NLRB v. Tito Contractors, Inc.

Filing

OPINION [1659251] filed (Pages: 18) for the Court by Judge Henderson, CONCURRING OPINION (Pages: 1) by Judge Henderson, CONCURRING OPINION (Pages: 2) by Judge Rogers. [15-1217, 15-1226]

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2016

Decided February 3, 2017

No. 15-1217
NATIONAL LABOR RELATIONS BOARD,
PETITIONER
v.
TITO CONTRACTORS, INC.,
RESPONDENT

Consolidated with 15-1226

On 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 brief.

Page 1 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

2
Before: HENDERSON and ROGERS, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge HENDERSON.
Concurring opinion filed by Circuit Judge ROGERS.
KAREN LECRAFT HENDERSON, Circuit Judge: Tito
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.
I. BACKGROUND
In 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

Page 2 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

3
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 unit appropriateness.
Notwithstanding 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.1
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
1

Tito used “laborers” to refer to employees on the labor side of
its business. JA 21. It referred to its recycling employees simply
as “employees.” Id. at 23–29. Tito did not identify how many
laborers it employed; instead, it noted that it had approximately 57
employees providing recycling services and approximately 100
employees in toto, excluding managerial and clerical employees.
See id. at 19, 23.

Page 3 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

4
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.
Tito 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
2
groundskeeping.
The 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
2

The groundskeeping duties included, among other things,
“mowing, weed eating, . . . leaf blower usage, litter control,
housekeeping[] [and] painting.” JA 25.

Page 4 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

5
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.
The 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.
The 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.
After 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.

Page 5 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

6
During 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
3
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.
Eleven 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
3

The HO clarified that she—not the Regional
Director—decided that Tito’s offer of proof was insufficient.

Page 6 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

7
Board review. In the meantime, a mail-ballot election was
held between February 28, 2014 and March 14, 2014.
On 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 record is denied.” Id. at
162. The Board also included the following footnote:
In denying review, we agree with the Acting
Regional Director that the Employer has not
overcome the presumptive appropriateness of
the unit sought by the Petitioner.
The
petitioned-for employees work for the same
employer in facilities located in a common
geographical region and perform skilled and
unskilled physical work.
There is some
evidence that the warehouse employee
sometimes assists with other Employer projects
besides the warehouse and coordinates
shipments and deliveries with other employees.
Further, there is no evidence of collective
bargaining in smaller units and no party seeks to
represent any of the employees in a smaller
unit. Finally, the Employer has not proposed
any alternative units. Member Miscimarra
would grant review and evaluate the record
evidence regarding the appropriateness of the
petitioned-for unit.
Id.
Shortly thereafter, the ballots were counted and the Union
prevailed. Tito lodged three objections to the election,

Page 7 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

8
including a challenge to the balloting by mail. The Board
eventually rejected the objections and certified the Union.
Tito refused to bargain with the Union and the Union then filed
an unfair labor practice complaint. The Board General
Counsel moved to transfer proceedings from the applicable
regional director to the Board and also moved for summary
judgment. Tito did not respond and the Board granted
summary judgment, ordering Tito to bargain with the Union.
Tito thereafter filed a petition for review in this Court and the
Board cross-applied for enforcement of its order.
II. ANALYSIS
Section 9(a) of the NLRA provides that a
representative selected “by the majority of the employees in a
unit appropriate for [collective-bargaining] purposes” is to be
the employees’ exclusive collective-bargaining representative.
29 U.S.C. § 159(a). The Board “shall decide in each case
whether . . . the unit appropriate for the purposes of collective
bargaining [is] the employer unit, craft unit, plant unit, or
subdivision thereof . . . .”
Id. § 159(b).
Although the
Board’s discretion to pick a bargaining unit is “broad,” NLRB
v. Action Auto., Inc., 469 U.S. 490, 494 (1985), it is not
unlimited; for example, the Board may not give controlling
weight to the extent to which the employees have organized, 29
U.S.C. § 159(c)(5). In deciding what bargaining unit is
appropriate, the Board has long presumed that an
employer-wide bargaining unit is appropriate, absent a
sufficient showing to the contrary. See, e.g., Greenhorne &
O’Mara, Inc., 326 N.L.R.B. 514, 516 (1998); Montgomery
Cty. Opportunity Bd., 249 N.L.R.B. 880, 881 (1980).
When a labor union files a petition for a representation
election, section 9(c) of the Act requires the Board to
investigate. 29 U.S.C. § 159(c)(1). If the Board has
“reasonable cause to believe that a question of representation

