Baltimore Sun Co v. NLRB

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THE BALTIMORE SUN COMPANY, 

Petitioner,

v.



NATIONAL LABOR RELATIONS BOARD,

Respondent, No. 00-1493

WASHINGTON-BALTIMORE NEWSPAPER

GUILD, LOCAL 32035, THE

NEWSPAPER GUILD-CWA,

Respondent-Intervenor.



NATIONAL LABOR RELATIONS BOARD, 

Petitioner,

v.



THE BALTIMORE SUN COMPANY,

Respondent, No. 00-1774

WASHINGTON-BALTIMORE NEWSPAPER

GUILD, LOCAL 32035, THE

NEWSPAPER GUILD-CWA,

Respondent-Intervenor.



On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board.

(5-CA-27814)

Argued: January 25, 2001

Decided: July 18, 2001

2 THE BALTIMORE SUN v. NLRB

Before NIEMEYER and KING, Circuit Judges, and

Gerald Bruce LEE, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Petition for review granted and cross-application for enforcement

denied by published opinion. Judge Niemeyer wrote the opinion, in

which Judge Lee joined. Judge King wrote an opinion concurring in

part and dissenting in part.

COUNSEL

ARGUED: Jeremy Paul Sherman, SEYFARTH SHAW, Chicago,

Illinois, for Baltimore Sun. Steven B. Goldstein, NATIONAL

LABOR RELATIONS BOARD, Washington, D.C., for Board. Rob-

ert Edward Paul, ZWERDLING, PAUL, LEIBIG, KAHN, THOMP-

SON & WOLLY, P.C., Washington, D.C., for Intervenor. ON

BRIEF: Kristin E. Michaels, SEYFARTH SHAW, Chicago, Illinois,

for Baltimore Sun. Leonard R. Page, General Counsel, Aileen A.

Armstrong, Deputy Associate General Counsel, Julie B. Broido,

Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,

Washington, D.C., for Board.

OPINION

NIEMEYER, Circuit Judge:

This case presents the important question of when the National

Labor Relations Board may "accrete" employees to a collective bar-

gaining unit by Board order in the absence of a representation elec-

tion.

After the Baltimore Sun Company refused to bargain with the

Washington-Baltimore Newspaper Guild over the terms and condi-

tions of employment for employees in the Company’s "SunSpot"

website department — contending that the employees had been

THE BALTIMORE SUN v. NLRB 3

improperly "accreted" to the bargaining unit — the National Labor

Relations Board found that the Company committed an unfair labor

practice and ordered it to bargain with the Union. The Company peti-

tions for review of that order, and the Board, supported by the Union

as intervenor, cross-petitions for enforcement of the order.

Because in this case the Board failed to follow its usually cautious

standard for bypassing a representation election and accreting

employees to a unit by Board order, we grant the Company’s petition

for review and deny the Board’s cross-petition for enforcement. Our

reasons follow.

I

The Baltimore Sun Company ("the Company") publishes and dis-

tributes a daily morning newspaper, The Sun, and a Sunday edition,

The Sunday Sun, which are circulated in the area around Baltimore,

Maryland. The Company also owns and operates several other busi-

nesses, including Alliance Media, a magazine publisher and distribu-

tor; Apartment Search, a service that introduces prospective tenants

to prospective landlords; and SunDial, an interactive service that pro-

vides news, advertisements, and other information over the telephone.

The Company operates from offices located throughout the Baltimore

metropolitan area, but its primary office is located in downtown Balti-

more.

For more than 50 years, the Washington-Baltimore Newspaper

Guild (the "Union") has served as the collective bargaining represen-

tative for all of the non-managerial news and editorial employees of

the Company. See In re A. S. Abell Co., 81 N.L.R.B. 82 (1949). Also,

employees in the mechanical and nonmechanical departments have

elected to be included in the Union’s bargaining unit, and the NLRB

has included the Company’s employees in the library and commercial

departments. In addition, in 1990 the parties by agreement added

employees in the SunDial department to the unit. Accordingly, the

Union represents a bargaining unit consisting of a wide variety of

positions within the Company’s newspaper operations. While the

efforts of these employees have focused historically on the production

of The Sun and The Sunday Sun, the employees have also had respon-

sibility for publishing other documents on a regular basis, such as a

4 THE BALTIMORE SUN v. NLRB

report on Baltimore elementary schools, a business almanac, a gar-

dening calendar, an outdoor guide, and educational materials. Other

employees of the Company are represented by other unions, and still

others are not represented by any union.

