PCC Structurals, Inc. v. NLRB ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 19-1256 September Term, 2020
FILED ON: MARCH 16, 2021
PCC STRUCTURALS, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL LODGE 63,
INTERVENOR
Consolidated with 20-1011
On Petition for Review and Cross-Application for Enforcement
of an Order of the National Labor Relations Board
Before: WILKINS and KATSAS, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
JUDGMENT
The Court has considered this appeal on the administrative record and on the parties’ briefs
and oral argument. The Court has accorded the issues full consideration and has determined they
do not warrant a published opinion. See FED. R. APP. P. 36; D.C. CIR. R. 36(d). It is
ORDERED that the petition for review be DENIED and the cross-application for
enforcement be GRANTED.
The National Labor Relations Board held that PCC Structurals, Inc. committed an unfair
labor practice by refusing to bargain with the International Association of Machinists and
Aerospace Workers, the union representing three groups of welders employed at two PCC
facilities. PCC refused to bargain in order to obtain judicial review of a prior decision, made by a
Regional Director and undisturbed by the Board, that the welders are an appropriate bargaining
unit under the National Labor Relations Act. We deny PCC’s petition for review and grant the
Board’s cross-application for enforcement.
We review NLRB unit determinations deferentially, for the Board “need only select an
appropriate unit, not the most appropriate unit.” S. Power Co. v. NLRB, 664 F.3d 946, 951 (D.C.
Cir. 2012) (cleaned up); see 29 U.S.C. § 159(b). Nonetheless, we still “must consider whether the
Board’s findings of fact are supported by substantial evidence and whether its reasoning is
arbitrary and capricious.” Int’l Longshore & Warehouse Union v. NLRB, 971 F.3d 356, 360 (D.C.
Cir. 2020) (cleaned up).
The Regional Director ruled that the unit of welders was appropriate under either of two
balancing tests, the “community of interests” test and the “craft unit” test. The community-of-
interests test looks to whether the employees in a proposed unit (1) are organized into a separate
department, (2) have distinct skills and training, (3) perform distinct work, (4) are functionally
integrated with other employees, (5) have frequent contact with other employees, (6) interchange
with other employees, (7) have distinct terms of employment, and (8) are separately supervised.
United Operations, Inc., 338 N.L.R.B. 123, 123 (2002). The craft-unit test considers whether the
employees (1) engage in a formal training or apprenticeship program, (2) perform work
functionally integrated with that of other employees, (3) have duties that overlap with those of
other employees, (4) receive work assignments according to need rather than on craft or
jurisdictional lines, and (5) share common interests with other employees. MGM Mirage, 338
N.L.R.B. 529, 532 (2002).
A three-member panel of the Board denied further review. In doing so, one two-member
majority concluded that the unit was appropriate under the community-of-interests test, while a
different two-member majority concluded that the unit was appropriate under the craft-unit test.
At oral argument, PCC acknowledged that upholding the unit determination under one test would
have no legal or practical difference from upholding it under the other. We reject PCC’s various
challenges to the unit determination.
PCC contends that neither majority opinion offered a reasoned analysis. We read each
opinion as adopting the Regional Director’s analysis under one of the two tests. The craft-unit
majority expressly agreed with the Regional Director that the unit was appropriate under the craft-
unit test. And although the community-of-interests majority did not expressly endorse the
Regional Director’s decision, it explained that “the Regional Director relied on … the community-
of-interest analysis” before concluding that the unit was appropriate under that test. J.A. 1309 n.1.
In similar circumstances, we have inferred that the Board, by restating a regional director’s
conclusions, adopted his decision. NBCUniversal Media, LLC v. NLRB, 815 F.3d 821, 828 (D.C.
Cir. 2016). Alternatively, for terse denials of review, we would look through the denial to directly
review the Regional Director’s decision. See Pearson Educ., Inc. v. NLRB, 373 F.3d 127, 131
(D.C. Cir. 2004).
The Regional Director’s decision was adequately reasoned. PCC argues that the Regional
Director improperly collapsed the two tests by applying them simultaneously. But the Regional
Director treated the two tests as distinct; he discussed the tests separately at the outset, and he
concluded by separately weighing the factors of each test. Given the substantial overlap between
the tests, he sensibly discussed the common factors together to avoid redundancy.
As to the community-of-interest holding, PCC contends that the Regional Director made
findings unsupported by substantial evidence and that the Board failed to apply its intervening
2
decision in Boeing Co., 368 N.L.R.B. No. 67 (2019). But PCC discusses only three of the eight
factors in the test, leaving unchallenged much of the evidence that supports the Regional Director’s
findings—including the distinct wages, skills, training, and job duties that distinguish the welders
from other workers. And we cannot consider whether the Board erred in failing to apply Boeing
because PCC did not ask the Board to consider that decision. See 29 U.S.C. § 160(e)–(f).
As to the craft-unit holding, PCC again challenges the Regional Director’s findings without
discussing the ample evidence supporting them. For example, PCC contends that the welders were
functionally integrated with its broader workforce because they do grinding work alongside other
employees, but it does not mention that the Regional Director found that grinding was only a small
percentage of the welders’ duties. Similarly, PCC highlights that the welders do not need a formal
apprenticeship, but it fails to address the Regional Director’s finding that they still must acquire
specialized skill and experience. PCC next contends that the Board invoked inapposite craft-
severance decisions, which apply a different standard for separating skilled workers from a
preexisting bargaining unit. See CF Braun & Co., 120 N.L.R.B. 282 (1958); Hughes Aircraft Co.,
117 N.L.R.B. 98 (1957). We find no reversible error from the Board’s citing those decisions as
merely instructive on whether welders constituted craft workers, a question implicated in both
craft-unit and craft-severance disputes. Finally, we reject PCC’s argument that it was deprived of
due process because the Regional Director did not provide notice that he was considering the craft-
unit test. As noted above, the two tests have considerable overlap. And absent any colorable
defense under the craft-unit test, PCC cannot show that any lack of notice was prejudicial, which
is necessary to establish a due-process violation in this context. See Davis Supermarkets, Inc. v.
NLRB, 2 F.3d 1162, 1169 (D.C. Cir. 1993).
For these reasons, we deny the petition for review and grant the Board’s cross-application
for enforcement. The Clerk is directed to withhold issuance of the mandate until seven days after
resolution of any timely petition for rehearing or rehearing en banc. See FED. R. APP. P. 41(b);
D.C. CIR. R. 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
3