Page 8 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

9
affecting commerce exists,” it is to “provide for an appropriate
hearing upon due notice.” Id. At the time of the hearing in
this case, regulations provided that all parties must be
“afforded full opportunity to present their respective positions
and to produce the significant facts in support of their
contentions.” 29 C.F.R. § 101.20(c) (2014).4 Additionally,
the regulations also make it “the duty of the hearing officer to
inquire fully into all matters and issues necessary to obtain a
full and complete record upon which the Board or the regional
director may discharge their duties under section 9(c) of the
Act.” 29 C.F.R. § 102.64(b) (2013).5
In its petition to this Court, Tito challenges the
offer-of-proof procedure used by the HO and endorsed by the
Board. It also challenges the Board’s ultimate conclusion that
an employer-wide bargaining unit is appropriate for Tito’s
multi-faceted business.
A. PROCEDURAL OBJECTION
The core of Tito’s regulation-based argument is that, by
rejecting its offer of proof and approving an employer-wide
unit based on a presumption, the HO failed to “inquire fully
into all matters and issues necessary to obtain a full and
4

The NLRB eliminated this regulation, effective April 14,
2015. Representation—Case Procedures, 79 Fed. Reg. 74,308,
74,308, 74,384 (Dec. 15, 2014). The revised regulations clarify that
many issues, including employees’ eligibility to vote, can be
deferred until after the election.
Id.; see also 29 C.F.R.
§§ 102.64(a)–(b), 102.66(a).
5

This provision is now qualified by the phrase “[s]ubject to the
provisions of § 102.66[.]” Among other things, § 102.66 authorizes
an HO to solicit an offer of proof and a regional director to reject the
evidence described therein if insufficient to sustain the offeror’s
position. 29 C.F.R. § 102.66(c).

Page 9 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

10
complete record” and to “afford[] [Tito] full opportunity to
present [its] position[] and to produce the significant facts in
support” thereof. 29 C.F.R. § 101.20(c) (2014); 29 C.F.R.
§ 102.64(b) (2013).
Nevertheless, both the Board
Casehandling Manual and Board precedent confirm that the
Board has historically regarded the offer-of-proof approach as
sound and “we give controlling weight to the Board’s
interpretation of its own rule unless it is plainly erroneous or
inconsistent with the regulation itself.” Rush Univ. Med. Ctr.
v. NLRB, 833 F.3d 202, 206–07 (D.C. Cir. 2016) (internal
quotation marks omitted).
First, the Casehandling Manual provides in pertinent part:
When the hearing officer rejects proffered
testimony or refuses to allow a line of
testimony, it may be appropriate to suggest that
the party adversely affected make an offer of
proof. If after reviewing the offer of proof, the
hearing officer continues to reject the testimony
or line of inquiry, a brief record of the rejected
material is present in the record for later review.
The offer, in essence, is a statement that, if the
named witness were permitted to testify on the
matters excluded, he/she would testify to
specified facts. The facts should be set forth in
detail; an offer in summary form or consisting
of conclusions is insufficient.
An offer of proof may take the form of an oral
statement on the record, a written statement to
be included in the record (copies and service as
with motions, Sec. 11225) or in the unusual
situation, with permission of the hearing
officer, specific questions of and answers by the

