Rhino Northwest, LLC v. National Labor Relations Board, 081117 FEDDC, 16-1089

Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
Attorney:Timothy A. Garnett argued the cause for petitioner. With him on the briefs was Heidi Kuns Durr. Greg P. Lauro, Attorney, National Labor Relations Board, argued the cause for respondent. On the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda ...
Judge Panel:Before: Rogers and Srinivasan, Circuit Judges, and Edwards, Senior Circuit Judge.
Opinion Judge:Srinivasan, Circuit Judge:
Party Name:Rhino Northwest, LLC, Petitioner v. National Labor Relations Board, Respondent International Alliance of Theatrical Stage Employees, Local 15, Intervenor
Case Date:August 11, 2017
Docket Nº:16-1089, 16-1115
 
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Rhino Northwest, LLC, Petitioner

v.

National Labor Relations Board, Respondent

International Alliance of Theatrical Stage Employees, Local 15, Intervenor

Nos. 16-1089, 16-1115

United States Court of Appeals, District of Columbia Circuit

August 11, 2017

          Argued March 13, 2017

         On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Timothy A. Garnett argued the cause for petitioner. With him on the briefs was Heidi Kuns Durr.

          Greg P. Lauro, Attorney, National Labor Relations Board, argued the cause for respondent. On the brief were Richard F. Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Ruth E. Burdick, Deputy Assistant General Counsel, and Michael R. Hickson, Attorney.

          Dmitri Iglitzin argued the cause and filed the brief for intervenor.

          Before: Rogers and Srinivasan, Circuit Judges, and Edwards, Senior Circuit Judge.

          OPINION

          Srinivasan, Circuit Judge:

         Rhino Northwest, LLC, helps assemble equipment for concerts, festivals, and other events throughout the Pacific Northwest. A group of its employees called "riggers" sought to form a separate collective-bargaining unit. The National Labor Relations Board certified the proposed unit, and Rhino now challenges the Board's certification. According to Rhino, the company's other employees are so similar to its riggers that a bargaining unit cannot consist solely of the latter. Because a legitimate basis exists for excluding non-riggers from the bargaining unit, we sustain the Board's order.

         I.

         A.

         Section 7 of the National Labor Relations Act guarantees employees the right "to bargain collectively through representatives of their own choosing." 29 U.S.C. § ; 157. Under Section 9 of the NLRA, a proposed unit of employees must be "appropriate" for the enterprise of collective bargaining. Id. § 159(a). Once a group of employees petitions for union representation, "[t]he Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof." Id. § 159(b). This case concerns the conditions under which the Board may deem a proposed bargaining unit to be "appropriate."

         Under the Board's decisions, two considerations determine the prima facie appropriateness of a proposed unit. First, the employees must be "readily identifiable as a group" based on such factors as "job classifications, departments, functions, work locations, [or] skills." Specialty Healthcare & Rehab. Ctr. of Mobile, 357 N.L.R.B. 934, 945 (2011). Second, the petitioned-for employees must share a "community of interest." Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421 (D.C. Cir. 2008). The Board "weigh[s] all relevant factors on a case-by-case basis" to determine whether a set of employees are sufficiently alike to constitute an appropriate bargaining unit. Id. (quoting Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184, 1190-91 (D.C. Cir. 2000)). As long as the requisite connections exist, "the unit is prima facie appropriate." Id.

         Under the Board's approach, "more than one appropriate bargaining unit logically can be defined in any particular factual setting." Id. (quoting Country Ford Trucks, 229 F.3d at 1189). As a result, an employer challenging a proposed unit must do more than show that an alternate unit would also be appropriate, or even more appropriate. Of particular salience in this case, when an employer seeks to challenge a prima facie appropriate unit as underinclusive, the employer must demonstrate that the unit is "truly inappropriate, " as is the case when excluded employees share "an overwhelming community of interest with the included employees." Id. That "overwhelming community of interest" standard is satisfied only if "there is no legitimate basis upon which to exclude certain employees." Id.

         B.

         Rhino employs personnel who help set up venues for concerts and other planned events throughout the Pacific Northwest. Successful staging of a concert or comparable event requires various types of employees to work together. At a typical event, employees must unload the equipment, carry it to the event site, assemble it, disassemble it, and ultimately transport it back to the truck.

         This case arose when the International Alliance of Theatrical Stage Employees, Local No. 15 (the Union), filed a petition with the Board seeking to represent a bargaining unit composed of all riggers employed by Rhino at its Fife, Washington facility. Riggers are responsible for "using motors to safely suspend objects overhead before events and safely removing them with motors afterwards." Reg'l Dir.'s Decision and Direction of Election at 4.

         Rhino disputed the appropriateness of the proposed...

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