United States Court of Appeals, District of Columbia Circuit
March 13, 2017
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.
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.
Iglitzin argued the cause and filed the brief for intervenor.
Before: Rogers and Srinivasan, Circuit Judges, and Edwards,
Senior Circuit Judge.
Srinivasan, Circuit Judge:
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
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."
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
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 ...