Page 10 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

11
witness. The latter often lengthens the record
unnecessarily and should be avoided.
Nat’l Labor Relations Bd., Casehandling Manual, Pt. 2,
Representation Proceedings, § 11226 (Aug. 2007). This
provision plainly supports the procedure the HO used here.
Elsewhere, the Casehandling Manual provides that, if “the unit
sought . . . is presumptively appropriate, then only limited
evidence may be allowed where a party takes a position as to
alternative units.” Id. § 11217 (emphasis in original). But
“such evidence may be precluded in certain circumstances.”
Id. If an employer which, unlike Tito, proposes an alternative
unit can present only “limited” evidence, then Tito—which did
not “take[] a position” on an alternative unit—should not be
heard to complain that it is entitled to more under Board
regulations.
The offer-of-proof procedure is also consistent with Board
precedent. In In re Laurel Associates, Inc. d/b/a Jersey Shore
Nursing and Rehabilitation Center, the union sought to
represent a presumptively appropriate unit comprising, in
effect, all eligible service and maintenance employees. 325
N.L.R.B. 603, 603 (1998). At the hearing, the employer
argued that three smaller units were more appropriate and the
HO then directed it to make an offer of proof. Id. The offer
of proof showed that each proposed unit differed in terms of
supervision, job functions, wage rates and training
requirements. Id. It also showed that no interchange existed
among the three proposed units. Id. The HO rejected the
offer of proof and precluded further evidence on the issue,
noting that the proposed wall-to-wall unit was presumptively
appropriate. Id. The regional director and, ultimately, the
Board upheld the decision. Id. Laurel Associates, then, is
direct precedent supporting the use of an offer of proof in lieu

Page 11 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

12
of oral testimony if the petitioned-for unit is presumptively
appropriate.6
Nor are we persuaded by Tito’s claim that “[f]ederal
courts have . . . held that the Board’s refusal to allow an
employer to litigate the appropriateness of a bargaining unit
constitutes reversible error.” Pet’r’s Br. 20. Tito’s argument
rests on three cases—NLRB v. Indianapolis Mack Sales &
Service, Inc., 802 F.2d 280 (7th Cir. 1986), NLRB v. St. Francis
Hospital of Lynwood, 601 F.2d 404 (9th Cir. 1979) and Ozark
Automotive Distributors, Inc. v. NLRB, 779 F.3d 576 (D.C. Cir.
2015)—each of which is distinguishable.
In Ozark, the only one decided by this Court, the employer
challenged a union representation election, alleging that union
agents interfered with the election. 779 F.3d at 577–78.
Before the HO’s hearing, the employer served subpoenas
duces tecum on the union and on an employee who allegedly
6

Tito does not discuss Laurel Associates; it instead relies on
the NLRB’s earlier decision in Barre-National, Inc., 316 N.L.R.B.
877 (1995), which has since been overruled. 79 Fed. Reg. at
74,386; see NLRB v. Bell Aerospace Co. Div. of Textron, 416 U.S.
267, 294 (1974) (“[T]he choice between rulemaking and
adjudication lies in the first instance within the Board’s
discretion . . . .”). In Barre-National, the union sought to represent
a unit of all warehouse and distribution, production and maintenance
employees. 316 N.L.R.B. at 877. The employer argued that 24
individuals within the group were supervisors and thus ineligible for
inclusion. Id. The HO allowed the employer to make only an offer
of proof as to the supervisors’ status. Id. at 878. The Board on
review concluded that the hearing had been improperly curtailed, id.,
stressing that its conclusion was “based on the facts of this case.” Id.
at 878 n.9. The Board order, however, did not explain which facts it
regarded as critical to its decision. At a minimum, its focus on
supervisory status rather than unit-appropriateness distinguishes it
from this case.

Page 12 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

13
acted as its agent. Id. at 578. The union and the employee
objected, including on attorney-client privilege and
work-product grounds. Id. The HO did not rule on the
subpoenas until the end of the hearing in case the employer
could elicit “some of the evidence through testimony[.]” Id.
(internal quotation marks omitted). At the close of testimony
and without conducting an in camera review, the HO quashed
the subpoenas. Id. at 578–79, 581. The employer appealed
to the Board; however, the Board adopted her findings and
recommendations and certified the union. Id. at 579. One
Board member dissented because, in his view, the HO
improperly focused on the employees’ privacy interest to the
exclusion of the employer’s interests. Id. The employer
persisted in its refusal to negotiate with the union and the
Board upheld the union’s subsequent unfair labor practice
charge. Id. at 579–80. We granted the employer’s petition
for review, id. at 586, concluding that both the HO and the
Board failed to balance the employees’ interests against the
employer’s need for the documents, id. at 581. We noted that
the NLRB Guide for Hearing Officers instructs an HO, if faced
with a confidentiality objection, to consider reviewing the
subpoenaed documents in camera to determine whether the
objection can be met by redacting the documents or limiting
the subpoena’s scope. Id. at 582. The HO had done neither.
Id. Nor was the error harmless because it could have affected
the employer’s presentation at the hearing. Id. at 582, 585–
86. Ozark is thus easily distinguished: it did not treat the
offer-of-proof procedure.
Tito’s out-of-circuit caselaw is likewise distinguishable.
In Indianapolis Mack, the employer contracted with a
nationwide business to acquire the latter’s subsidiary’s
Indianapolis factory. 802 F.2d at 282. The employer
subsequently refused to negotiate with the union that
represented employees in the factory’s service and parts