In June 1996, when the Company and the Union were completing

negotiations for a new collective bargaining agreement, to take effect

on June 23, 1996, they did not resolve whether employees developing

a website for the Company would be in the bargaining unit repre-

sented by the Union. At the time, the Company was in the preliminary

stages of developing the "SunSpot" website to provide, among other

services, an Internet conduit for articles originally published in The

Sun. When the Union sought information about the new SunSpot

department, the Company’s representatives stated that the website

was "experimental" and that the "target" for making the website oper-

ational was "sometime this year." The Company also indicated that

the new department’s staff — which at the time consisted of a "con-

tent packager," a "website production manager," a "Web sales man-

ager," and a secretary — might, within the near future, either expand

or contract. The Union expressed its desire to represent the SunSpot

employees, but the Company refused to agree. When the Company’s

representative stated during these negotiations that the Company’s

position was that SunSpot employees were not covered by the collec-

tive bargaining agreement, the Union representative responded, "I

understand."

The parties did not resolve the issue at that time, and the final pro-

posed collective bargaining agreement, which was provisionally rati-

fied on June 22, 1996, did not address whether SunSpot employees

were part of the bargaining unit covered by the agreement. Article I,

section 1.1 of the agreement recognizes the Union as "the exclusive

representative of the employees employed in job classifications cov-

ered by this Agreement." Section 1.2 states that the Union’s jurisdic-

tion "shall include new or additional work of a permanent nature in

departments covered by this Agreement and requiring the same or

similar skills for which bargaining unit employees are currently

employed." Section 1.8 lists the three departments — editorial and

news, commercial, and SunDial — covered by the agreement. In the

news and editorial departments, the Union is assigned approximately

150 reporters, 50 copy editors, and several other editors, photogra-

THE BALTIMORE SUN v. NLRB 5

phers, technicians, artists, writers, and clerks. The commercial depart-

ment includes advertising salespersons, research analysts, janitors,

carpenters, technicians, and various other personnel. But the SunSpot

department employees were neither expressly included in, nor

excluded from, the departments or job classifications outlined in the

collective bargaining agreement.

Following ratification of the collective bargaining agreement, the

Union and the Company continued negotiations over the status of the

SunSpot department employees. The Union reiterated its belief that

SunSpot employees should be included within the bargaining unit,

and the Company’s representatives continued to represent that the

SunSpot website was not yet up and running, but in any event, the

employees of the SunSpot department would not be within the

Union’s jurisdiction as outlined in the agreement.

In July 1996, the SunSpot website first became accessible on

the Internet to a limited degree, and by the end of September it was

fully and officially launched. The Company’s newspapers now adver-

tise SunSpot on the lower left-hand corner of each edition, providing

its worldwide Web address — "The Sun on the Internet:

http://www.sunspot.net" — and the site makes every Sun article

accessible to Web surfers. In addition to providing links to Sun arti-

cles, obituaries, classifieds, and services, the site, at least as originally

conceived, contained interactive games, an Internet soap opera, chat

rooms, and permanent reference information about the Baltimore

area.

The employees in the SunSpot department work in the Company’s

main office in downtown Baltimore, on the same floor as departments

containing several bargaining unit employees. In addition to three

supervisors — a sales manager, a Web community relations and con-

tent manager, and a Web production manager — the SunSpot depart-

ment had at the time of contract negotiations four nonsupervisory

employees. Tilthea Ransome, a confidential secretary, performs ordi-

nary secretarial functions, but also tracks website usage, types the text

of advertisements for the site, and archives Sun columns that appear

on the site. Web producer Angie Van Hey ensures that the daily feed

from the newspaper arrives properly, edits the articles for their entry

on the webpage, decides which Sun photographs will appear on the

6 THE BALTIMORE SUN v. NLRB

site, transfers the paper’s columns to the site, and formats files and

pictures for use on the site. Matthew Baize, the Web content pro-

ducer, updates sections of the site, helps tailor Web content to certain

advertisers, and designs the site’s appearance. Finally, Brian Burns is

a Web sales specialist who develops relationships with advertisers.

SunSpot department employees meet separately to decide their own

goals and budget, and they are provided a compensation package that

differs from the package offered to members of the bargaining unit.

In connection with the Union’s organizing efforts, employees in the

SunSpot department have apparently indicated that they do not wish

to be represented by the Union.

