noting that "misuse of accretion poses a significant threat to the self-determination rights of employees guaranteed by § 7 of the NLRA”
How later courts described this case
- noting that "misuse of accretion poses a significant threat to the self-determination rights of employees guaranteed by § 7 of the NLRA”
- refusing to enforce an accretion order by the Board when it failed to consider the "little or no separate group identity" prong of the Safeway Stores stan- dard
- "This core provision guards with equal jealousy employees' selection of the union of their choosing and their decision not to be represented at all.”
- discussing application of 29 U.S.C. § 157
Written by the judges who cited it.
The opinion
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 “community of interest” inquiry, while neglecting to conduct the distinct, 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 identifying the Regional Director’s legal error, we should grant the Company’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, however, 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 430-31 (“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 431-32. This sort of activism is inappropriate, and I believe that we should refrain both from *433 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, ascertaining 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 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 employees and the bargaining unit,” such community of interest is insufficient to justify the Board’s accretion decision. See ante at 431 (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 prejudicial error” to the hearing officer's exclusion of certain evidence sought to be introduced by the Company to show the SunSpot employees' aversion to union representation. See ante at 428 n. *. The majority neglects to mention that the proffered statements were made in the course of settlement 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 determining 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 evidence," 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 example, 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 428 n. * ("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 accretion.").