National Labor Relations Board v. Tito Contractors, Inc.
2017 U.S. App. LEXIS 1931
| D.C. Cir. | 2017Background
- Tito Contractors, a D.C.-based company, operates two distinct businesses: a labor/contract side (painters, masons, carpenters, mechanics, one warehouse employee) and a recycling services side (≈57 employees at multiple Maryland recycling facilities under contracts with MES).
- The Union petitioned to represent all eligible Tito employees in a company-wide ("wall-to-wall") unit, excluding supervisors and certain managerial categories.
- At the NLRB hearing the hearing officer required an offer of proof rather than live testimony on unit appropriateness; Tito objected and the HO rejected much of the proffered evidence and did not allow further testimony on that issue.
- The Acting Regional Director and the Board upheld the offer-of-proof procedure, found the employer-wide unit presumptively appropriate, denied further review, and a mail ballot election followed in which the Union prevailed; the Board later certified the Union and ordered Tito to bargain after rejecting Tito’s objections.
- The D.C. Circuit granted Tito’s petition for review, concluding the Board failed to adequately account for record evidence showing lack of a community of interest (distinct operations, little/no interchange, differing wages/benefits) and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument (Tito) | Defendant's Argument (NLRB/Union) | Held |
|---|---|---|---|
| Whether the HO’s use of an offer-of-proof (and refusal to admit live testimony) violated the Board’s duty to develop a full record | Offer-of-proof deprived Tito of its right under §9(c) and Board regulations to fully present witnesses/evidence on unit appropriateness | Board and Casehandling Manual allow offer-of-proof where a presumptively appropriate unit is sought; HO acted within discretion | Court upheld the offer-of-proof procedure generally but found its application here did not resolve the substantive unit issue and remanded for further consideration of the record |
| Whether a company-wide (wall-to-wall) bargaining unit was appropriate given Tito’s mixed operations | Company-wide unit inappropriate: business divided into labor and recycling sides; minimal interchange; materially different wages, benefits, supervision, and work sites | Presumption favors employer-wide unit; employees work in same geographic region and perform skilled/unskilled physical work; employer didn’t propose an alternative unit | Court held Board’s finding was not supported by substantial evidence because it failed to account for record evidence showing lack of community of interest; remanded |
| Whether the Board impermissibly gave controlling weight to the extent of union organization (i.e., the presumption amounts to prohibited control under §9(c)(5)) | Presumption improperly privileges the union’s organizing effort in violation of §9(c)(5) | The presumption is modest and does not give controlling weight to union organization | Court rejected Tito’s statutory challenge to the presumption — presumption permissible and not equivalent to giving controlling weight to organization |
Key Cases Cited
- NLRB v. Action Auto., 469 U.S. 490 (broad deference to Board’s unit-selection discretion)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (courts must consider contradictory record evidence when assessing substantial evidence)
- Rush Univ. Med. Ctr. v. NLRB, 833 F.3d 202 (deference to Board interpretation of its own procedures unless plainly erroneous)
- Ozark Automotive Distribs. v. NLRB, 779 F.3d 576 (HO must balance employer needs and employee privacy when subpoena/confidentiality issues affect evidence)
- Lakeland Bus Lines, Inc. v. NLRB, 347 F.3d 955 (substantial-evidence review requires accounting for record evidence that detracts from Board’s conclusion)
- United Food & Commercial Workers v. NLRB, 519 F.3d 490 (community-of-interest framework and relevant factors for unit appropriateness)