The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
In the February 16, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04–60407
Summary Calendar
_______________
NATIONAL LABOR RELATIONS BOARD,
Petitioner,
VERSUS
SUPERIOR PROTECTION, INC.,
Respondent.
_________________________
Petition for Enforcement of an Order of
the National Labor Relations Board
m 16–CA–23210
_________________________
Before DAVIS, SMITH, and Superior contends that enforcement should be
DENNIS, Circuit Judges. denied on the sole ground that the collective
bargaining unit certified by the Board improp-
JERRY E. SMITH, Circuit Judge: erly accreted (i.e., added) employees hired
after the representation election into the certi-
The National Labor Relations Board (the fied bargaining unit without the benefit of an
“Board”) seeks enforcement of its order com- election, thus improperly assigning to the
pelling respondent Superior Protection, Inc. accreted employees the certified unit’s choice
(“Superior”), to bargain with United Govern- of bargaining representative.
ment Secuity Officers of America, Local 229.
We disagree. The Board’s bargaining unit Director directed that an election be held
determination did not automatically effect an among the employees in the unit. Superior
accretion of newly-hired employees, and the requested Board review of the decision to
union is not seeking to accrete those employ- include security officers from Montgomery and
ees as a consequence of the unit determination. Galveston Counties, but the Board denied the
Accordingly, we grant the Board’s application request, finding that Superior had failed to
for enforcement. raise any substantial issue warranting review.
I. A mail ballot election among unit employ-
Superior provides security services to ees was conducted by the Regional Director in
federal agencies pursuant to contracts with the October 2001. The secret ballots asked unit
General Services Administration (“GSA”). employees to vote up or down on whether
One of these contracts obligates Superior to they wished to be represented for purposes of
provide security officers to certain federal collective bargaining by the union. Of the 30
facilities in three Texas countiesSSHarris, unit employees then believed eligible to vote,
Montgomery, and Galveston. 20 cast ballots, of which 9 voted in favor of
In August 2001, the union filed a represen- representation by the union; 9 voted against;
tation petition with the Board seeking certifi- and 2 ballots were challenged and not counted.
cation as the collective-bargaining representa-
tive of security officers employed by Superior
and “assigned to work in federally owned and Superior and the union stipulated that one
leased property in Houston, Texas, including of the challenged ballots had indeed been cast
the immediate surrounding areas, under the by an ineligible voter. Thus, the single re-
Federal Government contract for security maining challenged ballot, which had been cast
services through the Employer (contractor).” by unit employee Kevin Trotter, was determi-
Superior opposed the petition, contending native. Superior maintained that Trotter was
that, although all security employees assigned
to work at GSA facilities in Harris County1
should be included, those in adjacent counties 2
(...continued)
(Montgomery and Galveston) should be provides:
excluded from the certified unit.
The following employees of the Employer con-
After a hearing, the Board’s Regional stitute a unit appropriate for the purpose of col-
Director issued a decision finding that all lective bargaining within the meaning of Section
security officers “assigned to work at GSA 9(b) of the Act:
contract facilities in Harris, Montgomery, and
Galveston counties” constituted the appropri- Included: All permanent, full-time and regular
ate collective bargaining unit.2 The Regional part-time security officers assigned to work at
GSA contract facilities in Harris, Montgomery
and Galveston counties.
1
The City of Houston is located primarily in
Harris County. Excluded: All office clerical employees, em-
ployees on temporary assignment, professional
2
The Regional Director’s unit determination employees, managers and supervisors as de-
(continued...) fined by the Act.
2
ineligible because he had been discharged In response, the union filed an unfair labor
before the election; the union countered by practices complaint with the Board charging
alleging that Superior had committed unfair Superior with refusing to bargain and failing to
labor practices by discharging Trotter for furnish requested information in contravention
having testified at the representation hearing of § 8(a)(1) and (5) of the National Labor
and for having engaged in union activity. Relations Act (“NLRA”), 29 U.S.C. §
158(a)(1), (5). The Board’s General Counsel
Superior and the union litigated the validity issued a complaint, and Superior filed an
of Trotter’s challenged ballot and the related answer in which it admitted its refusal to
unfair labor practices complaint in a consoli- bargain and to furnish requested information
dated proceeding before an administrative law but challenged the union’s certification as
judge (“ALJ”). In August 2002, the ALJ bargaining representative on grounds that
sustained the union’s unfair labor practices (1) the certified bargaining unit inappropriately
complaint, finding Superior’s proffered rea- included employees in Montgomery and
sons for discharging Trotter to be “pure sub- Galveston counties; and (2) Trotter was not an
terfuge, masking the true motive of retaliation eligible voter, and thus the union had not re-
for Trotter’s testimony at the Board proceed- ceived a majority of valid votes.
ing and his manifest support” for the union.
