United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 21, 2019 Decided April 19, 2019

No. 18-1161

UPS GROUND FREIGHT, INC.,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL UNION 

NO. 773,

INTERVENOR

Consolidated with 18-1182

On Petition for Review and Cross-Application

for Enforcement of an Order of 

the National Labor Relations Board

Kurt G. Larkin argued the cause and filed the briefs for 

petitioner. James P. Naughton entered an appearance. 

David R. Broderdorf and Jonathan C. Fritts were on the 

brief for amici curiae UPS Ground, et al. in support of 

petitioner. 
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Mark W. Mosier, Kevin King, Steven P. Lehotsky, and 

Michael B. Schon were on the brief for amicus curiae The 

Chamber of Commerce of the United States of America in 

support of petitioner and cross-respondent.

Eric Weitz, Attorney, National Labor Relations Board, 

argued the cause for respondent. With him on the brief were 

Peter B. Robb, General Counsel, John W. Kyle, Deputy General 

Counsel, David Habenstreit, Associate General Counsel, and 

Kira Dellinger Vol, Supervisory Attorney.

Before: GARLAND, Chief Judge, SRINIVASAN, Circuit 

Judge, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SRINIVASAN.

SRINIVASAN, Circuit Judge: UPS Ground Freight, Inc. 

challenges the certification of a union at its Kutztown, 

Pennsylvania distribution facility. The National Labor 

Relations Board rejected UPS Ground’s challenges to the 

union’s certification and then determined that the company 

committed unfair labor practices by declining to bargain with 

the union. UPS Ground now seeks review in this court. We 

deny UPS Ground’s petition for review and grant the Board’s 

cross-application for enforcement.

I.

UPS Ground Freight, Inc., a subsidiary of United Parcel 

Service, Inc., provides transportation and delivery services 

throughout the United States. On December 10, 2015, 

International Brotherhood of Teamsters, Local 773, filed a 

petition with the Board seeking a representation election 

among all drivers at UPS Ground’s distribution center in 

Kutztown, Pennsylvania. The Acting Regional Director 
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scheduled a pre-election hearing for December 21, at which the 

parties presented evidence on the supervisory status of Frank 

Cappetta, one of the drivers employed at the Kutztown center. 

On January 5, 2016, the Acting Regional Director directed a 

mail-ballot election at the Kutztown distribution center. The 

Acting Regional Director did not rule on the supervisory status 

of Cappetta. 

The election occurred between January 11 and January 29. 

By a vote of twenty-seven to one, the employees voted in favor 

of representation by the union. UPS Ground sought review 

with the National Labor Relations Board.

On July 27, 2017, the Board issued a Decision on Review 

and Order. The Board found that Cappetta was not a statutory 

supervisor and that, in the alternative, he did not engage in 

objectionable conduct if he were a supervisor. On all other 

grounds, the Board denied review. 

Subsequently, the Union made a formal request to bargain, 

and UPS Ground refused. The Board’s General Counsel issued 

an unfair-labor-practice complaint, and the Board found that 

UPS Ground had committed unfair labor practices by refusing 

to bargain. UPS Ground petitions this Court for review, and

the Board cross-petitions this Court for enforcement. 

II.

Because UPS Ground has not identified a defect in the 

Board’s decision to certify the Union, we deny UPS Ground’s 

petition for review and grant the Board’s cross-application for 

enforcement.

First, the Board certified an appropriate bargaining unit. 

Under the Act, a bargaining representative must be selected “by 
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the majority of the employees in a unit appropriate for 

[collective bargaining] purposes.” 29 U.S.C. § 159(a) 

(emphasis added). “The Board need only select an appropriate 

unit, not the most appropriate unit.” Cleveland Constr., Inc. v. 

NLRB, 44 F.3d 1010, 1013 (D.C. Cir. 1995) (emphases added). 

Under controlling Board precedent, a single-facility bargaining 

unit is “presumptively appropriate.” Cmty. Hosps. of Cent. 

Cal. v. NLRB, 335 F.3d 1079, 1084 (D.C. Cir. 2003). To assess 

that presumption in a given case, the Board considers 

“geographic proximity, employee interchange and transfer, 

functional integration, administrative centralization, common 

supervision, and bargaining history.” Id. at 1085 (quoting W. 

