United States Court of Appeals, District of Columbia Circuit
October 11, 2016
Application for Enforcement and Petition for Review of an
Order of the National Labor Relations Board
Jonathan W. Greenbaum argued the cause and was on brief for
Tito Contractors, Inc.
Michael Ellement, Attorney, National Labor Relations Board,
argued the cause for the National Labor Relations Board.
Richard Griffin, Jr., General Counsel, Jennifer Abruzzo,
Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Linda Dreeben, Deputy Associate General Counsel, and
Jill A. Griffin, Supervisory Attorney, were with him on
Before: Henderson and Rogers, Circuit Judges, and Ginsburg,
Senior Circuit Judge.
LECRAFT HENDERSON, CIRCUIT JUDGE.
Contractors, Inc. (Tito) is a Washington, D.C.-based general
contracting company. As it turns out, that label covers a
diverse set of services, ranging from masonry to snow removal
and recycling services. This case involves the question of
what bargaining unit is appropriate when so varied a
workforce seeks union representation. The National Labor
Relations Board (NLRB or Board) concluded that Tito's
employees should be included in a "wall-to-wall"
bargaining unit. We believe that the Board failed to consider
evidence pointing to the absence of the required
"community of interest" among them. We therefore
grant Tito's petition for review, deny the NLRB's
application for enforcement and remand to the Board for
further proceedings consistent with this opinion.
November 2013, the International Union of Painters and Allied
Trades, District Council 51, AFL-CIO (Union) filed a
representation petition with the NLRB. The Union sought to
represent "[a]ll employees employed by [Tito], excluding
all project managers, recycling supervisors, clerical
employees, managerial employees, professional employees,
guards, and supervisors as defined by the [National Labor
Relations] Act" (Act). Joint Appendix (JA) 116. The
following month, an NLRB hearing officer (HO) held a hearing
on the Union's petition. Tito raised two objections:
first, that the proposed bargaining unit was inappropriate
because its members did not share a sufficient
"community of interest" and, second, certain
employees should be excluded from the bargaining unit because
they were supervisors within the meaning of the Act. We focus
on the first of the challenges. Considering that challenge,
the HO advised Tito that a "wall-to-wall unit of all
employees employed by the [e]mployer involves a presumption .
. . of appropriateness under Board law[.]" Id.
at 15. She informed Tito that it was therefore "required
to present an offer of proof that the unit sought is
inappropriate." Id. Tito objected to the
offer-of-proof procedure, arguing that it instead had the
right to present testimony and other evidence on the issue of
its objection, Tito made an offer of proof, describing its
business at some length. It divided Tito's operations
into two halves: the "labor or contract side of the
business" and the recycling side. Id. at 23.
Tito further divided the labor side into three groups of
employees: two mechanics, one warehouse employee and multiple
laborers.Regarding the first, Tito explained that it
employed two mechanics who worked full-time in its Georgia
Avenue office in the District of Columbia (District). The two
performed routine maintenance on Tito vehicles but performed
no work for Tito customers. Both mechanics "receive[d]
benefits and vacation." Id. at 20. Second, Tito
explained that its one warehouse employee worked full-time in
Kensington, MD. There, he coordinated and received deliveries
and organized the Tito warehouse. He was the only employee
there and performed no contracting services. Third, Tito
laborers worked in crews, performing a variety of tasks for
its customers. Some laborers worked as painters, others as
skilled masons and others as tile installers and carpenters.
Some crews were assigned to "more permanent contracts[,
]" id. at 22, of which Tito provided a few
examples. For example, four employees worked under Tito's
contract with Arlington County, VA. The four reported to
Arlington County's maintenance office each morning and
complied with the "task orders" they received
there. The tasks ranged from repairs to construction to snow
removal. Arlington County controlled the Tito laborers'
working hours and could request that they be removed from or
remain on the job site. In addition, Tito had contracts with
Baltimore, MD, and Fairfax County, VA, which contracts set
forth specific work hours and standards for how Tito laborers
were to complete their work.
also offered proof of the recycling side of its business. It
had three separate recycling contracts with Maryland
Environmental Services (MES) under which nearly sixty Tito
employees worked at several recycling facilities in Maryland.