Because the Company and the Union were unable to agree on

whether the SunSpot department employees were part of the bargain-

ing unit represented by the Union, the Union filed a petition with the

Board on October 29, 1996, requesting that the bargaining unit be

"clarified" by the Board to include SunSpot department employees

without affording them an opportunity to make that decision through

a representation election — a process that the Board’s caselaw

describes as "accretion." The Company opposed the petition, arguing

(1) that it was untimely because it was filed after ratification of the

collective bargaining agreement, and (2) that accretion of the SunSpot

employees to the bargaining unit was improper because the SunSpot

department employees could be a separate appropriate unit and did

not possess the requisite "overwhelming community of interest" with

the employees of the Union’s bargaining unit to justify the inclusion

of the SunSpot employees without the benefit of a representation elec-

tion.

The NLRB’s Regional Director granted the Union’s petition. On

the timeliness issue, the Regional Director reasoned that although "the

Board generally declines to process a clarification petition during the

term of an existing agreement which clearly defines the unit," the

petition was timely because the Union never abandoned its position

during negotiations that SunSpot department employees should be

within the unit; the SunSpot department employees were not clearly

excluded by the collective bargaining agreement; and the SunSpot

website was not operational until after the collective bargaining

agreement had been signed. On the merits, the Regional Director

found that accretion was appropriate because the SunSpot department

THE BALTIMORE SUN v. NLRB 7

employees "share an overwhelming community of interest with the

represented employees and could not constitute a separate appropriate

unit." In addressing the merits, the Regional Director did note that the

hearing officer erred in excluding evidence of the SunSpot depart-

ment employees’ union sentiments, stating that it is the Board’s posi-

tion to permit consideration of "the desires of unrepresented

employees in determining whether to accrete them to an existing

unit." He concluded, however, that the error was not "prejudicial."

Without analysis, the Board denied the Company’s request for

review, explaining only that the Union’s petition was timely because

the SunSpot department "was not fully staffed and not fully opera-

tional until after the execution of a new contract." Member Hurtgen

dissented in part, noting that while he agreed that the petition was

timely, he would have reviewed the merits of the Regional Director’s

accretion decision.

To challenge the Board’s accretion determination, the Company

refused to bargain with the Union over the terms and conditions of

employment of SunSpot department employees. When the Board’s

General Counsel subsequently filed an unfair labor practice complaint

against the Company, the Board, noting that it had already resolved

the Company’s arguments in the clarification proceeding, entered

summary judgment against the Company, declaring that the Company

had committed an unfair labor practice, in violation of 29 U.S.C.

§§ 158(a)(1) and (5). The Board thus ordered the Company to bargain

with the Union over terms and conditions applicable to SunSpot

department employees.

The Company thereupon petitioned this court for review, and the

Board cross-petitioned for enforcement of its order. The Union has

intervened to support the Board’s cross-petition for enforcement.

II

Employee self-determination in the collective bargaining process is

perhaps the most fundamental promise of the National Labor Rela-

tions Act (the "NLRA" or the "Act"), 29 U.S.C. § 151 et seq. Section

7 of the Act provides:

8 THE BALTIMORE SUN v. NLRB

Employees shall have the right to self-organization, to form,

join, or assist labor organizations, to bargain collectively

through representatives of their own choosing, and to

engage in other concerted activities for the purpose of col-

lective bargaining or other mutual aid or protection, and

shall also have the right to refrain from any or all of such

activities.

29 U.S.C. § 157 (emphasis added). This core provision guards with

equal jealousy employees’ selection of the union of their choice and

their decision not to be represented at all. See Newport News Ship-

building & Drydock Co., 233 N.L.R.B. 1443, 1452 (1957). And the

Act designates the Board as the primary guardian of the rights estab-

lished by § 7. See 29 U.S.C. §§ 153, 159; see also NLRB v. Lundy

Packing Co., 68 F.3d 1577, 1579-80 (4th Cir. 1995).

Among the many functions assigned to the Board in furtherance of

its role in protecting the self-determination of employees is the power

to define "the unit appropriate for the purposes of collective bargain-

ing." 29 U.S.C. § 159(b). Congress expressly directed the Board,

when exercising this power, to do so with the purpose of "assur[ing]

to employees the fullest freedom in exercising the rights guaranteed

by this subchapter." Id. Accordingly, the Board’s bargaining-unit

determinations must necessarily accept, as a basic premise, the obli-

gation to protect employees’ § 7 rights. But in light of the NLRB’s

special expertise and its need for flexibility in crafting unique

responses to the particular facts surrounding any given labor-

management relationship, the Board generally enjoys broad discretion

when it makes these determinations. See Arcadian Shores, Inc. v.

