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IronTiger Logistics, Inc. v. National Labor Relations Board

United States Court of Appeals, District of Columbia Circuit

May 20, 2016

IRONTIGER LOGISTICS, INC., PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD, RESPONDENT

         Argued April 4, 2016.

          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. Englehart, Supervisory Attorney, and Marni L. von Wilpert, Attorney.

         Before: TATEL and MILLETT, Circuit Judges, and SILBERMAN, Senior Circuit Judge.

          OPINION

         Silberman, Senior Circuit Judge:

         IronTiger Logistics, a company which ships trucks from manufacturers to retailers around the country, petitions for review of an N.L.R.B. 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 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 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 ...


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