Thereafter, in a published decision issued in In January 2004, the Board issued a notice
July 2003, the Board adopted the ALJ’s unfair to show cause why summary judgment should
labor practices finding and directed the Re- not be granted in favor of the General Coun-
gional Director to open and count Trotter’s sel. Superior responded by restating its initial
ballot, issue a revised tally of ballots, and challengesSSthe certified bargaining unit was
provide the appropriate certification. See inappropriate, and Trotter was not eligible to
Superior Protection Inc., 339 N.L.R.B. 118 vote in the electionSSand by advancing a
(2003). challenge to the Regional Director’s decision
to direct a mail ballot election and to the
Trotter’s vote in favor of representation manner in which the election was conducted.
was added to a revised tally issued by the
Regional Director, yielding a 10 to 9 vote in
favor of union representation. On August 25, In addition, Superior averred for the first
2003, the Regional Director certified the union time that, even if the certified unit was appro-
as the exclusive collective-bargaining represen- priate as an original matter, it was no longer
tative of employees in the previously certified appropriate because (after the Regional Direc-
bargaining unit: “[a]ll permanent, full-time and tor’s initial unit determination) Superior had
regular part-time security officers assigned to entered into a second contract with GSA to
work at GSA contract facilities in Harris, provide security officers at eight additional
Montgomery and Galveston counties.” federal facilities within the geographic scope of
the certified unit. According to Superior, the
The union sought to bargain with Superior employees at these additional federal facilities
and requested information from Superior within the geographic scope of the certified
regarding unit employees. Superior refused to unit would effectively be accreted to the exist-
bargain and refused the union’s request to ing unit without an election, in violation of
provide information about unit employees. Board policy.
3
In August 2004, the Board granted sum- Second, the Board reasoned that the new
mary judgment in favor of the General Coun- employees would not automatically be
sel, holding that Superior’s admitted refusal to accreted to the existing unit as a consequence
bargain and furnish requested information of the Board’s unit determination, especially in
constituted unfair labor practices in violation light of Superior’s contention that the new
of § 8(a)(1) and (5). See Superior Protection employees outnumber the existing unit em-
Inc., 341 N.L.R.B. 35 (2004). In so doing, the ployees and of the Union’s apparent position
Board refused to reexamine Superior’s argu- (gauged from the separate representation
ments regarding the propriety of the three- petition filed by the Union) that the new em-
county certified bargaining unit and Trotter’s ployees constitute a separate appropriate bar-
eligibility, reasoning that they had been fully gaining unit. Third, the Board observed that
litigated and addressed in the pre-election Superior was not claiming that the two groups
proceeding and the consolidated ballot chal- of employees (old and new) had merged in a
lenge/unfair labor practices proceeding. The manner that had obscured their separate iden-
Board similarly rejected on procedural grounds tity. Consequently, the Board entered an
Superior’s challenge to the Regional Direc- order compelling Superior to bargain with and
tor’s decision to conduct a mail ballot election furnish information to the Union.
and to the manner in which the election was
conducted. Superior filed a motion for reconsideration
As for Superior’s claim that the certified alleging that a “cursory inquiry” conducted by
unit was no longer appropriate because the the company after the Board’s decision re-
employees at the eight additional GSA facili- vealed that the new employees at the addi-
ties it now services within the geographic tional GSA facilities had in fact merged or
scope of the certified unit would necessarily consolidated with the existing unit employees.
(and improperly) be accreted to the smaller The Board denied the motion, finding that
group of employees in the certified unit, the Superior had not carried its burden of demon-
Board rejected this claim on three grounds. strating that it had been diligent in discovering
First, the Board noted that there was no indi- all available evidence and that the evidence
cation that the Union was seeking to accrete was in fact previously unavailable. In May
these new employees to the existing unit; 2004, the Board filed the instant application
indeed, the Board pointed to a separate repre- for enforcement of its order compelling Supe-
sentation petition filed by the Union in January rior to bargain with and furnish information to
2003 seeking to represent the new employees the Union.
at the additional GSA facilities as a separate
and distinct bargaining unit.3 II.
