The opinion
United States Court of
Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 4, 2016 Decided May 20, 2016
No. 15-1081
IRONTIGER LOGISTICS, INC.,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with 15-1148
On Petition for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board
Thomas P. Krukowski argued the cause and filed the briefs
for petitioner.
Ruth E. Burdick, Deputy Assistant General Counsel,
National Labor Relations Board, argued the cause for
respondent. On the brief were Richard F. Griffin, Jr., General
Counsel, John H. Ferguson, Associate General Counsel, Linda
Dreeben, Deputy Associate General Counsel, Robert J.
2
Englehart, Supervisory Attorney, and Marni L. von Wilpert,
Attorney.
Before: TATEL and MILLETT, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SILBERMAN.
SILBERMAN, Senior Circuit Judge: IronTiger Logistics, a
company which ships trucks from manufacturers to retailers
around the country, petitions for review of an NLRB
determination that IronTiger violated 8(a)(5) and 8(a)(1) of the
NLRA when it failed to timely respond to a union request for
information the Board deemed presumptively relevant, even
though ultimately found irrelevant.
We reject Petitioner’s broad challenge to the Board’s policy
requiring an employer to timely respond to a union’s request for
information that is presumptively relevant, but nevertheless
remand to the Board for further explanation of why the specific
requests in this case were “presumptively relevant.”
I.
The relationship between the company and its union, the
International Association of Machinists, in the period leading up
to the General Counsel’s complaint against the company in this
case, was rather contentious. The company is a shipping firm
that transports trucks from Volvo/Mack and Navistar
manufacturing plants to retail outlets. It operates out of four
different locations, and employs roughly 100 drivers who are
represented by the union. But IronTiger does not contract with
the manufacturers. Rather, it provides its shipping as a service
to another company, TruckMovers, which actually contracts
3
with Volvo and Navistar. TruckMovers is a larger unorganized
company owned by the same person, Tom Duvall, who owns
IronTiger. He is also the CEO of both companies.
TruckMovers’ contracts with Volvo and Navistar permit
TruckMovers to itself transport loads or to subcontract to sixteen
other trucking companies, but no one company, including
TruckMovers itself, can be responsible for transporting more
than 75 percent of deliveries for Navistar or 80 percent for
Volvo (those provisions obviously prevent a total shutdown of
deliveries). When TruckMovers distributes work to IronTiger,
the order, or “load,” appears on a computer screen, or “kiosk,”
at the four IronTiger dispatch hubs.
The alleged unfair labor practice took place in 2010, during
which time the company and the union were parties to a
collective bargaining agreement which ran from 2008 to 2011.
The agreement contained a typical subcontracting clause that
prevented IronTiger from subcontracting work that its
employees could fulfill. It is undisputed that that clause was
designed to prevent IronTiger from sending to another carrier
(including sending back to TruckMovers) any load once it
appeared on IronTiger’s dispatch kiosk. But to avoid confusion
respecting TruckMovers’s role, the parties signed a letter
agreement providing “that loads not appearing on the
IronTiger...drivers’ kiosk are not IronTiger loads and will be
moved by carriers other than IronTiger Logistics and the
movement of such loads does not constitute Sub-Contracting.”
It was understood this meant that the union could not lay claim
to loads which TruckMovers sent to other shipping companies
or which were transported by TruckMovers itself.
In other words, the contractual triggering event, allowing
the union to claim bargaining unit work, was the placement of
a load on IronTiger’s kiosk. As it happened, in 2009 the union
4
filed a grievance, asserting that twice a load on a dispatch kiosk
had been sent back to TruckMovers. The company promptly
conceded that it had made a mistake and remedied the violation.
But a year later, on March 16, 2010, the union took a more
aggressive position, asserting that too few loads were coming to
IronTiger. The Machinists claimed that the company was
somehow not complying with the dispatch language in the
agreement. Duvall, the company’s President, insisted that “[a]ll
available IronTiger loads ARE placed on the Board for
dispatch,” and later “ [w]e don’t set the priorities. Our customer
does.” Without disputing factually what Duvall claimed,
Anderson, the union president, responded “enough of this
bullshit,” and “abide by the contract.” (In the meantime,
involving an unrelated dispute, Anderson demanded that the
company reinstate several employees; otherwise, he would
“make [Duvall’s] life hell.”)
