01-4079 NLRB v. Deutsche Post Global Mail, Ltd.

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“[R]elying on Cooper International, Inc., 205 NLRB 1057 (1973), Deutsche Post claims the Board erred by assuming that most of the Yellowstone employees would accept job offers at the new plant. According to Deutsche Post, Cooper precludes speculation into the number of employees who will accept post-reorganization offers of employment until after those offers are made. As a result, Deutsche Post argues, the Board should not have ordered the election because there was no way for it to know whether the existing workforce constituted a substantial and representative complement of the proposed workforce. Simply put, Deutsche Post reads Cooper too broadly. In that case, the new plant was more than 18 miles away from the old one, few of the employees had cars, and there was no available public transportation. Because it had reason to believe that many of the workers would not move to the new plant, the Board declined to speculate as to the number of employees who would accept employment offers. Here, as the Board noted, the ‘strikingly different facts’ make such speculation much more reasonable. The new plant is just 1.5 miles away, and the transportation problems in Cooper are not present. Given that the nature of the work will not change, the company offered no reason to think that the vast majority of Yellowstone employees would not accept employment offers at the new plant. Therefore, the Board’s speculation was reasonable. See AAA Alternator Rebuilders, Inc., 980 F.2d at 1399 (‘”[Cooper] does not establish an exclusive and dispositive means for the exercise of discretion by the Board in implementing its case-by-case approach.’).

“Deutsche Post argues that allowing the Board discretion and some speculation will make it hard for employers to foresee whether elections are appropriate. However, that’s a small cost of any balancing system. The whole point of the case-by-case analysis is to weigh the many factors unique to any given situation, and setting hard and fast rules such as the one Deutsche Post suggests takes away that freedom.”

Petition Granted.

Petition for Enforcement of an Order of the National Labor Relations Board, Evans, J.