# Petition for Writ of Certiorari — United Parcel Service, Inc. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0500%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1995 - **Citation:** 513 U.S. 1076 ## Text Supreme Court, U.S. ,s& 2 :°D 94 5309 SEP 231998 N we __OFFISE OF Hie, CLERK... IN THE Suprene Court of the United States OCTOBER TERM, 1994 UNITED PARCEL SERVICE, INC. and TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGOTIATING COMMITTEE, . Petitioners, NATIONAL LABOR RELATIONS BOARD, Respondent. Joint Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit JOINT PETITION FOR A WRIT OF CERTIORARI JUDITH A. SCOTT MARTIN WALD * CHRISTY HOFFMAN NICHOLAS N. PRICE 25 Louisiana Avenue, N.W. AXEL J. JOHNSON, IV Washington, D.C. 20001 CHRISTOPHER J. MORAN Attorneys for Teamsters SCHNADER, HARRISON, National United Parcel SEGAL & LEWIS Service Negotiating 1600 Market Street Committee Philadelphia, PA 19103 (215) 751-2188 Attorneys for United Parcel * Counsel of Record Service, Inc. tora: et WILSON - EPes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 BD ESF. 00 \ : QUESTIONS PRESENTED 1. Can the National Labor Relations Board properly find that an employer has unlawfully recognized a union as its employees’ collective bargaining representative where no evidence has been presented that the union lacked the support of a majority of the employees? 2. Is it permissible to apply a presumption that work- ers previously excluded from a bargaining unit do not support a union, when that presumption is not supported by either empirical evidence or policy considerations? 3. Can the National Labor Relations Board alter its well-established accretion doctrine to hold that employees who were historically not part of a bargaining unit can never be accreted to that unit, without giving any rea- soned analysis for such a change? (i) il PARTIES TO THE PROCEEDING AND DESIGNATION OF CORPORATE RELATIONSHIPS In accordance with Rule 29.1 of the Rules of the Su- preme Court of the United States the parties make the following disclosures: Petitioner, United Parcel Service, Inc., is comprised of two entities, one incorporated in the state of New York and one incorporated in the state of Ohio, both of which are incorporated under the name “United Parcel Service, Inc.” Neither corporation has an ownership in any other company that is not a wholly-owned subsidiary. The par- ent of both corporations is United Parcel Service of America, Inc. Petitioner, Teamsters National United Parcel Service Negotiating Committee, is not a corporate entity and has no corporate parents, subsidiaries or affiliates. TABLE OF CONTENTS Page bh oy tl 8 yy - | en re i PARTIES TO THE PROCEEDING AND DESIGNA- TION OF CORPORATE RELATIONSHIPS ............ ii TABLE OF AUTHORITIES ....................0..ccccccssseesees v OPINIONS BELOW .................... PREPAY BISHOPS Fe 1 STATEMENT OF JURISDICTION .......00000. 0... 2 STATUTORY PROVISIONS INVOLVED ..................... 2 STATEMENT OF THE CASE ....20.0.0....02...2..2ecccescceeeseeees 2 REASONS FOR GRANTING THE PETITION ........... 6 I. CERTIORARI SHOULD BE GRANTED BE- CAUSE THE COURT OF APPEALS’ DECI- SION ALLOWING A PRESUMPTION TO SUBSTITUTE FOR ADMISSIBLE EVIDENCE CONFLICTS WITH APPLICABLE PRECE- py ae EN)» 7 II. CERTIORARI SHOULD BE GRANTED BE- CAUSE THE COURT OF APPEALS’ DECI- SION ABSOLVING THE GENERAL COUN- SEL OF HIS BURDEN TO PROVE A LACK OF MAJORITY STATUS IN AN UNLAWFUL RECOGNITION CASE IS CONTRARY TO EVERY REPORTED PRECEDENT ON THIS GR EEE Ee eee cece eee 11 III. CERTIORARI SHOULD BE GRANTED BE- CAUSE THE COURT OF APPEALS’ DECI- SION FRUSTRATES THE IMPORTANT GOAL OF ENCOURAGING COLLECTIVE aii lake batulcsinierisnsn eres hicnicensienteinwsineenncnssscse 14 iv TABLE OF CONTENTS—Continued Page IV. CERTIORARI SHOULD BE GRANTED BE- CAUSE THE BOARD HAS ALTERED THE ACCRETION DOCTRINE IN A MANNER THAT CONFLICTS WITH