Then, following up on its contract claim, the union filed a
formal grievance, but nevertheless declined to meet with the
company or proceed with the contract’s dispute resolution
procedure that led to arbitration. Instead, the union sent a
request for information on April 12, seeking the identification of
all loads dispatched to both the company and TruckMovers
drivers over the previous six months, the individuals responsible
for dispatching drivers for both companies, and documentation
explaining why loads were dispatched to TruckMovers drivers
and IronTiger drivers. Despite the request for information
relating to TruckMovers, as well as IronTiger, the company
named Dan Houk, a TruckMovers employee, as the one
responsible for dispatching TruckMovers drivers, as well as the
IronTiger employees who dispatched IronTiger drivers. The
company explained there was no documentation relating to the
dispatching; it was done by “system assignment” (presumably
electronically). The company also produced a list of over
5
10,000 loads that had been placed on IronTiger’s kiosk and
dispatched to IronTiger drivers over the last six months.1
That led to the union’s further request on May 11 – the
crucial one for our case. The union, referring to the company’s
response to the union’s April letter, asked seven questions
explicitly directed to TruckMovers personnel, including drivers
and dispatchers, as well as TruckMovers procedures.
Then, turning to the extensive list of over 10,000 loads
carried by IronTiger drivers, the union asked for:
(1) the name of each IronTiger driver dispatched for each
load;
(2) the destination and mileage for each load; and
(3) all e-mails, faxes “and other documentation from your
customers to support the loads dispatched to IronTiger
drivers.”
The company’s attorney, Tom Jones, meeting with Anderson on
an unrelated matter, referred to the May 11 request as asking for
“a lot of bullshit,” to which Anderson replied, “Yes I am, but I
need it.”
In the meantime, reflecting the tense relationship that had
developed between the parties, on May 13, Anderson asserted
that the collective bargaining agreement did not even cover two
of the four IronTiger dispatch terminals (where the kiosks were
situated). The union threatened to strike at those locations. The
company, responding, claiming the union was seeking an illegal
modification of the contract, filed a refusal to bargain, 8(b)(3),
charge against the union. Then the union, on July 15, filed a
refusal to bargain, 8(a)(5), charge against the company for
neglecting to respond to its May 11 request.
1
The company also noted that the union had indicated it planned
to organize TruckMovers.
6
The company did respond to the union’s May 11 request by
writing on September 27, stating – which was obvious – that the
first seven items in the union’s letter referred to TruckMovers
personnel and procedure, not anything to do with IronTiger. As
for the items relating to IronTiger’s operation, the company
asked what could be the relevance of the driver’s name and
destination of the completed 10,000 plus loads. “This request is
harassment, burdensome and irrelevant,” the company wrote.
With regard to communications from customers (presumably
TruckMovers), the company’s letter stated there were no written
communications from customers; requests were forwarded
electronically.
On September 30, the regional director 2 issued a complaint
against the union for a violation of 8(b)(3). Then, on December
22, the regional director (Solomon-like) issued a consolidated
complaint, including a charge against the company for violation
of 8(a)(5).
Before the hearing in front of an ALJ, the union settled and
posted a notice acknowledging its violation of 8(b)(3). The
union also conceded that the company’s response of September
27, if it had been a prompt response to the union’s request of
May 11, would have been adequate to establish that the union’s
request was for irrelevant information, but it maintained that at
least the last three items were presumptively relevant, and the
company’s delay in responding violated its obligation to bargain
– 8(a)(5).
The ALJ, whose recommended decision was essentially
adopted by the Board (with one dissent), had little difficulty
agreeing with the company that the first seven items in the May
11 request from the union were not only irrelevant, they were
2
Acting, of course, for the General Counsel.
7
presumptively irrelevant because they related only to
TruckMovers, not IronTiger. He also thought the last three
items were irrelevant; they had nothing to do with “the
grievance relating to failure to place all loads on the IronTiger
kiosk.” Moreover, he concluded that information relating to
assigned IronTiger driver destinations and distances was not
relevant. (He did not address the request for communications
from customers.) He pointed out that Anderson’s concession to
Jones (the company’s lawyer) that the information sought was
“bullshit” and “absent an explanation regarding why the
information was needed, confirms my finding that the
information requested was irrelevant.”