Page 13 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

14
departments and the union’s unfair labor practice charge
followed. Id. At the hearing, the employer challenged the
bargaining unit’s appropriateness but the administrative law
judge (ALJ) declared that the issue was not properly before
her. Id. In her subsequent decision, however, she concluded
that the bargaining unit composed of service department
employees only was, as a matter of law, appropriate. Id. at
282–83. The Board agreed but the Seventh Circuit denied its
enforcement application. Id. at 283, 286. The court reasoned
that the Board’s bargaining-unit determination was improper,
in part because the Board made the determination on the basis
of the record before the ALJ, who had not permitted
unit-appropriateness evidence because she wrongly believed
the issue was not before her. Id. at 283–84. In our view,
Tito’s reliance on Indianapolis Mack Sales & Service might be
well-placed but for one critical difference—Tito’s offer of
proof. The employer in Indianapolis Mack made no offer of
proof. Id. at 286 (Cudahy, J., dissenting). Because Tito’s
offer of proof did address—however summarily—the
appropriateness of the wall-to-wall unit, Indianapolis Mack is
of scant support to Tito.
In St. Francis Hospital, the union petitioned to represent
the hospital’s registered nurses. 601 F.2d at 407. The
hospital argued that the bargaining unit should include all
professional employees and sought to present supporting
testimony and other evidence. Id. The HO did not admit the
evidence, relying on NLRB precedent holding that registered
nurses, if they desired, were entitled to their own bargaining
unit. Id. Although the hospital made an offer of proof before
the HO, the reviewing regional director subsequently
concluded that registered nurses comprised an appropriate unit
and the Board agreed. Id. The Ninth Circuit, however,
concluded that the Board improperly relied on a per se rule of
bargaining-unit appropriateness. Id. at 413–16. Unlike in St.

Page 14 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

15
Francis Hospital, the HO here (presumably) evaluated Tito’s
offer of proof when she went off the record for seven minutes.
Tito’s final argument is that the offer-of-proof procedure
runs afoul of the text of two statutory provisions. Tito first
argues the Act requires the Board to “decide in each
case . . . the unit appropriate for the purposes of collective
bargaining,” 29 U.S.C. § 159(b) (emphasis added). The HO,
regional director and Board did consider case-specific facts in
deciding—rightly or wrongly—that the wall-to-wall
bargaining unit was appropriate.
Tito’s second statutory argument posits that the decision
does not comply with section 9(c)(5)’s command that, “[i]n
determining whether a unit is appropriate . . . [,] the extent to
which the employees have organized shall not be controlling.”
Id. § 159(c)(5).
As we have explained, the Board’s
unit-appropriateness presumptions give “the [u]nion an initial
advantage” but “[t]his modest benefit . . . hardly grants
‘controlling’ weight to the extent the [u]nion ha[d] organized
the employees.” Sundor Brands, Inc. v. NLRB, 168 F.3d 515,
519 (D.C. Cir. 1999). Similarly, presuming a wall-to-wall
bargaining unit’s appropriateness is not synonymous with
granting controlling weight to a union’s organizing effort.
B. APPROPRIATENESS OF WALL-TO-WALL
BARGAINING UNIT
Tito’s substantive challenge to the appropriateness of the
wall-to-ball bargaining unit has more “substance.” In our
view, the Board did not adequately consider the ample
evidence manifesting that Tito’s employees lacked a
community of interest.
We start with the principle that the Board’s decision as to
the appropriate bargaining unit “is entitled to wide deference.”

