Rhino Northwest, LLC v. National Labor Relations Board
2017 U.S. App. LEXIS 14884
| D.C. Cir. | 2017Background
- Rhino Northwest, LLC provides staging services for events; a group of its employees known as "riggers" sought union representation at Rhino’s Fife, WA facility.
- The Union petitioned the NLRB to represent a unit composed solely of riggers; Rhino argued the unit should include many other job classifications (stagehands, lighting, audio, etc.).
- The NLRB regional director found the riggers to be a prima facie appropriate unit (readily identifiable and sharing a community of interest) and held the excluded employees did not share an "overwhelming community of interest" with riggers; an election followed and the riggers voted to unionize.
- Rhino refused to bargain with the certified riggers’ union and the NLRB found that refusal unlawful; Rhino challenged the Board’s certification and the Board sought enforcement.
- Key factual distinctions: riggers have unique training (three-day course), unique duties (suspending objects overhead with motors), different supervision (own rigger supervisor deemed a statutory supervisor), higher wages, different reimbursement, different tools, and different work/hours (may leave once rigging tasks finish).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NLRB’s "overwhelming community of interest" standard (Specialty Healthcare) is valid | Specialty Healthcare is a new, unlawful standard that departs from statutory duty and should be invalidated | The standard simply clarifies prior Board and court precedent and is a permissible adjudicative formulation | Court upheld the standard as consistent with precedent and permissible in adjudication |
| Whether the riggers-only unit is inappropriate because excluded employees share an "overwhelming community of interest" with riggers | Rhino: riggers and other classifications perform integrated work and thus riggers cannot be a separate unit | Board: distinctions in training, duties, supervision, wages, tools, hours create legitimate bases to exclude others | Court found substantial evidence that riggers do not share an overwhelming community of interest with excluded employees; riggers-only unit appropriate |
| Whether Board unlawfully gave controlling weight to the extent employees had organized | Rhino: Specialty Healthcare improperly privileges preexisting organization in unit determinations | Board: extent of organization is considered but not controlling and is applied only after prima facie appropriateness is found | Court held Board did not give controlling weight to organization and applied the test properly |
| Whether the Board’s adoption of the standard violated the APA by using adjudication instead of rulemaking | Rhino: substantive new standard required notice-and-comment rulemaking | Board: courts and Supreme Court permit agency to announce principles in adjudication; Specialty Healthcare clarified existing law | Court held no APA violation; adjudication permissible and Specialty Healthcare clarified rather than invented a new test |
Key Cases Cited
- Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008) (articulated the "overwhelming community of interest" concept for underinclusive units)
- Country Ford Trucks, Inc. v. NLRB, 229 F.3d 1184 (D.C. Cir. 2000) (Board need only select an appropriate unit, not the most appropriate)
- Dodge of Naperville, Inc. v. NLRB, 796 F.3d 31 (D.C. Cir. 2015) (deferential review of Board unit determinations)
- NLRB v. Metro. Life Ins. Co., 380 U.S. 438 (1965) (Board may consider extent employees have organized though it is not controlling)
- Trident Seafoods, Inc. v. NLRB, 101 F.3d 111 (D.C. Cir. 1996) (unit irrational where no separate community of interest justified it)
- NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974) (agency may announce new principles in adjudication)
- NLRB v. Action Auto., Inc., 469 U.S. 490 (1985) (recognizing benefits of cohesive, smaller bargaining units where appropriate)