Nevertheless, because the last three items sought were
regarded as related to “unit employees,” they were
presumptively relevant according to the ALJ, and the company’s
delay in responding was a refusal to bargain. As noted, the
Board adopted the ALJ’s recommended decision.
II.
We have little difficulty rejecting Petitioner’s broad-scale
challenge to the Board’s legal policy. The company objects to
the Board’s “rule” that a company must respond in a timely
fashion to a union’s request for presumptively relevant
information, even if it should turn out that the information is
irrelevant. In other words, according to the Board, the burden
switches to a company to respond to a union’s request for
presumptively relevant information. We have previously
approved the Board’s policy holding that some information is so
central to the core of the employer-employee relationship that it
is deemed presumptively relevant. See Oil, Chem. & Atomic
Workers Local Union No. 6-418 v. NLRB, 711 F.2d 348, 359
(D.C. Cir. 1983). And, although we have previously held only
that an employer must timely respond to a union’s request for
8
relevant information, see N.Y. & Presbyterian Hosp. v. NLRB,
649 F.3d 723, 730 (D.C. Cir. 2011), we have no basis to quarrel
with the majority of the Board’s extension in this case, to the
proposition that an employer must timely respond to a request
for presumptively relevant information. This is the sort of legal
and policy determination to which we are obliged to defer. See
Crowley Marine Servs., Inc. v. NLRB, 234 F.3d 1295, 1297
(D.C. Cir. 2000). (We understand that the Board’s burden-
shifting rule does not saddle the employer with a heavy burden.)
There remains the question whether the union’s request for
information – specifically the last three items in the May 11
letter – was presumptively relevant. There appears to us to be
an obvious defect in the ALJ and Board’s reasoning, even if one
accepts the breadth of its legal proposition that any information
relating to the bargaining unit employees is presumptively
relevant. The ALJ never discusses the last request for
communications between IronTiger and their customer(s)
(presumably TruckMovers). We cannot imagine why such
information could be considered presumptively relevant since it
does not at all relate, by any stretch, to bargaining unit
employees. Neither the ALJ nor the Board answers that
question.3
Putting aside that Board omission, it is conceded that the
first seven items – focusing as they did on TruckMovers – were
obviously irrelevant. The shift in the letter to IronTiger
operations appears rather peculiar because it is apparently
inconsistent with the thrust of the letter. To be sure, the Board
has held that a request for presumptively relevant information
3
Cf. Disneyland Park, 350 N.L.R.B. 1256, 1258 (2007), holding
that a union is not presumptively entitled to subcontracting agreements
“even those relating to bargaining unit employees’ terms and
conditions of employment.”
9
can be included with presumptively irrelevant information, and
the burden of responding to the request for the presumptively
relevant information would still be placed on an employer. See
Oil, Chem. & Atomic Workers, 711 F.2d at 361. Still, the request
must have seemed fishy to the Petitioner because not only did
those items have no connection with the TruckMovers
information, it did not seem to have any connection to any issue
between the company and the union. Recall when the
company’s lawyer described the letter as “bullshit,” Anderson,
the union representative, agreed, and although he insisted he
wanted it, he did not suggest why he wanted the information.
Indeed, the ALJ relied on that conversation to bolster his
conclusion that the last three items were, in fact, irrelevant; i.e.,
that the union had not indicated any need for it. In other words,
the ALJ, faced with exactly the same information the company
had on May 13, concluded that the union’s request was
irrelevant. The Board should explain why, then, that request
should be regarded as presumptively relevant.
In the company’s September 27 letter – which all parties
agree was an adequate response – the “bullshit” comment was
elaborated. The company claimed, then and before the ALJ and
Board, that the union was seeking to harass the company by
asking for obviously burdensome and irrelevant material. It
appears to us that the company’s complaint may have been
justified, yet neither the ALJ nor the Board ever squarely
responded to Petitioner’s contention.4 We think the Board must
consider both the Petitioner’s defense and the implication of a
4
The ALJ noted that the company responded to the April 12
request without claiming harassment, but that is a non sequitur. It was
the union’s follow-up inquiry on May 11, particularly directed to the
massive list in paragraph 5 of units dispatched, that could be thought
transparently irrelevant and harassing.
10
rule that would permit a union to harass an employer by
repeated and burdensome requests for irrelevant information
only because it can be said it somehow relates to bargaining unit
employees – without even a union’s statement of its need.
* * *
We remand to the Board for further proceedings.
So ordered.