Having abandoned a majority of the argu-
ments advanced to the Board,4 Superior now
3
This petition has been docketed and is referred
to by the Board in its summary judgment decision
as Case 16–RC–10480. The Board’s summary 3
(...continued)
judgment opinion reveals that the Regional Direc- pending resolution of this matter.
tor took no action on this separate representation
4
petition during the pendency of the instant repre- Because Superior’s brief deals only with the
sentation petition, instead holding it in abeyance alleged accretion, the company has abandoned its
(continued...) (continued...)
4
attacks the Board’s order on a single legal accretion doctrine thus assigns to the accreted
ground: It contends that, because the certified employees the existing unit’s choice of bar-
bargaining unit includes within its scope em- gaining representative. E.g., Baltimore Sun
ployees hired after the representation election Co. v. NLRB, 257 F.3d 419, 427 (4th Cir.
to work at additional federal facilities, the 2001). “Essentially, the doctrine is designed
Board improperly accreted these new employ- to preserve industrial stability by allowing
ees to the certified unit without affording them adjustments in bargaining units to conform to
an opportunity to manifest their will in a union new industrial conditions without requiring an
election. Because the union has not sought to adversary election every time new jobs are
accrete these employees, nor have the employ- created or other alterations in industrial rou-
ees been automatically accreted to the existing tine are made.” NLRB v. Stevens Ford, Inc.,
unit as a consequence of the Board’s unit 773 F.2d 468, 473 (2d Cir. 1985).
determination, this contention is unavailing.
Notwithstanding any benefits to industrial
A. stability, because accreted employees are
We review questions of law decided by the absorbed into an existing collective bargaining
Board de novo. “[I]f the Board’s construction unit without an election and are governed by
of the statute is ‘reasonably defensible,’ its the preexisting unit’s choice of bargaining
orders are to be enforced.’” NLRB v. Motor- representative, the accretion doctrine sits in
ola, Inc., 991 F.2d 278, 282 (5th Cir. 1993) substantial tension with the guarantee of em-
(quoting Standard Fittings Co. v. NLRB, 845 ployee self-determination reflected in § 7 of
F.2d 1311, 1314 (5th Cir. 1988)). the NLRA, which provides:
B. Employees shall have the right to self-orga-
An accretion occurs when new employees, nization, to form, join, or assist labor or-
or present employees in new jobs, perceived to ganizations, to bargain collectively through
share a sufficient community of interest with representatives of their own choosing, and
existing unit employees, are added to an exist- to engage in other concerted activities for
ing bargaining unit without being afforded an the purpose of collective bargaining or
opportunity to vote in a union election.5 The other mutual aid or protection, and shall
also have the right to refrain from any or all
4
(...continued)
5
arguments related to the propriety of the original (...continued)
certified unit; Trotter’s eligibility to vote in the un- align with existing unit employees, and the union
ion-shop election; the Regional Director’s decision attempts to add the new employees to the existing
to direct a mail ballot election; and its challenge to bargaining unit without an election. See generally
the manner in which the mail ballot election was Michael J. Frank, Accretion Elections: Making
conducted. Employee Choice Paramount, 5 U. PA. J. LAB. &
EMP. L. 101, 107–08 (2002); 1 THE DEVELOPING
5
The most common circumstances giving rise LABOR LAW 404 (Patrick Hardin ed., 3d ed. 1992)
to a claim of accretion involve an employer with a (“An employer’s acquisition or construction of an
preexisting bargaining unit that acquires an addi- additional operation or facility after the execution
tional facility where the new employees’ interests of the contract frequently gives rise to a claim of
(continued...) accretion.”).
5
such activities . . . . ployee elections, reserving accretion orders for
those rare cases in which it could conclude
29 U.S.C. § 157.6 Thus, although § 7 pro- with great certainty, based on the
vides employees with the right to bargain circumstances, that the employees’ rights of
collectively through “representatives of their self-determination would not be thwarted.”
own choosing” and “the right to refrain from” Baltimore Sun, 257 F.3d at 427.8 Accord-
collective bargaining,7 the accretion doctrine ingly, the Board will accrete employees to an
operates to contravene both of these existing unit without an election “only when
rightsSSi.e., accreted employees are forced to the additional employees have little or no
accept both union representation itself and separate group identity and thus cannot be
representation by a particular union without considered to be a separate appropriate unit
benefit of an election. and when the additional employees share an
overwhelming community of interest with the
Recognizing this conflict, the Board’s preexisting unit to which they are accreted.”