Jersey Health Sys., 293 NLRB 749, 751 (1989)). 

Here, the Acting Regional Director reasonably found (and 

the Board ratified) that those factors favored a single-facility 

bargaining unit, rather than a unit encompassing all of UPS 

Ground’s facilities. In particular, the Acting Regional Director 

reasonably relied on “the significant evidence of local 

autonomy over labor relations matters at the Kutztown facility” 

and “the considerable distance between the Kutztown facility 

and the other facilities.” J.A. 677. We see no basis to set aside 

the Board’s choice of bargaining unit. 

Second, the Board reasonably determined that Cappetta 

was an “employee” under the Act and not a statutory 

“supervisor” who would be excluded from the Act’s 

protections. Generally, if a supervisor’s conduct “reasonably 

tends to have such a coercive effect on . . . employees that it is 

likely to impair their freedoms of choice in the election,” that 

conduct can taint an election and require its results to be set 

aside. Salem Hosp. Corp. v. NLRB, 808 F.3d 59, 63 (D.C. Cir. 

2015) (alterations omitted). Here, however, the Board properly 

concluded that Cappetta was not a supervisor, which renders 

irrelevant the question of taint.
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UPS Ground argues that Cappetta performed four 

supervisory functions—namely, that he assigned work, made 

hiring recommendations, directed employees, and adjusted 

grievances. The Board reasonably rejected each of those 

claims. The authority to assign work requires that the 

employee “ha[ve] the ability to require that a certain action be 

taken.” Golden Crest Healthcare Ctr., 348 NLRB 727, 729 

(2006). And the evidence supports the conclusion that 

Cappetta lacked the authority to require a driver to accept a 

particular route; rather, if a driver objected, Cappetta was 

obligated to refer the matter to management. As for the ability 

to make hiring recommendations, the Board explains that 

Cappetta had input only insofar as he administered road tests 

to new hires and reported the results to management. The 

Board has consistently found that such involvement in the 

hiring process does not establish supervision. See, e.g., Pac. 

Beach Corp., 344 NLRB 1160, 1161–62 (2005). The last two 

alleged supervisory functions—the direction of employees, and 

the adjustment of grievances—find even less support in the 

record. For someone to direct employees, that person must be 

“accountable for the performance of the task by the 

[employees].” Oakwood Healthcare, Inc., 348 NLRB 686, 692 

(2006). UPS Ground points to no record evidence that 

Cappetta was so accountable. As for the authority to adjust 

grievances, it does not appear that Cappetta had the authority 

to resolve any disputes. At most, Cappetta had the authority to 

“bring any minor grievances to the attention of upper 

management for resolution,” which does not suffice. KenCrest Servs., 335 NLRB 777, 779 (2001). 

UPS Ground would have us look to additional evidence of 

supervisory status, detailed in an offer of proof filed in support 

of its objections to the election results. But neither the Acting 

Regional Director nor the Board had an obligation to consider 

belatedly-presented evidence. “[T]he Board need not afford a 
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party objecting to a representation hearing more than one 

opportunity to litigate any particular issue,” Sitka Sound 

Seafoods, Inc. v. NLRB, 206 F.3d 1175, 1182 (D.C. Cir. 2000), 

and UPS Ground received that opportunity at the pre-election 

hearing. 

UPS Ground’s remaining objections to the application of 

the Board’s rules and regulations all lack merit. (UPS Ground 

has disclaimed a facial challenge to the Board’s rules.) Various 

of UPS Ground’s objections challenge the Acting Regional 

Director’s failure to permit an all-embracing investigation of 

Cappetta’s actions leading up to the election. Those objections 

all fail for the simple reason that the Board reasonably 

concluded that Cappetta was not a statutory supervisor. Thus, 

UPS Ground cannot demonstrate the requisite “prejudice” from 

any of those alleged errors. Salem Hosp., 808 F.3d at 70.

Nor do any of UPS Ground’s other objections carry the 

day. For example, UPS Ground argues that the pre-election 

hearing timeline was abusive because it allotted only eleven 

days to prepare for the hearing. The Acting Regional Director, 

though, was required by regulation to schedule the pre-election 

hearing on the eighth day after the Union petition. See 29 

C.F.R. § 102.63(a)(1). Further, the Acting Regional Director 

partially granted UPS Ground’s motion for a two-business-day 

postponement of the pre-election hearing. The Acting 

Regional Director did not abuse his discretion by complying 

with the regulation. And the decision to postpone the hearing 

by one business day, but not two, is in the heartland of his 

discretion. That timeline also comported with due process. 

