United States Court of Appeals, District of Columbia Circuit
March 21, 2019
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board
G. Larkin argued the cause and filed the briefs for
petitioner. James P. Naughton entered an appearance.
R. Broderdorf and Jonathan C. Fritts were on the brief for
amici curiae UPS Ground, et al. in support of petitioner.
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.
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, Srinivasan, Circuit Judge, and
Randolph, Senior Circuit Judge.
SRINIVASAN, CIRCUIT JUDGE:
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
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
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.
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.
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.
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 ...