jurisprudence “has historically favored em- Safeway Stores, Inc., 256 N.L.R.B. 918
(1981) (footnotes omitted).9
6
See, e.g., Pix Mfg. Co., 181 N.L.R.B. 88, 90
8
(1970) (“[W]hen a claim of accretion is made to an See also Pan Am. Grain Co., 317 N.L.R.B.
existing unit, a favorable determination forecloses 442, 447 (1995) (“‘In furtherance of the statutory
a vote and restricts the employees in the exercise of duty to protect employees’ right to select their bar-
their basic right to select their bargaining represen- gaining representative, the Board follows a re-
tative. That right is the predominant consideration strictive policy in finding accretion.’”) (quoting
under Section 7 of the Act and is to be restricted United Parcel Serv., 303 N.L.R.B. 326, 327
only under ‘compelling conditions.’”); Baltimore (1991)); Boire v. Int’l Bhd. of Teamsters, 479 F.2d
Sun, 257 F.3d at 429 (noting that “misuse of 778, 795 (5th Cir. 1973) (“[T]he Board has tra-
accretion poses a significant threat to the self- ditionally been reluctant to find an accretion, even
determination rights of employees guaranteed by § where the resulting unit would be appropriate, in
7 of the NLRA”); NLRB v. Ill.-Am. Water Co., those cases where a smaller unit, consisting solely
933 F.2d 1368, 1377 (7th Cir. 1991) (“[C]ourts of the accreted unit, would also be appropriate and
exhibit heightened concern when applying the the § 7 rights of the accreted employees would be
accretion doctrine because the accreted employees better served by denying the accretion.”); Stevens
receive union representation without voicing their Ford, 773 F.2d at 473 (“[B]ecause the accretion
own choices through an election.” (citing Consoli- doctrine generally imposes a bargaining representa-
dated Papers, Inc. v. NLRB, 670 F.2d 754, 757 tive on employees without an election, it should be
n.4 (7th Cir. 1982)); id. (“To a certain extent, an employed restrictively, with close cases being
accretion interferes with the employees’ ‘freedom ‘resolve[d] . . . through the election process.’”
to choose their own bargaining agents.’”) (citing (quoting Westinghouse Elec. Corp. v. NLRB, 440
Consolidated Papers, 670 F.2d at 757 n.4). F.2d 7, 11 (2d Cir. 1971)).
7 9
See Baltimore Sun, 257 F.3d at 426 (“This See also Baltimore Sun, 257 F.3d at 428
core provision guards with equal jealousy employ- (“When the two-part test of Safeway Stores is
ees’ selection of the union of their choosing and faithfully applied, accretion of employees to a bar-
their decision not to be represented at all.”) (citing gaining unit will occur only in those extraordinary
Newport News Shipbuilding & Dry Dock Co., 233 cases in which the Board can be reasonably certain
N.L.R.B. 1443, 1452 (1977)). (continued...)
6
And, in furtherance of the NLRA’s policy tion petition was pending before the Board,
of employee self-determination, doubts as to the union filed a separate representation peti-
whether new employees share the requisite tion seeking to be certified as the exclusive
overwhelming community of interest with the collective bargaining representative of the new
existing unit are to be resolved through the employees at the additional facilities as a
election process.10 Moreover, the Board will separate and distinct bargaining unit. In fact,
not permit an accretion if the size of the group the union’s representation petition expressly
to be accreted overshadows the number of classified the scope of the proposed unit as
employees in the existing unit.11 including “[a]ll sites other than locations in”