NLRB, 580 F.2d 118, 119 (4th Cir. 1978). That discretion, while

broad, is, of course, not unbridled, see Westvaco, Va., Folding Box

Div. v. NLRB, 795 F.2d 1171, 1173 (4th Cir. 1986), for the size and

scope of a bargaining unit can play a pivotal role in the employees’

ability to exercise the rights conferred on them by § 7, see Lundy

Packing, 68 F.3d at 1583 (noting that the "deference owed the Board"

will not extend "to the point where the boundaries of the Act are

plainly breached").

In defining an appropriate bargaining unit, the Board can exercise

its power in two ways. The usual course is to delineate the boundaries

THE BALTIMORE SUN v. NLRB 9

of a proposed unit in a clarification proceeding and then order an elec-

tion in which the affected employees vote for or against union repre-

sentation. See, e.g., Lundy Packing, 68 F.3d at 1579. Alternatively

and more rarely, the Board may, mainly for administrative conve-

nience, "accrete" a small group of employees to a larger preexisting

unit without the benefit of an election, thus assigning to the accreted

employees the preexisting unit’s choice of bargaining representative.

See Universal Security Instruments, Inc. v. NLRB, 649 F.2d 247, 253

(4th Cir. 1981) (citing Lammert Indus. v. NLRB, 578 F.2d 1223, 1225

n.3 (7th Cir. 1978); NLRB v. Sunset House, 415 F.2d 545, 547 (9th

Cir. 1969)). Because the accretion doctrine is in considerable tension

with the statute’s guarantee of employee self-determination, the

Board has historically favored employee elections, reserving accretion

orders for those rare cases in which it could conclude with great cer-

tainty, based on the circumstances, that the employees’ rights of self-

determination would not be thwarted.

Thus, the Board enters an accretion order only when the accreted

employees have an insufficient group identity to function as a sepa-

rate unit and their interests are so closely aligned with those of the

preexisting bargaining unit that the Board can safely assume that the

accreted employees would opt into that unit if given the opportunity.

See Archer Daniels Midland Co., 333 N.L.R.B. No. 81, 2001 WL

303760, at *6; Safeway Stores, Inc., 256 N.L.R.B. 918, 918 (1981);

Melbert Jewelry Co., 180 N.L.R.B. 107, 110 (1969); see also Wes-

tinghouse Elec. Corp. v. NLRB, 506 F.2d 668, 672-73 (4th Cir. 1974)

(noting that the Board may not, under the guise of accretion, deny

employees an election to express their choice). While a mere finding

of a "community of interest" among affected employees may be suffi-

cient to justify the Board’s action in defining a unit to conduct a rep-

resentation election, Lundy Packing, 68 F.3d at 1581, a decision to

accrete employees to a unit without an election requires a showing of

much more. Accordingly, the Board has determined that it may issue

an order to accrete employees to a preexisting bargaining unit only

when the employees have "little or no separate group identity and thus

cannot be considered to be a separate appropriate unit" and the com-

munity of interest between the employees and the existing unit is

"overwhelming." Safeway Stores, 256 N.L.R.B. at 918; see also West-

vaco, 795 F.2d at 1177-78 (applying with approval the Safeway Stores

standard in the Fourth Circuit); Universal Security, 649 F.2d at 253

10 THE BALTIMORE SUN v. NLRB

(same). The Safeway Stores rule is the standard announced by the

Board that is applicable in this case.

III

The Company contends that the Regional Director, whose decision

the Board affirmed without discussion of the merits, became confused

by application of the appropriate standard and therefore "fail[ed] to

explain why the SunSpot Department would not constitute a separate

appropriate unit." In addition, it argues that the Regional Director’s

finding that SunSpot employees share an overwhelming community

of interest with the bargaining unit "is not supported by the evidence."

Neither party challenges the propriety of applying the Safeway

Stores standard for making accretion decisions, nor does any party

argue that the rule is irrational or inconsistent with the NLRA. See

generally Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,

364 (1998); see also Westvaco, 795 F.2d at 1177-78; Universal Secur-

ity, 649 F.2d at 253-54. Rather, the question that the Company raises

is whether, in this case, the Board properly applied the standard. This

suggests the question, as phrased by the Supreme Court in an analo-

gous context: Is the Board’s "announced standard . . . really the effec-

tive one" in this case? Allentown Mack, 522 U.S. at 373. If not, any

conclusion reached would violate the scheme of "reasoned decision-

making" established by the Administrative Procedure Act, which

requires "the Board . . . to apply in fact the clearly understood legal

standards that it enunciates in principle." Id. at 376. Once the proper

standard is understood, we must then determine whether the Board’s

conclusion under that standard was supported by substantial evidence.