THE DECISIONS Se AN IIT waceekcbss dsssdicesicesdcipssehsansststahbecuieodsnansevis 16 NS | ERE TU Signa oe OORT WE EPR IPTU ET ENN EET CAPA 18 APPENDIX Opinion of the United States Court of Appeals for the District of Columbia Circuit, dated March 25, RARE eS POOR: + VRS RENO GE ee es Lior bd AP LED TEM la Opinion and Order of the National Labor Relations pe 8 Se nee ne ene l4a Opinion of the Administrative Law Judge, dated es NE cate hs ea iiccds ic ceieaianiiahinues 30a Order of the United States Court of Appeals for the District of Columbia Circuit Denying Rehear- ing In Banc, dated July 20, 1994 0000... 52a Order of the United States Court of Appeals for the District of Columbia Circuit Denying Rehear- Bam, GEE UR Ta RO acai heise inn cnscebenisnctceniee 54a Judgment of the United States Court of Appeals for the District of Columbia Circuit, dated March Be. IE chetadgentactoneceandewachie beeen sdeeeednadboumine nies 55a Excerpts of the Transcript of the Hearing Before the Administrative Law Judge on January 8-9, SOREN eee ae EN UO Ey IN ea RMNO NS HUME CLS ORK 59a Vv TABLE OF AUTHORITIES CASES Page American Beef Packers, Inc., 187 N.L.R.B. 996 (1971), enf’d sub nom. Arthur L. Morgan Union, Local No. 3 v. NLRB, 463 F.2d 818 (D.C. Cir. URED sciniacivinthinonteizaetauntensscees aeiae ete 7, 12-13 Beth Israel Hospital v. NLRB, 437 U.S. 483 oe PIED sicasrdoninsomnoonncesaibintal dabitaameiureunsnteatesdt tr ene eas 9 Brooks v. NLRB, 348 U.S. 96 (1954) ....0.00.00..20... 9 Director, Office of Workers’ Compensation Pro- grams, Department of Labor v. Greenwich Col- Sorted, 1E4 BH, CE. SRGR CHD ance cscicncccssesec-ncs...<. 13 Great Atlantic & Pacific Tea Co., 140 N.L.R.B. BETES Eee aie ee ee 16 International Ladies’ Garment Workers’ Union v. SUR OS Uh FR GOURD wiksrteseceeecrertoe 7 King Radio Corp., 257 N.L.R.B. 521 (1981)............ 12 Laconia Shoe Co., 215 N.L.R.B. 573 (1974) ............. 12,17 Modine Manufacturing Co. v. NLRB, 453 F.2d Se Cee Ge SPE wks 7 Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. BP CREE cbc eee ee 6, 16 NLRB v. Baptist Hospital, Inc., 442 U.S. 773 IED necintgiiaiaescihlstelmeaenatetanece rates en ere 6,8 NLRB v. Burns Int’l Security Services, Inc., 406 Se SE I ak eect cede eae es 9 NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. ae ee a ek eee 6,9, 10, 15 NLRB v. Security-Columbian Banknote Co., 541 ae A ee ee SUEY eeikode sti aoccis cece tas 3 NLRB v. Transportation Management Corp., 462 US. 8938 (1982) ............. icin hclahre taiaee Le ei tae diet 6, 7 Playskool, Inc. v. NLRB, 477 F.2d 66 (7th Cir. DE oa. ARLE ALN ET a 8 LM RL Rag Tee 7 Progressive Construction Corp., 218 N.L.R.B. 1368 5g , , eS eR ares BE Pave ne ye RENT EE GRR reo 12 Rainey Security Agency, Inc., 274 N.L.R.B. 269 EOD iaccnisciizvnsventantex Gunes ee ee 7 Regency Gardens Company, 263 N.L.R.B. 1265 UIs sacvscucocescneccksuaenendaminciatadpeaaeaan ete maenaiameiaad 10 vi TABLE OF AUTHORITIES—Continued Page Republic Aviation Corp. v. NLRB, 324 U.S. 793 I a 9 Rust v. Sullivan, 500 U.S. 173 (1991) -................... 16 St. Regis Paper Co., 239 N.L.R.B. 688 (1978) ........ 16-17 United States Steel Corp., 280 N.L.R.B. 837 :_: RRSP RR Sire Cera NNER OE sn Pics 208 SAE 17 Walker's Midstream Fuel & Service Co., 208 A, SE MED ‘vnicsscccnonasectecsuinaiasenabaaaiaie 10 William Penn Broadcasting Co., 93 N.L.R. B. 1104 tS eee TER A Phere Sate Bs 7 STATUTES ye Be I eiicinseacseniscitetacsae Siemegiaceninan acne 7,13 ae U.BA. © ieee (1) ..............~ a a ee 2 RR 8b ERR Aina ieee lancaster pete roernateocoyt 14, 15 y Rik seh BEG) . | Re ENCEeR Meer emn 2,3 29 U.S.C. §§ 158(b) (1) (A) and (b) (2) -................. 