NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 7 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS No. 23-3628 BOARD, NLRB No. 32-CA-309933 Petitioner,
v. MEMORANDUM*
UPS SUPPLY CHAIN SOLUTIONS, INC,
Respondent,
----------------------------------------
INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 439,
Intervenor.
INTERNATIONAL BROTHERHOOD OF No. 24-518 TEAMSTERS LOCAL 439, NLRB No. Petitioner, 32-CA-309933
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. UPS SUPPLY CHAIN SOLUTIONS, INC, No. 24-1981 Petitioner, NLRB No. 32-CA-309933 v.
On Petition for Review of an Order of the National Labor Relations Board
Argued and Submitted March 4, 2025 San Francisco, California
Before: WARDLAW, PAEZ, and LEE, Circuit Judges.
The National Labor Relations Board (“Board”) petitions for enforcement of
its January 3, 2024 unfair labor practices Order against UPS Supply Chain
Solutions, Inc. (“UPS Healthcare”). In the Order, the Board concluded that UPS
Healthcare had violated Section 8(a)(5) and (1) of the National Labor Relations
Act, 29 U.S.C. § 158(a)(5) & (1), by refusing to recognize and bargain with the
International Brotherhood of Teamsters Local 439 (“Union”) beginning on
December 6, 2022.1 UPS Healthcare cross-petitions for review of the Board’s
1 The Board issued its original unfair labor practices Order against UPS Healthcare on August 4, 2023. UPS Healthcare filed a motion for reconsideration, which the Board granted in part and denied in part. The January 3, 2024 Order amends the original order as to the date on which UPS Healthcare’s unlawful refusal to bargain commenced and otherwise adopts the findings and reasoning of the original order.
2 23-3628 Order. The Union, as Intervenor, also petitions for review of the Board’s Order as
to when UPS Healthcare’s refusal to bargain commenced. We have jurisdiction
under 29 U.S.C. § 160(e) and (f). We grant the Board’s petition for enforcement,
deny UPS Healthcare’s cross-petition for review, and deny the Union’s petition for
review except as to enforcement of the Board’s Order.
We will uphold an order of the Board if it “correctly applied the law and its
factual findings are supported by substantial evidence.” NLRB v. Nexstar Broad.,
Inc., 4 F.4th 801, 805-06 (9th Cir. 2021) (citation omitted).
1. Substantial evidence supports the Board’s overruling of UPS
Healthcare’s objections to the May 11, 2022 election of the Union as the exclusive
collective bargaining representative of certain unit employees. “The NLRB has
broad discretion to determine the propriety of the union representation election
process.” Micronesian Telecomm. Corp. v. NLRB, 820 F.2d 1097, 1101 (9th Cir.
1987). In its Order, the Board affirmed the Regional Director’s underlying
decision overruling UPS Healthcare’s four objections to certain conduct by several
Union representatives during the election. The Regional Director, adopting the
factual findings of the hearing officer, applied the Board’s multi-factor balancing
test to evaluate whether challenged conduct by union agents tended to interfere
with employees’ free choice in a representation election. See Taylor Wharton Div.
Harsco Corp., 3356 NLRB 157, 158 (2001).
3 23-3628 The Regional Director properly relied on record evidence, including witness
testimony and security camera footage of the parking lot at UPS Healthcare’s
facility, and the hearing officer’s findings of fact regarding the Union
representatives’ conduct to conclude that none of the challenged conduct was
objectionable. In doing so, the Regional Director properly relied on Board
precedent holding that union activity “in areas that are not designated as no-
electioneering locations, with nothing more, do[es] not constitute objectionable
electioneering sufficient to set aside an election.” See Milchem, Inc., 170 NLRB
362, 363 (1968); U-Haul of Nevada, Inc., 341 NLRB 195, 197 (2004). The
Regional Director also relied on substantial evidence in the record to find that the
Union representatives’ brief conversations with three voters and presence in the
parking lot did not constitute objectionable electioneering or voter intimidation.
The Regional Director also properly relied on the hearing officer’s
credibility determinations as to witness testimony in finding that the Union
representatives did not shout at voters. “Because the Board hearing officer who
observes the witnesses and hears their testimony is in the best position to judge
witness credibility, such determinations are entitled to great deference and will not
be disturbed unless a clear preponderance of all the relevant evidence convinces
the court that they are incorrect.” Bell Foundry Co. v. NLRB, 827 F.2d 1340, 1343
(9th Cir. 1987) (citing NLRB v. Pacific Int’l Rice Mills, Inc., 594 F.2d 1323, 1326
4 23-3628 (9th Cir. 1979)). Upon consideration of testimony from UPS Healthcare
employees and the relevant security camera footage, the hearing officer and
Regional Director found witnesses’ assertions that the Union representatives
shouted at voters lacked credibility. As substantial evidence supports that finding,
we will not disturb those credibility determinations or the Regional Director’s
ultimate conclusion to overrule the election objections.