See 29 U.S.C. § 160(e). That standard is the same we apply when

reviewing a jury verdict. See Allentown Mack, 522 U.S. at 366-67

(equating the "substantial evidence" inquiry with the question of

"whether on this record it would have been possible for a reasonable

jury to reach the Board’s conclusion").

The Board’s announced standard for making accretion decisions

has two defining prongs: (1) whether the subject employees "have lit-

tle or no separate group identity and thus cannot be considered to be

a separate appropriate unit," and (2) whether the subject employees

"share an overwhelming community of interest" with the bargaining

THE BALTIMORE SUN v. NLRB 11

unit to which they would be accreted. Westvaco, 795 F.2d at 1173

(quoting Safeway Stores, 256 N.L.R.B. at 918) (internal quotation

marks omitted). Because the prongs are stated in the conjunctive, each

provides an independent requirement. Thus, for example, a group of

employees could be found to have no separate group identity and

therefore could not be considered a separate appropriate unit. Yet,

they might not have an overwhelming community of interest with the

particular bargaining unit under consideration. Another bargaining

unit might, in this hypothetical, be more appropriate. The Safeway

Stores rule thus requires two separate findings. The first — whether

the employees could be a separate appropriate unit — determines

whether the employees should be allowed to exercise their choice

through an election. The second — whether the employees, who

could not be a separate unit, have an overwhelming community of

interest with the bargaining unit under consideration — identifies

whether the unit is one to which employees should be accreted or

determines whether they should be accreted to any unit at all.

When the two-part test of Safeway Stores is faithfully applied,

accretion of employees to a bargaining unit will occur only in those

extraordinary cases in which the Board can be reasonably certain that

no election is required and that the accreted employees share such

similar interests with employees in the bargaining unit that they

would choose it.* See 256 N.L.R.B. at 918 (pointing out that "[t]he

Board’s fundamental concern, however, is to insure that in cases

where such an issue [i.e., accretion] is raised the right of interested

employees to determine their own bargaining representative will not

*Given that the accretion doctrine is, at bottom, concerned with the

protection of the accreted employees’ wishes, we agree with the

Regional Director that the hearing officer’s exclusion of evidence prof-

fered by the Company to show that SunSpot employees did not desire

union representation was "error." See Sandvik Rock Tools, Inc. v. NLRB,

194 F.3d 531, 535 (4th Cir. 1999); Westinghouse Elec., 506 F.2d at 673;

see also NLRB v. Stevens Ford, Inc., 773 F.2d 468, 474 (2d Cir. 1985);

NLRB v. Ideal Laundry & Dry Cleaning Co., 330 F.2d 712, 717 (10th

Cir. 1964). But unlike the Regional Director, we fail to see how this error

was not serious and prejudicial. Indeed, it is difficult to imagine more

probative evidence of the employees’ community of interest and group

identity than documentation of their sentiment about the proposed accre-

tion.

12 THE BALTIMORE SUN v. NLRB

be thwarted"); Melbert Jewelry, 180 N.L.R.B. at 110 (stating that the

Board will not "under the guise of accretion" deny employees "the

opportunity of expressing their preference . . . that they wish to autho-

rize the Union to represent them"). And because misuse of accretion

poses a significant threat to the self-determination rights of employees

guaranteed by § 7 of the NLRA, courts have been particularly vigilant

in assuring that the Board observes in practice the strict standards it

has adopted for accretion orders. See, e.g., Westvaco, 795 F.2d at

1177; NLRB v. Stevens Ford, Inc., 773 F.2d 468, 472-76 (2d Cir.

1985); Westinghouse Elec., 506 F.2d at 672-73. If there is any sub-

stantial doubt, the policy of the NLRA requires that an election be

conducted. Cf. Martin Marietta Chems., 270 N.L.R.B. 821, 822

(1984) (noting that when "a question concerning representation [as

between competing bargaining units] arises, . . . the Board will not

impose a union by applying its accretion policy").