The first contract covered two locations in Montgomery
County, MD: a compost facility in Dickerson and a transfer
station in Derwood. Tito employees at the Dickerson location
performed such tasks as bagging compost, stacking bags,
wrapping pallets, monitoring temperatures and groundskeeping.
Derwood employees' duties, in contrast, included traffic
control, equipment cleaning, groundskeeping and temperature
monitoring. Under this contract, MES exercised considerable
control of the Tito employees. For example, MES determined
the number of employees needed and their hours, established
their minimum pay rate, approved or denied overtime and
"provide[d] that employees at these two facilities . . .
be offered . . . [, ] if . . . eligible . . . [, ] medical
and dental insurance." Id. at 25- 26.
second contract covered a different Derwood facility. At this
facility, twenty-five Tito employees and one Tito supervisor
sorted recyclables on a conveyor belt. They also performed
minor custodial duties. Like the first, their contract
included a minimum pay rate and provision for medical and
dental insurance. In addition, Tito employees generally
worked a ten-hour shift each day Monday through Thursday,
with a half-hour unpaid lunch break and relief breaks as
approved by an MES supervisor.
third MES contract covered a recycling facility in
Cockeysville, MD. The contract required both skilled and
unskilled labor, including provision of recycling services.
Like the other MES contracts, the Cockeysville contract set a
minimum pay rate. Tito employees working in Cockeysville were
paid less than their counterparts in Dickerson and Derwood
and they were not eligible for benefits.
Tito completed its offer of proof, the HO went off the record
for seven minutes. Once back on the record, she announced
that "[a]fter consulting with the [r]egional management,
[she] receive[d] [Tito's] officer of proof" but
declared that "the evidence proffered [was]
rejected" and that she did not intend to "permit
testimony on [the bargaining-unit] issue." Id.
at 29. Tito objected, arguing that section 9 of the Act
affords an employer a "hearing on issues subject to the
petition." Id. The HO noted Tito's
objection but instructed it to present its first witness on
the supervisor issue only.
the hearing, two Tito witnesses testified-a Tito general
manager and a Tito supervisor-on the supervisor issue. After
their testimony concluded, Tito renewed its objection to the
offer-of-proof procedure. It argued, in part:
Section 9(c)(1) of the Act affords the [e]mployer the
opportunity to present evidence and witnesses for a full
hearing on the representation petition. In this case, the
Regional Director took an offer of proof. Within a couple of
minutes of providing that offer of proof, the Regional
Director made a decision without a transcript and literally
within a couple of minutes [made] a determination that the
Employer would have to rest on the record on that issue with
an offer of proof without the availability of presenting
witnesses and evidence.
Id. at 108.
days after the hearing, and after only Tito filed a
post-hearing brief, the Board's Acting Regional Director
issued a Decision and Direction of Election. In it, he
concluded that the HO properly exercised her discretion in
following the offer-of-proof procedure. Importantly, he
acknowledged that "[t]here [was] no evidence of any
interchange between the recycling employees, or between the
recycling employees and any other classification of
employee." Id. at 120. But he also noted that
Tito had not proposed an alternative bargaining unit. He then
concluded Tito had not overcome the "presumption"
that an employer-wide unit was appropriate. Tito thereafter
sought Board review. In the meantime, a mail-ballot election
was held between February 28, 2014 and March 14, 2014.
November 17, 2014, the Board rejected Tito's
unit-appropriateness petition, stating that "[t]he
Employer's Request for Review of the Acting Regional
Director's Decision and Direction of Election is denied
as it raises no substantial issues warranting review"
and that "[t]he Employer's request to reopen the