NLRB v. Tito Contractors, Inc., No. 15-1217 (D.C. Cir. 2017)Annotate this Case
After Tito refused to bargain with the Union, the Union filed an unfair labor practice complaint. The Board eventually granted summary judgment, ordering Tito to bargain with the Union. Tito petitioned for review and the Board cross-applied for enforcement of its order. At issue is what bargaining unit is appropriate when so varied a workforce seeks union representation. The Board concluded that Tito's employees should be included in a "wall-to-wall" bargaining unit. The court concluded that the Board failed to consider evidence pointing to the absence of the required "community of interest" among them. In this case, the Board's order is not supported by substantial evidence where the Board failed to recognize the unchallenged assertion that Tito's business comprised two discrete halves—a labor side and a recycling services side; the Board failed to consider the lack of interchange among the different types of Tito employees; and the Board overlooked the significant differences among Tito's employees' wages, hours, and other working conditions. Accordingly, the court granted the petition for review, denied the application for enforcement, and remanded for further proceedings.