In this case, therefore, the Regional Director should have consid-

ered first the Board’s jurisprudence for determining whether the Sun-

Spot employees had a separate group identity sufficient to be

considered a "separate appropriate unit." If the employees could be so

considered, then accretion would be inappropriate.

When the Board determines whether employees could constitute an

appropriate bargaining unit, it enjoys unusually broad discretion

because bargaining units can be determined by reference to a long list

of different factors, and there is very often "more than one appropriate

bargaining unit within a single employment unit." Sandvik Rock

Tools, Inc. v. NLRB, 194 F.3d 531, 534 (4th Cir. 1999). The Board

is thus "free to select any one of those appropriate units as the bar-

gaining unit." Arcadian Shores, 580 F.2d at 119. Twelve criteria, by

which the Board determines whether a "community of interest" exists

to support finding an appropriate bargaining unit, have been identi-

fied, and no one of them is more dominant than the other. See Lundy

Packing, 68 F.3d at 1580. These are:

(1) similarity in the scale and manner of determining the

earnings; (2) similarity in employment benefits, hours of

work, and other terms and conditions of employment; (3)

similarity in the kind of work performed; (4) similarity in

the qualifications, skills, and training of the employees; (5)

THE BALTIMORE SUN v. NLRB 13

frequency of contact or interchange among the employees;

(6) geographic proximity; (7) continuity or integration of

production processes; (8) common supervision and determi-

nation of labor-relations policy; (9) relationship to the

administrative organization of the employer; (10) history of

collective bargaining; (11) desires of the affected employ-

ees; (12) extent of union organization.

Id. (quoting I.T.O. Corp. v. NLRB, 818 F.2d 1108, 1113 (4th Cir.

1987)) (internal quotation marks omitted); accord Sandvik Rock

Tools, 194 F.3d at 535. When the Board applies these factors in a rea-

soned manner, its determination of an appropriate bargaining unit for

an election stands unless it is shown to be "utterly inappropriate."

Arcadian Shores, 580 F.2d at 120.

Because the Board’s discretion in selecting an appropriate bargain-

ing unit for an election is broad, that same breadth correspondingly

narrows its discretion in accreting employees because, under the

Board’s accretion rule, any employees that could appropriately be a

separate unit cannot be accreted to another unit.

In this case, the Regional Director seemed to overlook his obliga-

tion to determine first whether the SunSpot employees could be con-

sidered a separate appropriate unit. It appears that he instead focused

on the second prong alone out of some demonstrated uncertainty

about the appropriate rule. As he stated, "It is not entirely clear from

Board precedent whether accretion is appropriate when the employees

who would be added to the existing unit merely would not constitute

a separate appropriate unit or whether they must also have an over-

whelming community of interest with the represented employees."

Had the Regional Director considered the first prong of the Safeway

Stores rule, he would not have been able to conclude that the SunSpot

department employees did not have a separate identity sufficient to be

considered an appropriate bargaining unit.

The SunSpot department was organized as a separate department

and effectively operated day to day as a separate department, even

though it was geographically proximate to other departments. Its

immediate supervisors were dedicated to the SunSpot department and

did not overlap with any other department. Cf. Sandvik Rock Tools,

14 THE BALTIMORE SUN v. NLRB

194 F.3d at 536. SunSpot employees did not participate in the prepa-

ration of the newspaper. The department’s employees met as a depart-

ment on a weekly basis; they decided their own goals in developing

the website; they developed their own budget; and they controlled the

terms and conditions of departmental work. They were also compen-

sated differently from other employees, receiving a different benefit

package and individually-negotiated wages. In focusing work on a

website and on customers surfing the Web, the department’s employ-

ees were required to have skills and expertise quite different from

those employed in producing a newspaper. Moreover, the equipment

and supplies they used did not overlap with any other department.

Indeed, the only evidence of any sharing involved the isolated

instance of using a projector from the newsroom and the occasional

use of a copy machine in the advertising department. While SunSpot

department employees interacted with other departments to obtain

content for the website — e.g., news articles — and to solicit newspa-

per customers for advertising dollars, this degree of interaction is no

different from that which is often found between separate appropriate

units in any given business. The SunSpot department’s employees did

not overlap with other departments in other respects. For example, the

unit employees did not participate in the production of the extensive

material that appears exclusively on SunSpot, and none of the Sun-

Spot employees who would fall within the NLRA’s jurisdiction were

hired from the newspaper operations. It is therefore not surprising that

SunSpot department job classifications and descriptions differed from

those in other departments.

