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UPS Ground Freight, Inc. v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

April 19, 2019

UPS Ground Freight, Inc., Petitioner
v.
National Labor Relations Board, Respondent International Brotherhood of Teamsters Local Union, Intervenor

          Argued March 21, 2019

          On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board

          Kurt G. Larkin argued the cause and filed the briefs for petitioner. James P. Naughton entered an appearance.

          David R. Broderdorf and Jonathan C. Fritts were on the brief for amici curiae UPS Ground, et al. in support of petitioner.

          Mark 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.

          Eric 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.

          OPINION

          SRINIVASAN, CIRCUIT JUDGE:

         UPS 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 enforcement.

         I.

         UPS 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.

         The 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.

         On July 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.

         Subsequently, 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 ...


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