Tito Contractors, Inc - Decision Summary
Tito Contractors, Inc., Board Case No.05-CA-149046 (reported at 362 NLRB No. 119) (D.C. Cir. decided February 3, 2017)
In a published opinion in this test-of-certification case, the court granted the petition for review filed by this provider of general contracting, construction, painting, and recycling services in the District of Columbia and nearby suburban Maryland, and remanded the case to the Board for further proceedings. Specifically, the court held that the Board had failed to consider evidence pointing to the absence of a community of interest among the employees in the employer-wide unit that the International Union of Painters and Allied Trades, District Council 51, AFL-CIO, was later certified to represent.
At the pre-election hearing on its challenge to the petitioned-for unit, the Employer made an offer of proof describing the varying aspects of its business, including the different contracting and recycling sides of its business, as well as the different types of work performed by the employees at different locations including a warehouse and a maintenance office, with laborer jobs out in the field ranging from repairs to construction to snow removal, as well as recycling related positions at a number of different Maryland facilities. After receiving the Employer’s offer of proof, the hearing officer ruled that, given the Union had petitioned for a wall-to-wall unit that is presumed appropriate, the Employer’s offer of proof was insufficient to overcome the presumption. Thereafter, the Board’s Acting Regional Director issued a decision finding the petitioned-for unit appropriate and directing an election. The Employer filed a request for review with the Board challenging the appropriateness of the unit, and meanwhile, a mail ballot election was conducted for a two-week period in spring 2014 and the ballots were impounded pending resolution of the request for review. Subsequently, the Board denied review, noting the presumptive appropriateness of an employer-wide unit and Employer’s failure to overcome it. The Board also briefly noted some commonalities among members of the unit, the lack of any bargaining history with smaller units, the common geographical region in which the employees worked, and the fact that no party had suggested an alternative unit.
On review, in deciding the first of the Employer’s key contentions, the court (Judges Henderson and Rogers, and Senior Judge Ginsburg) gave controlling weight to the Board’s application of its own rules and rejected the Employer’s procedural contention that the offer-of-proof requirement applied by the hearing officer failed to afford it fair opportunity to present its position. On the Employer’s second contention, however, the court agreed with the Employer that the Board’s order was not supported by substantial evidence because it “does not discuss the portions of [the Employer]’s offer of proof which plainly showed no community of interest.” Specifically, the court stated that the offer of proof contained three types of evidence contradicting the Board’s conclusion: the two halves of the business, the lack of interchange among the different types of employees, and significant differences among the employees’ wages, hours, and other working conditions.
Judge Henderson, in a short concurring opinion, wrote to state her view that the Board would be better served by not, as here, issuing an order that included only two sentences of text and a footnote of analysis, or “continue to run the risk of a court-imposed re-do.” Judge Rodgers echoed that sentiment in a separate concurring opinion, stating that the brevity of the challenged decision “makes it difficult to discern the Board’s rationale,” but also emphasized that on remand the Board potentially could reach the same conclusion about the appropriateness of an employer-wide unit “upon providing a reasoned explanation that ‘take[s] into account whatever in the record fairly detracts from its weight,’” citingUniversal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951).
The court’s opinion ishere .