2,3 BO GF ihe G ROSE) crnicscsssionstanichinnmieeaainns 7 IN THE Siyreme Court of the United States OCTOBER TERM, 1994 No. UNITED PARCEL SERVICE, INC. and TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGOTIATING COMMITTEE, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Joint Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit JOINT PETITION FOR A WRIT OF CERTIORARI United Parcel Service, Inc. and the Teamsters National United Parcel Service Negotiating Committee jointly peti- tion for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Colum- bia Circuit in this case. OPINIONS BELOW The opinior. of the court of appeals (la-13a) is re- ported at 17 F.3d 1518 (D.C. Cir. 1994). The decision and order of the National Labor Relations Board (14a- 2 51a) are reported at 303 N.L.R.B. 326 (1991). The decision of the Administrative Law Judge (30a-51la) is appended to the decision of the National Labor Relations Board. JURISDICTION The judgment of the court of appeals (55a-56a) was entered on March 25, 1994 and a petition for rehearing was denied on July 20, 1994 (52a-54a). The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). STATUTORY PROVISIONS INVOLVED The statutory provisions involved in this case are Sec- tions 8(a)(1)-(3) and Sections 8(b)(1)(A) and (b)(2) of the National Labor Relations Act, 29 U.S.C. §§ 158 (a)(1)-(3) and 158(b)(1)(A) and (b)(2). The full text of these provisions is set forth in the appendix (57a- 58a) in accordance with Rule 14.1(f) of the Rules of the Supreme Court of the United States. STATEMENT OF THE CASE Prior to 1979, ‘ocal unions affiliated with the Inter- national Brotherhood of Teamsters (“IBT”) represented most, but not all, of the “operations clerks” employed by United Parcel Service, Inc. (“UPS”) throughout the coun- try. In 1979, UPS and the IBT agreed to consolidate many smaller bargaining units into a single nationwide bargaining unit. For the next eight years, the parties dis- agreed over whether the nationwide bargaining unit of over 100,000 persons included those operations clerks who, prior to 1979, had not been represented by the IBT. In 1987, in the belief that the union enjoyed majoriiy support among the employees in question, the parties agreed to modify the language in their collective bar- gaining agreement expressly to include all operations clerks. Of the 2,000 to 3,000 operations clerks added to the bargaining unit, one employee, Sara Griffin, com- plained to the National Labor Relations Board (“NLRB” 3 or “Board”). Although Ms. Griffin lived in a “right- to-work” state and, thus, was not required to join the union, she nevertheless filed an unfair labor practice charge, alleging unlawful recognition i.e., violations of Sections 8(a)(1)-(3) and 8(b)(1)(A) and (b)(2) of the National Labor Relations Act (“NLRA”). The General Counsel subsequently issued a complaint against UPS and the IBT alleging that the union did not represent a majority of the employees who were added to the existing unit and, further, that those employees did not constitute a proper accretion to the unit. A full hear- ing on the charge was held before an Administrative Law Judge (“ALJ”). In accordance with the traditional analy- sis applied by the Board, the ALJ concluded that the operations clerks had been properly accreted to the exist- ing bargaining unit because they shared a strong “com- munity of interest” with the other IBT-represented em- ployees (47a, 50a-Sla).* Accordingly, the ALJ dismissed the complaint (51a). On exceptions filed by the General Counsel to the ALJ’s decision, the Board agreed that the employees added to the unit shared a community of interest with the other IBT-represented employees, but nevertheless held that they were not accreted to the unit (17a, 20a). The Board reasoned that accretion is never possible if the employees in question have historically been excluded from the bargaining unit (19a). ‘Having rejected the ALJ’s finding of accretion, the Board then concluded, with no discussion or explanation, that a majority of the employees added to the unit did not support the IBT (20a). 