Argued: October 28, 2015
On Petition for Review of an Order of the National Labor Relations Board. (31-CA-74297)
Bernard J. Bobber, FOLEY & LARDNER LLP, Milwaukee, Wisconsin, for Petitioner/Cross-Respondent.
Gregory P. Lauro, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner. Matthew James Ginsburg, AFL-CIO, Washington, D.C., for Intervenor.
Ryan N. Parsons, FOLEY & LARDNER LLP, Milwaukee, Wisconsin, for Petitioner/Cross-Respondent.
Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Jill A.
Griffin, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Respondent/Cross-Petitioner.
Brian A. Powers, James B. Coppess, Washington, D.C., for Intervenor. Bernard P. Jeweler, Christopher R. Coxson, Harold P. Coxson, OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C., Washington, D.C.; Linda E. Kelly, Patrick N. Forrest, MANUFACTURERS' CENTER FOR LEGAL ACTION, Washington, D.C., for Amicus The National Association of Manufacturers.
Deborah White, RETAIL LITIGATION CENTER, INC., Arlington, Virginia; Jason C. Schwartz, Thomas M. Johnson, Jr., Alexander K. Cox, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Amicus Retail Litigation Center, Inc. Mark Theodore, Los Angeles, California, Ronald Meisburg, Joshua F. Alloy, PROSKAUER ROSE, LLP, Washington, D.C.; Kate Comerford Todd, Steven P. Lehotsky, U.S. CHAMBER LITIGATION CENTER, INC., Washington, D.C., for Amici Coalition for a Democratic Workplace, International Foodservice Distributors Association, National Association of Wholesaler-Distributors, National Council of Chain Restaurants, National Federation of Independent Business, National Retail Federation, Society for Human Resource Management, and The Chamber of Commerce of the United States.
Before SHEDD, DIAZ, and HARRIS, Circuit Judges.
DIAZ, Circuit Judge:
The National Labor Relations Board certified a collective-bargaining unit consisting of all maintenance employees at an ice-cream production facility operated by Nestle-Dreyer's Grand Ice Cream, Inc. Dreyer's contends that (1) the Board applied a legal standard that violated the National Labor Relations Act (the "NLRA") and otherwise represented an abuse of discretion; and (2) under the proper legal standard as well as the incorrect legal standard upon which the Board relied, production employees must be included in the petitioned-for unit. Because the Board did not violate the NLRA or abuse its discretion in certifying the maintenance-only unit, we deny Dreyer's petition for review and grant the Board's cross-petition for enforcement of its order.
At a production facility in Bakersfield, California, Dreyer's manufactures ice-cream products: cartons, cones, bars, and other frozen novelties. Known as the Bakersfield Operations Center (the "BOC"), the facility contains a factory with twenty-six production lines, a palletizing area and distribution center, warehouses for dry goods and frozen goods, and a machine shop for making and repairing parts for the production lines. It also houses a research and development center.
At the time relevant to this litigation, the BOC employed about 113 maintenance employees and 578 production employees. Most production employees work on the production lines, operating the manufacturing equipment, stacking the product on pallets, and storing it for distribution. Others work in pre-manufacturing, where they order materials and mix ingredients for the lines. Production employees generally work on a specific production line, and they do not work in the machine shop or the research and development center.
The majority of maintenance employees work on the production lines, where they are assigned to multiple production lines or the adjacent palletizing areas. They perform routine maintenance and as-needed repairs on the manufacturing equipment. The rest of the maintenance employees perform a variety of tasks throughout the BOC. Process technicians, who work in pre-manufacturing, assist with the computer-controlled mixing equipment and troubleshoot problems as they arise. The utilities group maintains the BOC's refrigeration systems, as well as its electrical, heating, plumbing, and ventilation systems. Other maintenance employees work as control technicians, in facilities maintenance, or in the machine shop.
On the production lines and in pre-manufacturing, maintenance and production employees sometimes work together. While production workers are trained to solve minor or routine technical problems-for example, simple packaging jams that can be fixed by removing the jammed material-their technical training is limited, and maintenance workers perform most repairs and routine maintenance. When production employees encounter technical problems they cannot solve, they call for the assistance of a maintenance employee. The maintenance employee diagnoses the problem and performs the repair, relying on input from the production worker. Every third shift, production ...