2. Accordingly, “we will not overturn a Board decision to certify a union
unless the Board has abused that discretion.” Micronesian Telecomm., 820 F.2d at
1102 (citation omitted). In finding that the Regional Director’s decision to certify
the Union after overruling UPS Healthcare’s election objections was supported by
substantial evidence, we conclude the Board’s affirmance of that decision was not
an abuse of discretion.
3. The Board did not err in finding that UPS Healthcare’s unfair labor
practices commenced on December 6, 2022, when the Union was certified by the
Regional Director. The Board relied on its precedent that a “simple refusal to
initiate collective-bargaining negotiations pending final Board resolution of timely
filed objections to the election” is not a “per se violation of Section 8(a)(5) and
(1).” See Howard Plating Indus., 230 NLRB 178, 179 (1977). As the Board did
not find evidence that UPS Healthcare’s conduct prior to the certification of the
Union constituted a violation of the NLRA, its finding that the company’s unfair
5 23-3628 labor practices in refusing to bargain with the Union began on the date that the
Union was certified as the collective bargaining representative does not constitute
legal error.
Further, to the extent that the Union argues that UPS Healthcare engaged in
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 7 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS No. 23-3628 BOARD, NLRB No. 32-CA-309933 Petitioner,
v. MEMORANDUM*
UPS SUPPLY CHAIN SOLUTIONS, INC,
Respondent,
----------------------------------------
INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 439,
Intervenor.
INTERNATIONAL BROTHERHOOD OF No. 24-518 TEAMSTERS LOCAL 439, NLRB No. Petitioner, 32-CA-309933
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. UPS SUPPLY CHAIN SOLUTIONS, INC, No. 24-1981 Petitioner, NLRB No. 32-CA-309933 v.
On Petition for Review of an Order of the National Labor Relations Board
Argued and Submitted March 4, 2025 San Francisco, California
Before: WARDLAW, PAEZ, and LEE, Circuit Judges.
The National Labor Relations Board (“Board”) petitions for enforcement of
its January 3, 2024 unfair labor practices Order against UPS Supply Chain
Solutions, Inc. (“UPS Healthcare”). In the Order, the Board concluded that UPS
Healthcare had violated Section 8(a)(5) and (1) of the National Labor Relations
Act, 29 U.S.C. § 158(a)(5) & (1), by refusing to recognize and bargain with the
International Brotherhood of Teamsters Local 439 (“Union”) beginning on
December 6, 2022.1 UPS Healthcare cross-petitions for review of the Board’s
1 The Board issued its original unfair labor practices Order against UPS Healthcare on August 4, 2023. UPS Healthcare filed a motion for reconsideration, which the Board granted in part and denied in part. The January 3, 2024 Order amends the original order as to the date on which UPS Healthcare’s unlawful refusal to bargain commenced and otherwise adopts the findings and reasoning of the original order.
2 23-3628 Order. The Union, as Intervenor, also petitions for review of the Board’s Order as
to when UPS Healthcare’s refusal to bargain commenced. We have jurisdiction
under 29 U.S.C. § 160(e) and (f). We grant the Board’s petition for enforcement,
deny UPS Healthcare’s cross-petition for review, and deny the Union’s petition for
review except as to enforcement of the Board’s Order.
We will uphold an order of the Board if it “correctly applied the law and its
factual findings are supported by substantial evidence.” NLRB v. Nexstar Broad.,
Inc., 4 F.4th 801, 805-06 (9th Cir. 2021) (citation omitted).
1. Substantial evidence supports the Board’s overruling of UPS
Healthcare’s objections to the May 11, 2022 election of the Union as the exclusive
collective bargaining representative of certain unit employees. “The NLRB has
broad discretion to determine the propriety of the union representation election
process.” Micronesian Telecomm. Corp. v. NLRB, 820 F.2d 1097, 1101 (9th Cir.
1987). In its Order, the Board affirmed the Regional Director’s underlying
decision overruling UPS Healthcare’s four objections to certain conduct by several
Union representatives during the election. The Regional Director, adopting the
factual findings of the hearing officer, applied the Board’s multi-factor balancing
test to evaluate whether challenged conduct by union agents tended to interfere
with employees’ free choice in a representation election. See Taylor Wharton Div.
Harsco Corp., 3356 NLRB 157, 158 (2001).
3 23-3628 The Regional Director properly relied on record evidence, including witness
testimony and security camera footage of the parking lot at UPS Healthcare’s
facility, and the hearing officer’s findings of fact regarding the Union
representatives’ conduct to conclude that none of the challenged conduct was
objectionable. In doing so, the Regional Director properly relied on Board
precedent holding that union activity “in areas that are not designated as no-
electioneering locations, with nothing more, do[es] not constitute objectionable
electioneering sufficient to set aside an election.” See Milchem, Inc., 170 NLRB
362, 363 (1968); U-Haul of Nevada, Inc., 341 NLRB 195, 197 (2004). The
Regional Director also relied on substantial evidence in the record to find that the
Union representatives’ brief conversations with three voters and presence in the
parking lot did not constitute objectionable electioneering or voter intimidation.