Because these circumstances indicate that the SunSpot department

could be a separate appropriate bargaining unit, see Stephens Produce

Co., 214 N.L.R.B. 131, 139 (1974) (finding that meat department

employees constituted a separate appropriate unit from bakery and

dairy employees), the first prong of the applicable rule precludes

accretion of its employees to another unit. Just as we would be

required to affirm a Board finding that the SunSpot department was

a separate appropriate bargaining unit, we must reject accretion of the

SunSpot department to another bargaining unit.

Even in his application of the second prong — whether the

employees had an overwhelming community of interest with the bar-

gaining unit — the Regional Director’s conclusion is not supported

THE BALTIMORE SUN v. NLRB 15

by substantial evidence. The Board was required to consider a broad

range of factors to determine whether a group of employees shares an

overwhelming community of interest with the bargaining unit, includ-

ing "(1) similarity of working conditions; (2) job classification; (3)

skills and functions; (4) similarity of products; (5) interchange ability

of employees; (6) geographical proximity; (7) centralization of mana-

gerial control; (8) functional integration of the business; [and] (9) col-

lective bargaining history." Universal Security, 649 F.2d at 253-54

(internal citations omitted). The Board need not apply these specific

factors rigidly or formalistically, see id. at 254, because the factors

merely serve as a convenient shorthand for the critical underlying

question of whether the economic interests of the employees to be

accreted are so closely aligned with those of the preexisting unit that

the Board can safely assume that the employees would opt into that

unit if given the opportunity. See Safeway Stores, 256 N.L.R.B. at

918.

Although the Regional Director analyzed each of these nine factors

in this case, and the facts undoubtedly indicated that some community

of interest exists between SunSpot employees and the bargaining unit,

substantial evidence did not support the Regional Director’s determi-

nation that this community of interest was so overwhelming that the

employees’ choice could be forgone.

In addition to all of the facts indicating that the SunSpot depart-

ment acted separately and independently — as we recited above —

most fundamental to the community-of-interest question is the fact

that the SunSpot department employees were developing a product

that, while obviously linked to and dependent upon the newspaper in

important ways, was nonetheless a different product, aimed toward a

different market and different customers, capable of generating profits

for the Company in a very different manner. As the Union’s president

acknowledged, "The delivery of information via a website is different

from the delivery of information via the printed newspaper." And

because they were working to provide a fundamentally different prod-

uct, SunSpot department employees possessed abilities that were sim-

ilarly different from those possessed by bargaining unit employees.

They were required to utilize technological and computer skills, such

as programming in the HTML language, that unit employees were not

required to have, and to perform tasks related to SunSpot’s non-

16 THE BALTIMORE SUN v. NLRB

newspaper-related services, such as moderating discussion groups and

stockpiling permanent reference information. This inherent difference

between the two sets of employees could not be overlooked. A rea-

sonable jury could not have concluded that the community of interest

with the bargaining unit was overwhelming such as to forecast that the

SunSpot department employees would have wanted to join the bar-

gaining unit. Even if this question were close, the Board should have

resolved it by an election. See Stevens Ford, 773 F.2d at 473; NLRB

v. Food Employers Council, Inc., 399 F.2d 501, 505 n.1 (9th Cir.

1968); Martin Marietta, 270 N.L.R.B. at 822.

The Board’s fundamental concern in its accretion cases, expressed

through its announced rules of decision, has traditionally been "the

right of interested employees to determine their own bargaining repre-

sentative." Safeway Stores, 256 N.L.R.B. at 918. Accretion, according

to these precedents, is an order of last resort, a drastic remedy for

exceptional cases. Yet, the Board has not demonstrated why this case

is so exceptional that an election should have been bypassed. The

NLRA gives most workers "the opportunity to decide whether they

want the union or not," Westinghouse Elec., 506 F.2d at 672, and the

employees of the SunSpot department should have that opportunity

also.

When the Board applied only the second prong of its announced

two-prong rule in this case, it breached the requirement of reasoned

decisionmaking by "applying a rule . . . which is in fact different from

the rule . . . formally announced." Allentown Mack, 522 U.S. at 374.

Moreover, substantial evidence did not support a conclusion that

either of the two prongs under the announced rule was met. We there-

fore grant the Company’s petition for review and deny the Board’s

petition for enforcement of its bargaining order.

In light of our ruling on the merits, we need not address the Com-

pany’s objection to the timeliness of the Union’s clarification petition.

