Tito Contractors Inc.

National Labor Relations Board - Unpublished Board Decisions

Sep 26, 2019

05-RC-117169 (N.L.R.B. Sep. 26, 2019)

1
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
TITO CONTRACTORS, INC.
Employer
and Case 05-RC-117169
INTERNATIONAL UNION OF PAINTERS
AND ALLIED TRADES, DISTRICT COUNCIL 51,
AFL-CIO
Petitioner
SUPPLEMENTAL ORDER DENYING REVIEW
The Employer's Request for Review of the Acting Regional Director's
Supplemental Decision and Certification of Representative is denied as it raises no
substantial issues warranting review.1

1 The Board has exercised its discretion to examine the entire record in evaluating the
Request for Review. See Sec. 102.67(e) of the Board’s Rules and Regulations.
In denying review, we reaffirm the applicability of the well-established principle that a
petitioned-for employer-wide unit is presumptively appropriate under the Act. See, e.g.,
Greenhorne & O’Mara, Inc., 326 NLRB 514, 516 (1998). In this case, it is therefore the
Employer’s burden to establish that the petitioned-for employer-wide unit is
inappropriate by showing “that the interests of a given classification are so disparate
from those of other employees that they cannot be represented in the same unit.” Airco,
Inc., 273 NLRB 348, 349 (1984) (citing E. H. Koester Bakery, 136 NLRB 1006, 1011
(1962)). We find that the Employer has failed to show that the Acting Regional Director
erred in finding that the Employer failed to meet its burden. We emphasize that, in
accord with the court’s remand in NLRB v. Tito Contractors, Inc., 847 F.3d 724 (D.C.
Cir. 2017), the Employer has now had an opportunity to present evidence at a hearing
in support of the three principal contentions made in its prior offer of proof to show that
the employer-wide unit is not appropriate. The evidence submitted fails to support each
of the three claims made in its offer. We agree with the Acting Regional Director that
the record establishes that there is no formal administrative division between the
Employer’s recycling and construction employees, that there is central control of labor
relations, that there is at least some interchange between petitioned-for employees, and
that neither the geographic dispersal of the worksites at issue nor the differences
among employees in their terms and conditions of employment are sufficient to rebut
the appropriateness of the unit.
Finally, with respect to the Acting Regional Director’s changed circumstances
analysis, we do not rely on the cases he cited involving appeals to changed
2
LAUREN McFERRAN, MEMBER
MARVIN E. KAPLAN, MEMBER
WILLIAM J. EMANUEL, MEMBER
Dated, Washington, D.C., September 26, 2019.

circumstances in the context of contesting a continuing bargaining obligation. Due to
the reopening of the representation case following the court’s remand, there is no
question of a continuing bargaining obligation before the Board at this juncture.