The Regional Director also properly relied on the hearing officer’s
credibility determinations as to witness testimony in finding that the Union
representatives did not shout at voters. “Because the Board hearing officer who
observes the witnesses and hears their testimony is in the best position to judge
witness credibility, such determinations are entitled to great deference and will not
be disturbed unless a clear preponderance of all the relevant evidence convinces
the court that they are incorrect.” Bell Foundry Co. v. NLRB, 827 F.2d 1340, 1343
(9th Cir. 1987) (citing NLRB v. Pacific Int’l Rice Mills, Inc., 594 F.2d 1323, 1326
4 23-3628 (9th Cir. 1979)). Upon consideration of testimony from UPS Healthcare
employees and the relevant security camera footage, the hearing officer and
Regional Director found witnesses’ assertions that the Union representatives
shouted at voters lacked credibility. As substantial evidence supports that finding,
we will not disturb those credibility determinations or the Regional Director’s
ultimate conclusion to overrule the election objections.
2. Accordingly, “we will not overturn a Board decision to certify a union
unless the Board has abused that discretion.” Micronesian Telecomm., 820 F.2d at
1102 (citation omitted). In finding that the Regional Director’s decision to certify
the Union after overruling UPS Healthcare’s election objections was supported by
substantial evidence, we conclude the Board’s affirmance of that decision was not
an abuse of discretion.
3. The Board did not err in finding that UPS Healthcare’s unfair labor
practices commenced on December 6, 2022, when the Union was certified by the
Regional Director. The Board relied on its precedent that a “simple refusal to
initiate collective-bargaining negotiations pending final Board resolution of timely
filed objections to the election” is not a “per se violation of Section 8(a)(5) and
(1).” See Howard Plating Indus., 230 NLRB 178, 179 (1977). As the Board did
not find evidence that UPS Healthcare’s conduct prior to the certification of the
Union constituted a violation of the NLRA, its finding that the company’s unfair
5 23-3628 labor practices in refusing to bargain with the Union began on the date that the
Union was certified as the collective bargaining representative does not constitute
legal error.
Further, to the extent that the Union argues that UPS Healthcare engaged in
bad faith refusal to bargain during the precertification period, those arguments are
jurisdictionally barred because they were not previously raised before the Board.
See 29 U.S.C. § 160(e). Accordingly, there is no basis to remand the issue of when
the duty to bargain commenced to the Board.
4. The Board did not err in finding that relitigation of issues related to
UPS Healthcare’s election objections is unwarranted. In its Order, the Board
acknowledged its general rule against relitigation in refusal to bargain cases. The
Board found that the circumstances warranting an exception to its general rule
against relitigation in Sub-Zero Freezer Co., 271 NLRB 47 (1984), which involved
threats to employees and property damage, were “materially different” from UPS
Healthcare’s election objections in this case. See RadNet Mgmt., Inc. v. NLRB, 992
F.3d 1114, 1128 (D.C. Cir. 2021). Further, the Board acknowledged that UPS
Healthcare had admitted that the election objections were “fully litigated and
resolved in the underlying representation hearing.” UPS Healthcare presents no
new facts or circumstances before this court that compel a different conclusion as
to the propriety of relitigation. Thus, we conclude the Board did not err in finding
6 23-3628 no basis for relitigation of the issues related to UPS Healthcare’s election
objections.
5. Finally, the Board did not abuse its discretion in severing the issue of
compensatory damages from the unfair labor practices case. The Board retains
“broad discretion to devise remedies that effectuate the policies of the [NLRA].”
United Nurses Assocs. of Cal. v. NLRB, 871 F.3d 767, 777 (9th Cir. 2017). We
have held that, upon severance of the remedial issue of compensatory damages, the
unsevered portion of the Board’s decision regarding an employer’s underlying
unfair labor practices still constitutes a final order. See NLRB v. Siren Retail
Corp., 99 F.4th 1118, 1124 (9th Cir. 2024). The Board also did not err in finding it
immaterial whether the severance of the compensatory damages issue would
effectively overrule Ex-Cell-O Corp., 185 NLRB 107 (1970), as the unsevered
portion of the Board’s decision “consummates the Board’s final statement on the
underlying violation and is one from which legal consequences—the requirement
to bargain with the Union—will flow if enforced.” Siren Retail Corp., 99 F.4th at
1124 (quoting Bennett v. Spear, 520 U.S. 154, 177-78 (1997)) (internal quotation
marks and alterations omitted). We therefore affirm the Board’s severance of the
compensatory damages issue from its unfair labor practices Order.2
2 The Board’s Motion to Supplement the Record and Transmit Letter, Dkt. #63, is denied as moot.
7 23-3628 The parties shall bear their own costs on appeal.
PETITION FOR ENFORCEMENT GRANTED; CROSS-PETITION FOR REVIEW DENIED; PETITION FOR REVIEW DENIED.
8 23-3628