PETITION FOR REVIEW GRANTED AND

ENFORCEMENT DENIED

KING, Circuit Judge, concurring in part and dissenting in part:

As my good colleague Judge Niemeyer correctly emphasizes, the

Regional Director appears in this case to have focused solely on the

THE BALTIMORE SUN v. NLRB 17

"community of interest" inquiry, while neglecting to conduct the dis-

tinct, albeit related and required, analysis of whether the SunSpot

employees could appropriately be considered a separate unit. Even if

the SunSpot employees were properly found to share a community of

interest with the employees in the Union’s existing bargaining unit,

accretion would nonetheless be improper if the SunSpot employees

could be regarded as a separate unit. I agree with the panel majority

that absent such a "separate unit" finding, the Regional Director’s

accretion analysis — adopted by the Board — is legally deficient.

I write separately, however, because I believe that, upon identify-

ing the Regional Director’s legal error, we should grant the Compa-

ny’s petition for review, deny the Board’s cross-petition for

enforcement, and remand so that the appropriate legal standard may

be applied by the Board. Rather than remanding to the Board, how-

ever, the majority makes its own findings, surmising that the SunSpot

department bears a separate identity sufficient to be considered an

appropriate bargaining unit. See ante at 13-14 ("Had the Regional

Director considered the first prong of the Safeway Stores rule, he

would not have been able to conclude that the SunSpot department

employees did not have a separate identity sufficient to be considered

an appropriate bargaining unit."). Then, having determined that "the

first prong of the applicable rule precludes accretion of [the SunSpot]

employees to another unit," the majority proceeds to review the

Board’s application of the "community of interest" prong. See ante at

14-16. This sort of activism is inappropriate, and I believe that we

should refrain both from reaching the merits of the first prong, i.e.,

whether the SunSpot employees actually constituted a separate unit,

and from reviewing the Regional Director’s application of the second

prong, i.e., whether substantial evidence supported a finding that the

SunSpot employees had an overwhelming community of interest with

the existing bargaining unit.

Indeed, remand on the first Safeway Stores prong obviates any

need to evaluate the second, "community of interest" prong at all.

Such a course of avoidance seems particularly wise when we have

substantial doubts concerning a core Board finding. After all, ascer-

taining whether employees share a community of interest — with

each other or with employees in an existing bargaining unit — is an

extremely fact-sensitive enterprise, with respect to which the Board

18 THE BALTIMORE SUN v. NLRB

is entitled to great deference. Disturbing a decision peculiarly within

the Board’s expertise is a grave judicial exercise, and one that should

be carried out with reluctance. The majority nevertheless opines that

while "some community of interest exists between SunSpot employ-

ees and the bargaining unit," such community of interest is insuffi-

cient to justify the Board’s accretion decision. See ante at 15

(emphasis in original). There is simply no reason, in this instance, to

engage in that sort of line-drawing.*

Because I agree that the Board’s decision was founded on the

application of an improper legal rule, I would, as explained above,

grant in part the Company’s petition for review, and deny the Board’s

cross-petition for enforcement. Rather than conducting our own

unwarranted evaluation of the merits, however, we should simply

remand the case to the Board for reconsideration.

*Less conspicuously, the panel majority ascribes "serious and prejudi-

cial error" to the hearing officer’s exclusion of certain evidence sought

to be introduced by the Company to show the SunSpot employees’ aver-

sion to union representation. See ante at 11 n.*. The majority neglects to

mention that the proffered statements were made in the course of settle-

ment discussions — and, as such, are of dubious admissibility. Rather,

the majority registers its "agree[ment]" with the Regional Director that

the exclusion of such evidence was "error," and cites cases supporting

the proposition that employee sentiment is relevant to representation

decisions.

Two additional points bear noting. While acknowledging that "the

Board will consider the desires of unrepresented employees in determin-

ing whether to accrete them to the existing unit[,]" the Regional Director

never explicitly concedes that exclusion of such evidence constituted

error. See J.A. 33 n.13. He simply states that, "in view of the other evi-

dence," the excluded statements "would not have been convincing in this

case." See id. Moreover, the majority makes no attempt to refute the

Regional Director’s factual conclusion — as by demonstrating, for exam-

ple, that the SunSpot employees had clearly manifested a will to remain

outside the bargaining unit — but simply engages in speculation as to the

gravity of the exclusion. See ante at 11 n.* ("Indeed, it is difficult to

imagine more probative evidence of the employees’ community of inter-

est and group identity than documentation of their sentiment about the

proposed accretion.").