally, the BOC shuts down annually for two to four weeks for a complete rebuild of the production lines. All maintenance employees are required to work during this period, whereas only a few production employees work if they volunteer or are selected to participate.

Near the end of 2009, Dreyer's put in place a pilot program, limited to one production line, intended to partially integrate the roles of production and maintenance employees. The purpose of the program was to increase production employees' ability to perform routine maintenance (cleaning, inspecting, lubricating), thereby allowing maintenance employees to focus less on breakdowns and more on preventive maintenance. The program was put on hold sometime in 2011 and was restarted in early 2012.

B.

Late in 2011, the International Union of Operating Engineers Local 501, AFL-CIO filed a petition with the Board, seeking to represent the BOC's maintenance employees. Dreyer's objected to the proposed unit, arguing that it should also include production employees. The Board's Regional Director (the " RD" ) approved the maintenance-only unit over Dreyer's objections, and the Board denied Dreyer's request for review. After maintenance employees voted 56-53 in favor of joining the Union, Dreyer's refused to bargain and the Union filed an unfair-labor-practice charge with the...

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