Even assuming that due process requires any pre-election 

hearing whatsoever, but see Inland Empire Dist. Council v. 

Millis, 325 U.S. 697, 710 (1945), an eight-day notice accords 

with both the Due Process Clause and UPS Ground’s statutory 

right to an “appropriate” hearing, 29 U.S.C. § 159(c)(1).
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Next, UPS Ground argues that it was prejudiced by the 

timeline because it was required to file a Statement of Position 

on the business day before the hearing. UPS Ground, though,

cannot show any prejudice from that requirement, as the 

Statement of Position is not binding. The Regional Director 

“may permit the employer to amend its Statement of Position 

in a timely manner for good cause.” 29 C.F.R. § 102.63(b)(1). 

Nor does the Statement of Position preclude the Regional 

Director from “direct[ing] the receipt of evidence concerning 

any issue . . . as to which the regional director determines that 

record evidence is necessary.” Id. § 102.66(b). And despite 

UPS Ground’s contention that its Statement of Position limited 

it to calling only certain witnesses at the pre-election hearing, 

at no point during this litigation has UPS Ground ever 

identified any additional witnesses it would have called at the 

hearing.

UPS Ground also challenges various rulings made by the 

hearing officer during the pre-election hearing—specifically, 

that the hearing officer asked UPS Ground for certain 

documents that UPS Ground did not possess, denied UPS 

Ground’s request to grant a one-day adjournment for 

preparation for closing arguments, and refused the filing of 

posthearing briefs. None of those rulings was an abuse of 

discretion. A demand for documents is not an adverse ruling, 

in any sense. The denial of an adjournment was entirely proper, 

especially given that the regulations do not require even a 

recess prior to closing arguments. See 29 C.F.R. § 102.66(h). 

And UPS Ground had no entitlement to posthearing briefs, 

which “shall be filed only upon special permission of the 

regional director.” Id.

The Acting Regional Director also properly directed a 

mail-ballot election. A mail-ballot election is proper when 

voters are “scattered” over a wide area or across different work 
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schedules. San Diego Gas & Elec., 325 NLRB 1143, 1145 

(1998). In this case, the Acting Regional Director reasonably 

determined that the employees travel long distances and that 

traffic and weather conditions, particularly in winter, might 

hinder employees from returning to the facility in time to 

permit them to vote. The Acting Regional Director reasonably

rejected UPS Ground’s alternative proposal—to arrange 

drivers’ work schedules so they could vote before leaving on 

their assigned routes—which, by UPS Ground’s own 

characterization, would have ensured the ability to vote only of 

“most of [the drivers] before they go.” J.A. 320 (emphasis 

added). And the mail-ballot election did not impermissibly 

restrict UPS Ground’s right to campaign. The Act proscribes 

only mass captive-audience assemblies (for employer and 

union alike) during a mail-ballot election. See San Diego Gas, 

325 NLRB at 1146. UPS Ground was still free to campaign 

via other means. More generally, it is difficult to imagine any 

prejudice arising from the choice of a mail-ballot election when 

94% of eligible voters cast ballots and those ballots 

overwhelmingly favored unionization. Cf. Kwik Care Ltd. v. 

NLRB, 82 F.3d 1122, 1127 (D.C. Cir. 1996).

Finally, the Acting Regional Director did not abuse his 

discretion by declining to decide, before the election, whether 

two employees in disputed job classifications (safety 

instructors and dispatchers) were part of the bargaining unit. It 

is common practice to permit such employees to vote under 

challenge. See Kirkhill Rubber Co., 306 NLRB 559, 559 

(1992). Nor does that practice imperil the bargaining unit’s 

right to make an informed choice, so long as the notice of 

election—as happened here—“alert[s] employees to the 

possibility of change” to the definition of the bargaining unit. 

Sears, Roebuck & Co. v. NLRB, 957 F.2d 52, 55 (2d Cir. 1992).
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* * * * *

For the foregoing reasons, we deny the petition for review 

and grant the Board’s cross-application for enforcement.

So ordered.