Rhino Northwest, LLC - Decision Summary

Rhino Northwest, LLC,Board Case No. 19-CA-160205 (reported at 363 NLRB No. 72) (D.C. Cir. decided Aug. 11, 2017)

In a published opinion that issued in this test-of-certification case, the Court enforced the Board’s bargaining order issued against this operator of an event-staffing business for venues throughout the State of Washington and occasionally in Oregon and Montana. In doing so, the Court rejected the Employer’s challenges to the Board’s standard clarified inSpecialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934, 943-47 (2011),enforced sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), and upheld the Board’s application of the standard in this case to find the unit of riggers that International Alliance of Theatrical Stage Employees, Local 15, petitioned to represent constituted an appropriate collective-bargaining unit.

In the underlying representation case, the Employer argued that a unit of riggers was not an appropriate unit because it did not include all event employees. After a hearing, the Regional Director applied the two-step standard ofSpecialty Healthcare. Under step one, the Regional Director concluded that the riggers are a readily identifiable group, share a community of interest, and constitute an appropriate unit. Under step two, the Regional Director concluded that the Employer failed to carry its burden of showing, as it had contended, that the excluded event employees share an “overwhelming community of interest” with the riggers, such that there was no legitimate basis upon which to exclude them. After the Board (then-Chairman Pearce and Members Hirozawa and McFerran) denied the Employer’s Request for Review, the Regional Director conducted a mail-ballot election among the riggers. The tally of ballots showed that a majority voted for representation, and the Regional Director certified the Union.

On review, the Court rejected the Employer’s argument that theSpecialty Healthcarestandard was contrary to the NLRA and Board precedent. The Court confirmed that the overwhelming-community-of-interest test, which the Board adopted from the Court’s decision inBlue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008), was simply a clarification of existing Board law, and not a departure from it. With that holding, the Court joined the seven other circuits that have reviewed and upheld the standard.See Constellation Brands, Inc.v. NLRB, 842 F.3d 784 (2d Cir. 2016);FedEx Freight, Inc. v. NLRB, 839 F.3d 636 (7th Cir. 2016);NLRB v. FedEx Freight, Inc., 832 F.3d 432 (3d Cir. 2016);Macy’s Inc. v. NLRB, 824 F.3d 557 (5th Cir.),reh’g en banc denied(2016),cert denied, 137 S. Ct. 2265 (2017);FedEx Freight, Inc. v. NLRB, 816 F.3d 515 (8th Cir.),reh’g & reh’g en banc denied(2016);Nestle Dreyer’s Ice Cream Co. v. NLRB, 821 F.3d 489 (4th Cir. 2016);Kindred Nursing Ctrs. East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013).

The Court then rejected a series of other challenges to the standard. For instance, contrary to the Employer’s assertion that the overwhelming-community-of-interest test could never be met, the Court discussed prior Board cases that found, both before and afterSpecialty Healthcare, that employers had met the standard. Further, the Court explained that the standard does not give controlling weight to the extent of organization in conflict with Section 9(c)(5) of the Act, and that, even if the Board had announced a new standard inSpecialty Healthcare, the Board would not have violated the Administrative Procedure Act by doing so in an adjudicatory proceeding, rather than by notice-and-comment rulemaking.

Reviewing the Board’s application of the standard, the Court held that substantial evidence supported the Board’s finding that the Employer had not met its burden underSpecialty Healthcare’s step two. Rather, the Court noted that the record evidence supported the Board’s finding given the significant distinctions between riggers and other event employees concerning wages, hours, training, supervision, equipment, and physical working conditions. Therefore, the Court held that the Board reasonably concluded that those distinctions “sufficiently ‘differentiate the employment interests’ of [the] riggers and non-riggers such that riggers may form their own bargaining unit,” quotingBlue Man Vegas, 529 F.3d at 424.

The Court’s opinion is here.