Ups Ground Freight, Inc . v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 21, 2019 Decided April 19, 2019
No. 18-1161
UPS GROUND FREIGHT, INC .,
P ETITIONER
v.
NATIONAL LABOR R ELATIONS BOARD ,
R ESPONDENT
INTERNATIONAL BROTHERHOOD OF T EAMSTERS LOCAL UNION
NO. 773,
INTERVENOR
Consolidated with 18-1182
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Kurt G. Larkin argued the cause and filed the briefs for
petitioner. James P. Naughton entered an appearance.
David R. Broderdorf and Jonathan C. Fritts were on the
brief for amici curiae UPS Ground, et al. in support of
petitioner.

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Mark W. Mosier, Kevin King, Steven P. Lehotsky, 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, S RINIVASAN , Circuit
Judge, and R ANDOLPH , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge S RINIVASAN.
S RINIVASAN , 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.
I.
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

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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.
II.
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

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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.

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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

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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 Cappetta was not a statutory supervisor. Thus,
UPS Ground cannot demonstrate the requisite “prejudice” from
any of those alleged errors. Salem Hosp., 808 F.3d at 70.
Nor do any of UPS Ground’s other objections carry the
day. For example, UPS Ground argues that the pre-election
hearing timeline was abusive because it allotted only eleven
days to prepare for the hearing. The Acting Regional Director,
though, was required by regulation to schedule the pre-election
hearing on the eighth day after the Union petition. See 29
C.F.R. § 102.63(a)(1). Further, the Acting Regional Director
partially granted UPS Ground’s motion for a two-business-day
postponement of the pre-election hearing. The Acting
Regional Director did not abuse his discretion by complying
with the regulation. And the decision to postpone the hearing
by one business day, but not two, is in the heartland of his
discretion. That timeline also comported with due process.
Even assuming that due process requires any pre-election
hearing whatsoever, but see Inland Empire Dist. Council v.
Millis, 325 U.S. 697, 710 (1945), an eight-day notice accords
with both the Due Process Clause and UPS Ground’s statutory
right to an “appropriate” hearing, 29 U.S.C. § 159(c)(1).

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Next, UPS Ground argues that it was prejudiced by the
timeline because it was required to file a Statement of Position
on the business day before the hearing. UPS Ground, though,
cannot show any prejudice from that requirement, as the
Statement of Position is not binding. The Regional Director
“may permit the employer to amend its Statement of Position
in a timely manner for good cause.” 29 C.F.R. § 102.63(b)(1).
Nor does the Statement of Position preclude the Regional
Director from “direct[ing] the receipt of evidence concerning
any issue . . . as to which the regional director determines that
record evidence is necessary.” Id. § 102.66(b). And despite
UPS Ground’s contention that its Statement of Position limited
it to calling only certain witnesses at the pre-election hearing,
at no point during this litigation has UPS Ground ever
identified any additional witnesses it would have called at the
hearing.
UPS Ground also challenges various rulings made by the
hearing officer during the pre-election hearing—specifically,
that the hearing officer asked UPS Ground for certain
documents that UPS Ground did not possess, denied UPS
Ground’s request to grant a one-day adjournment for
preparation for closing arguments, and refused the filing of
posthearing briefs. None of those rulings was an abuse of
discretion. A demand for documents is not an adverse ruling,
in any sense. The denial of an adjournment was entirely proper,
especially given that the regulations do not require even a
recess prior to closing arguments. See 29 C.F.R. § 102.66(h).
And UPS Ground had no entitlement to posthearing briefs,
which “shall be filed only upon special permission of the
regional director.” Id.
The Acting Regional Director also properly directed a
mail-ballot election. A mail-ballot election is proper when
voters are “scattered” over a wide area or across different work

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schedules. San Diego Gas & Elec., 325 NLRB 1143, 1145
(1998). In this case, the Acting Regional Director reasonably
determined that the employees travel long distances and that
traffic and weather conditions, particularly in winter, might
hinder employees from returning to the facility in time to
permit them to vote. The Acting Regional Director reasonably
rejected UPS Ground’s alternative proposal—to arrange
drivers’ work schedules so they could vote before leaving on
their assigned routes—which, by UPS Ground’s own
characterization, would have ensured the ability to vote only of
“most of [the drivers] before they go.” J.A. 320 (emphasis
added). And the mail-ballot election did not impermissibly
restrict UPS Ground’s right to campaign. The Act proscribes
only mass captive-audience assemblies (for employer and
union alike) during a mail-ballot election. See San Diego Gas,
325 NLRB at 1146. UPS Ground was still free to campaign
via other means. More generally, it is difficult to imagine any
prejudice arising from the choice of a mail-ballot election when
94% of eligible voters cast ballots and those ballots
overwhelmingly favored unionization. Cf. Kwik Care Ltd. v.
NLRB, 82 F.3d 1122, 1127 (D.C. Cir. 1996).
Finally, the Acting Regional Director did not abuse his
discretion by declining to decide, before the election, whether
two employees in disputed job classifications (safety
instructors and dispatchers) were part of the bargaining unit. It
is common practice to permit such employees to vote under
challenge. See Kirkhill Rubber Co., 306 NLRB 559, 559
(1992). Nor does that practice imperil the bargaining unit’s
right to make an informed choice, so long as the notice of
election—as happened here—“alert[s] employees to the
possibility of change” to the definition of the bargaining unit.
Sears, Roebuck & Co. v. NLRB, 957 F.2d 52, 55 (2d Cir. 1992).

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* * * * *
For the foregoing reasons, we deny the petition for review
and grant the Board’s cross-application for enforcement.
So ordered.

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