Page 15 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

16
United Food & Commercial Workers, AFL-CIO v. NLRB, 519
F.3d 490, 494 (D.C. Cir. 2008) (internal quotation marks
omitted). “In determining whether a unit is appropriate, the
Board focuses on whether the employees share a community of
interest.” Id. (internal quotation marks omitted). “The
Board considers ‘a variety of factors, including the employees’
wages, hours and other working conditions; commonality of
supervision; degree of skill and common functions; frequency
of contact and interchange with other employees; and
functional integration.’” Id. (quoting Sundor Brands, 168
F.3d at 518). Nevertheless, we have granted a petition for
review if the NLRB’s “bargaining unit determination . . . is
arbitrary or not supported by substantial evidence in the
record.” Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 420
(D.C. Cir. 2008) (internal quotation marks omitted). “[W]e
may not find substantial evidence ‘merely on the basis of
evidence which in and of itself justified [the Board’s decision],
without taking into account contradictory evidence or evidence
from which conflicting inferences could be drawn.’”
Lakeland Bus Lines, Inc. v. NLRB, 347 F.3d 955, 962 (D.C.
Cir. 2003) (second alteration in original) (quoting Universal
Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). “[T]he
substantiality of evidence must take into account whatever in
the record fairly detracts from its weight.” Id. at 961–62
(internal quotation marks omitted) (quoting Universal Camera
Corp., 340 U.S. at 488).
In our view, the Board order is not supported by
substantial evidence. The Board does not discuss the portions
of Tito’s offer of proof which plainly showed no community of
interest. Tito’s offer of proof contains at least three types of
evidence contradicting the Board’s conclusion. First, the
Board fails to recognize the unchallenged assertion that Tito’s
business comprised two discrete halves—a labor side and a
recycling services side. As Tito explained, its laborers’ tasks

Page 16 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

17
included such varied duties as painting, tile installation and
snow removal. Most of its employees on the labor side of the
business performed work exclusively for Tito. In contrast, all
of Tito’s recycling employees worked on site at Maryland
recycling facilities where they did not “perform labor work,”
JA 24, but instead bagged compost and sorted recyclables.
These employees worked in different locations several miles
apart and the recycler, MES, exercised considerable control
over their working conditions. The Board minimizes these
plain—and specific—differences with its generic observation
that “[t]he petitioned-for employees work for the same
employer in facilities located in a common geographical region
and perform skilled and unskilled physical work.” Id. at 162
n.1. But how does the Board’s hyper-generalized description
of Tito’s employees’ responsibilities reflect a community of
interest? The Board offers only silence.
Second, the Board also fails to consider the lack of
interchange among the different types of Tito employees.
Significantly, the Acting Regional Director himself noted 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 (emphasis
added).
For example, on Tito’s recycling side, the
Cockeysville facility is approximately sixty miles from the
Derwood facility, meaning that its employees could not easily
move between the two if one facility was short-staffed. This
distance alone belies the existence of meaningful interchange
between the recycling employees and Tito’s labor-side
employees. Indeed, the distances among Tito’s various
worksites were cited as a reason to conduct a mail-ballot
election. Id. at 170. And yet, the Board ignored that
employee interchange was lacking. Instead, it summarily
concluded that the employees worked “in facilities located in a
common geographical region” and that there was “some

Page 17 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

18
evidence that the warehouse employee sometimes assists with
other [e]mployer projects . . . and coordinates shipments and
deliveries with other employees.” Id. at 162 n.1. The Board
did not explain how these isolated facts, even if true, supersede
the lack of evidence that interchange exists among Tito’s two
mechanics, one warehouseman and its many laborers (who
themselves are separated).
Third, the Board overlooks the significant differences
among Tito’s employees’ “wages, hours and other working
conditions.” United Food & Commercial Workers, 519 F.3d
at 494. Tito’s Cockeysville employees receive no fringe
benefits and are paid less than the Dickerson and Derwood
employees to whom both medical and dental insurance is
available. Moreover, the three MES contracts set minimum
pay rates for Tito’s recycling employees. These important
differences tend to undermine the conclusion that Tito’s
employees share a community of interest. Because the Board
failed to take this evidence into account, its conclusion is not
supported by substantial evidence. Lakeland Bus Lines, 347
F.3d at 961–62.
For the foregoing reasons, we grant Tito’s petition for
review, deny the Board’s application for enforcement and
remand to the Board for further proceedings consistent with
this opinion.
So ordered.