the instant representation proceeding. (Em-
C. phasis added.)
There is no basis in the record warranting
the conclusion that the union is attempting to Because the union has not sought to accrete
accrete the new employees at the additional the new employees into the existing unit, Supe-
facilities to the certified unit. To the contrary, rior’s reliance on Renaissance Ctr. P’ship, 239
as the Board observed, while the representa- N.L.R.B. 1247 (1979), and evidence of an al-
leged merger between the two groups of
employees is particularly misplaced. In Re-
9 naissance, the Board dismissed a union’s
(...continued)
that no election is required and that the accreted clarification petition that sought to accrete a
employees share such similar interests with em- numerically larger group of new employees to
ployees in the bargaining unit that they would an existing bargaining unit, even though the
choose it.”). This test is substantially more strin- evidence revealed that the two groups of
gent than the traditional community of interest test employees merged and had become indistin-
applied in “the Board’s more ordinary decision to guishable. Here, however, the union is not
certify initially a particular group of employees as seeking to clarify the confines of the existing
an appropriate bargaining unit.” NLRB v. DMR unit by accreting new employees in light of
Corp., 795 F.2d 472, 475 (5th Cir. 1986). In that evidence of employee merger or consolidation,
context, “[t]he unit chosen need not be the most but instead is seeking to treat the new employ-
appropriate, but only one which is appropriate un- ees as a separate bargaining unit.
der the circumstances.” Ochsner Clinic v. NLRB,
474 F.2d 206, 209 (5th Cir. 1973). In the accre-
Moreover, we reject Superior’s contention
tion context, however, “[a] group of employees is
properly accreted to an existing bargaining unit
that the new employees at the additional GSA
when they have such a close community of interests facilities will automatically be accreted to the
with the existing unit that they have no true identity existing unit as a consequence of the unit
distinct from it.” NLRB v. St. Regis Paper Co., certified by the Board. Superior is no doubt
674 F.2d 104, 107-08 (1st Cir. 1982). correct that the certified unit includes on its
face all security employees staffing GSA
10
See, e.g., Baltimore Sun, 257 F.3d at 429; facilities in the three-county area.12 But,
Westinghouse, 440 F.2d at 11; Martin Marietta,
270 N.L.R.B. 821, 822 (1984).
12
11
See, e.g., Gould, Inc., 263 N.L.R.B. 442, As we have indicated, the certified bargaining
445 (1982). unit includes “[a]ll permanent, full-time and regu-
(continued...)
7
contrary to Superior’s assertions, this does not Superior devotes considerable ink to a propo-
mean that the new employees at the additional sition that appears to present a nearly insur-
facilities have been, or necessarily will be, mountable obstacle to a board finding of
accreted to the certified unit: “[T]he Board . accretionSSnamely, that the new security
. . does not automatically accrete employees at employees (of which there are 42) outnumber
a new [facility] solely because the unit de- the existing unit employees (of which there are
scription includes all the employer’s [facilities], 29).14 In fact, in rejecting Superior’s accretion
present and future, in a geographic area . . . .” argument, the Board recognized that “accre-
Coca-Cola Bottling Co., 310 N.L.R.B. 844, tion would be inappropriate if the employees at
844 (1993). Indeed, as the substantive law the additional facilities numerically over-
regarding accretion indicates, a finding of shadow the employees that existed at the time
accretion is far from automatic: The Board of the election.” Thus, should the union alter
will permit an accretion only in the small class its current course and eventually seek to
of cases warranting a finding that the new accrete the new employees to the existing unit,
employees cannot be considered a separate ap- Superior can raise this numerical objection
propriate unit and that they share an over- among others in that proceeding.
whelming community of interest with the
preexisting unit. ENFORCEMENT GRANTED.
To be sure, this case does present some cir-
cumstances that would militate in favor of a
finding of accretion by the BoardSSe.g., the
fact the new employees were acquired after the
unit determination but likely would have been
included in the certified unit if they had been
present earlier.13 At the same time, however,
13
(...continued)
12
(...continued) bargaining unit the new employees would, if
lar part-time security officers assigned to work at present earlier, have been included in the unit or
GSA contract facilities in Harris, Montgomery and covered by the current contract, then the Board
Galveston counties.” will permit accretion in furtherance of the
statutory objective of promoting labor relations
13
In this regard, consider, for example, the stability.
Board’s explanation in Pan American Grain of
when a finding of accretion would be justified: Pan Am. Grain, 317 N.L.R.B. at 447 (citing
Gould, 263 N.L.R.B. at 445).
One aspect of this restrictive policy has been to
14
permit accretion only in certain situations where See, e.g., Carr-Gottstein Foods Co., 307
new groups of employees have come into exis- N.L.R.B. 1318, 1318 (1992) (“When the unrepre-
tence after a union’s recognition or certification sented group sought to be accreted numerically
or during the term of a collective bargaining overshadows the existing unit, the board will not
agreement. If the new employees have such accrete the larger number of unrepresented em-
common interests with members of an existing ployees without giving them a chance to express
(continued...) their representational desires.”).
8