Ups Ground Freight, Inc. v. N.L.R.B., 18-1161
| Decision Date | 19 April 2019 |
| Docket Number | No. 18-1161,C/w 18-1182,18-1161 |
| Citation | 921 F.3d 251 |
| Parties | UPS GROUND FREIGHT, INC., Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent International Brotherhood of Teamsters Local Union No. 773, Intervenor |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Kurt G. Larkin, Richmond, VA, argued the cause and filed the briefs for petitioner. James P. Naughton, Norfolk, VA, entered an appearance.
David R. Broderdorf, and Jonathan C. Fritts, Washington, DC, were on the brief for amici curiae UPS Ground, et al. in support of petitioner.
Mark W. Mosier, Kevin King, Steven P. Lehotsky, Washington, DC, and Michael B. Schon were on the brief for amicus curiae The Chamber of Commerce of the United States of America in support of petitioner and cross-respondent.
Eric Weitz, Attorney, National Labor Relations Board, argued the cause for respondent. With him on the brief were Peter B. Robb, General Counsel, John W. Kyle, Deputy General Counsel, David Habenstreit, Associate General Counsel, and Kira Dellinger Vol, Supervisory Attorney.
Before: Garland, Chief Judge, Srinivasan, Circuit Judge, and Randolph, Senior Circuit Judge.
UPS Ground Freight, Inc. challenges the certification of a union at its Kutztown, Pennsylvania distribution facility. The National Labor Relations Board rejected UPS Ground's challenges to the union's certification and then determined that the company committed unfair labor practices by declining to bargain with the union. UPS Ground now seeks review in this court. We deny UPS Ground's petition for review and grant the Board's cross-application for enforcement.
UPS Ground Freight, Inc., a subsidiary of United Parcel Service, Inc., provides transportation and delivery services throughout the United States. On December 10, 2015, International Brotherhood of Teamsters, Local 773, filed a petition with the Board seeking a representation election among all drivers at UPS Ground's distribution center in Kutztown, Pennsylvania. The Acting Regional Director scheduled a pre-election hearing for December 21, at which the parties presented evidence on the supervisory status of Frank Cappetta, one of the drivers employed at the Kutztown center. On January 5, 2016, the Acting Regional Director directed a mail-ballot election at the Kutztown distribution center. The Acting Regional Director did not rule on the supervisory status of Cappetta.
The election occurred between January 11 and January 29. By a vote of twenty-seven to one, the employees voted in favor of representation by the union. UPS Ground sought review with the National Labor Relations Board.
On July 27, 2017, the Board issued a Decision on Review and Order. The Board found that Cappetta was not a statutory supervisor and that, in the alternative, he did not engage in objectionable conduct if he were a supervisor. On all other grounds, the Board denied review.
Subsequently, the Union made a formal request to bargain, and UPS Ground refused. The Board's General Counsel issued an unfair-labor-practice complaint, and the Board found that UPS Ground had committed unfair labor practices by refusing to bargain. UPS Ground petitions this Court for review, and the Board cross-petitions this Court for enforcement.
Because UPS Ground has not identified a defect in the Board's decision to certify the Union, we deny UPS Ground's petition for review and grant the Board's cross-application for enforcement.
First, the Board certified an appropriate bargaining unit. Under the Act, a bargaining representative must be selected "by the majority of the employees in a unit appropriate for [collective bargaining] purposes." 29 U.S.C. § 159(a) (emphasis added). "The Board need only select an appropriate unit, not the most appropriate unit." Cleveland Constr., Inc. v. NLRB , 44 F.3d 1010, 1013 (D.C. Cir. 1995) (emphases added). Under controlling Board precedent, a single-facility bargaining unit is "presumptively appropriate." Cmty. Hosps. of Cent. Cal. v. NLRB , 335 F.3d 1079, 1084 (D.C. Cir. 2003). To assess that presumption in a given case, the Board considers "geographic proximity, employee interchange and transfer, functional integration, administrative centralization, common supervision, and bargaining history." Id. at 1085 (quoting W. Jersey Health Sys. , 293 NLRB 749, 751 (1989) ).
Here, the Acting Regional Director reasonably found (and the Board ratified) that those factors favored a single-facility bargaining unit, rather than a unit encompassing all of UPS Ground's facilities. In particular, the Acting Regional Director reasonably relied on "the significant evidence of local autonomy over labor relations matters at the Kutztown facility" and "the considerable distance between the Kutztown facility and the other facilities." J.A. 677. We see no basis to set aside the Board's choice of bargaining unit.
Second, the Board reasonably determined that Cappetta was an "employee" under the Act and not a statutory "supervisor" who would be excluded from the Act's protections. Generally, if a supervisor's conduct "reasonably tends to have such a coercive effect on ... employees that it is likely to impair their freedoms of choice in the election," that conduct can taint an election and require its results to be set aside. Salem Hosp. Corp. v. NLRB , 808 F.3d 59, 63 (D.C. Cir. 2015) (alterations omitted). Here, however, the Board properly concluded that Cappetta was not a supervisor, which renders irrelevant the question of taint.
UPS Ground argues that Cappetta performed four supervisory functions—namely, that he assigned work, made hiring recommendations, directed employees, and adjusted grievances. The Board reasonably rejected each of those claims. The authority to assign work requires that the employee "ha[ve] the ability to require that a certain action be taken." Golden Crest Healthcare Ctr. , 348 NLRB 727, 729 (2006). And the evidence supports the conclusion that Cappetta lacked the authority to require a driver to accept a particular route; rather, if a driver objected, Cappetta was obligated to refer the matter to management. As for the ability to make hiring recommendations, the Board explains that Cappetta had input only insofar as he administered road tests to new hires and reported the results to management. The Board has consistently found that such involvement in the hiring process does not establish supervision. See, e.g. , Pac. Beach Corp. , 344 NLRB 1160, 1161–62 (2005). The last two alleged supervisory functions—the direction of employees, and the adjustment of grievances—find even less support in the record. For someone to direct employees, that person must be "accountable for the performance of the task by the [employees]." Oakwood Healthcare, Inc. , 348 NLRB 686, 692 (2006). UPS Ground points to no record evidence that Cappetta was so accountable. As for the authority to adjust grievances, it does not appear that Cappetta had the authority to resolve any disputes. At most, Cappetta had the authority to "bring any minor grievances to the attention of upper management for resolution," which does not suffice. Ken-Crest Servs. , 335 NLRB 777, 779 (2001).
UPS Ground would have us look to additional evidence of supervisory status, detailed in an offer of proof filed in support of its objections to the election results. But neither the Acting Regional Director nor the Board had an obligation to consider belatedly-presented evidence. "[T]he Board need not afford a party objecting to a representation hearing more than one opportunity to litigate any particular issue," Sitka Sound Seafoods, Inc. v. NLRB , 206 F.3d 1175, 1182 (D.C. Cir. 2000), and UPS Ground received that opportunity at the pre-election hearing.
UPS Ground's remaining objections to the application of the Board's rules and regulations all lack merit. (UPS Ground has disclaimed a facial challenge to the Board's rules.) Various of UPS Ground's objections challenge the Acting Regional Director's failure to permit an all-embracing investigation of Cappetta's actions leading up to the election. Those objections all fail for the simple reason that the Board reasonably concluded that...
To continue reading
Request your trial