Page 18 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

KAREN LECRAFT HENDERSON, Circuit Judge, concurring:
I write separately to give a word to the wise: although the
Board’s order, composed of two sentences of text and a
footnote analysis of the unit-appropriateness issue (which
analysis also acknowledges its dissenting colleague’s view) is
apparently standard operating procedure at this stage, the
Board will continue to run the risk of a court-imposed re-do if
it persists—especially when, en route to the Board’s review,
the HO, inter alia, likewise fails to consider adequately the
offered proof. It might be better served by rethinking its
drumhead procedure.

Page 19 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

ROGERS, Circuit Judge, concurring: I concur in granting
the petition for review, and denying the Board’s crossapplication for enforcement of its Order. With respect to the
challenge to the Board’s finding of the appropriateness of the
company-wide bargaining unit, Op. Part II.B, I concur for the
following reasons. The Board’s decision failed to come to grips
with record evidence offered by the petitioner that potentially
detracts from the conclusion that the company-wide bargaining
unit sought by the Union was appropriate. See Tito Contractors,
Inc. v. Int’l Union of Painters & Allied Trades, Dist. Council 51
(AFL-CIO), NLRB Case 05-RC-117169 at 1 n.1 (Nov. 17, 2014)
(“2014 Decision”). As the court recounts, the evidence
suggested that the petitioner’s business was divided into two
halves, where working conditions varied between and within the
two halves. See Op. 16-18. The Board’s finding is therefore
unsupported by substantial evidence in the record as a whole.
See Universal Camera Corp. v. NLRB, 340 U.S. 474, 491
(1951); 29 U.S.C. § 160(e).
Of course, in determining whether employees share a
“community of interests” making a bargaining unit appropriate,
RC Aluminum Industries, Inc. v. NLRB, 326 F.3d 235, 239 (D.C.
Cir. 2003), the Board considers a “host of factors” and “no
particular factor controls,” id. at 240. But the challenged
decision makes it difficult to discern the Board’s rationale for
concluding that the petitioner failed to overcome the
presumptive appropriateness of the company-wide bargaining
unit. See NBCUniversal Media, LLC v. NLRB, 815 F.3d 821,
829 (D.C. Cir. 2016). The Board makes conclusory findings,
such as that employees work in a “common geographical region
and perform skilled and unskilled physical work.” 2014
Decision at 1 n.1. It also fails to explain why the few facts on
which it relies, such as “some evidence” that a single employee
“sometimes assists” others, id., should take precedence over
other record evidence that appears to detract from the Board’s
conclusion, see Op. 16-18.

Page 20 of 21

USCA Case #15-1217

Document #1659251

Filed: 02/03/2017

2
On remand, the Board will have the opportunity to address
fully the evidence offered by the petitioner regarding the
structure and operation of its business that potentially detracts
from the Board’s broadly stated conclusion on appropriateness.
See Sundor Brands, Inc. v. NLRB, 168 F.3d 515, 519 (D.C. Cir.
1999); Op. at 16-18. Accordingly, I “express no opinion upon
the question whether the factors for which there is support in the
record could suffice by themselves to support the Board’s
present unit determination.” Sundor Brands, Inc., 168 F.3d at
520. But see Op. at 16. It remains open to the Board to reach
the same conclusion about the appropriateness of a companywide bargaining unit upon providing a reasoned explanation that
“take[s] into account whatever in the record fairly detracts from
its weight.” Universal Camera Corp., 340 U.S. at 488; see
NLRB v. Sw. Reg’l Council of Carpenters, 826 F.3d 460, 465-66
(D.C. Cir. 2016). There is no occasion to comment further, as
“clarity” in explication of its opinion, not particular formatting,
is what is asked of the Board. Shepard v. NLRB, 459 U.S. 344,
350 (1983) (quoting Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 197 (1941)). But see Concurring Op. (Henderson, J.).

Page 21 of 21