1“Simply stated, an accretion is the incorporation of employees into an already existing larger unit when such a community of interest exists among the entire group that the additional employees have no separate unit identity.” NLRB v. Security-Columbian Banknote Co., 541 F.2d 135, 140 (3d Cir. 1976). tained 4 The Board’s decision did not discuss the General Coun- sel’s burden of proving that a majority of the employees did not support the union, nor did it discuss the undis- puted fact that the General Counsel had failed to intro- duce any evidence that the IBT lacked majority support. Likewise, the Board’s decision did not address the evi- dence offered by the union that it did have majority support, and it totally ignored the uncontradicted evidence that only one out of the 2,000 to 3,000 affected employ- ees (Ms. Griffin) ever complained about being brought into the bargaining unit (59a-67a). Nevertheless, the Board concluded that UPS and the IBT had violated the NLRA by respectively recognizing and accepting recognition for a bargaining unit within which the Board asserted that a majority of employees did not support the union (20a). The court of appeals found that the Board’s “historical exclusion” rule—i.e., that accretion is never possible if the employees in question have historically been excluded from the bargaining unit—was reasonable (4a-9a). The court then turned to the question of whether the union lacked majority support among the employees. Citing well-settled precedent, the court acknowledged that “in cases alleging unlawful 8(a)(2) recognition it is the burden of proof of the General Counsel to establish that the union accorded recognition was not the majority rep- resentative” (10a) by introducing evidence that is “more than conjecture” (id.). Although, or perhaps because, the Board’s decision never addressed the General Counsel’s burden of proof, the court of appeals assumed that the Board had per- missibly applied a presumption that “the majority of a group that has historically been excluded from a bargain- ing unit does not support the union that represents that unit” (12a-13a). Allowing the General Counsel this pre- sumption, the court then shifted the burden to the union and the company to demonstrate that the union was in fact supported by a majority of the disputed clerks (12a). ee ss PURO 5 The court reasoned that a presumption of non-majority status after employees have historically been excluded from a bargaining unit was analogous to the presumption of continued majority status after a union has been recog- nized or certified by the Board (lla-12a). The court did not require any empirical evidence that this presump- tion was reasonable nor did it acknowledge that the Board applies a “no presumption” rule in cases where support for the union by employees hired during a strike is at issue. Thus, despite the fact that in cases alleging a violation of Section 8(a)(2), the General Counsel is required to produce evidence to support his claim that the union does not have majority status, the court concluded that, in the absence of affirmative evidence of majority support, the General Counsel was not required “to prove the negative” (13a). The court then granted enforcement of the Board’s order which requires UPS to withdraw and with- hold recognition from the IBT with respect to these em- ployees pending certification (13a, 31a). Moreover, the order holds UPS and the IBT jointly liable to reimburse employees for union dues and initiation fees unlawfully withheld—an amount that could potentially exceed one million dollars (21a). UPS and the IBT seek review of that decision, which conflicts with this Court’s decisions regarding the appro- priate use of presumptions, the procedure that an ad- ministrative agency must follow to change established rules, and which presents important questions of labor law. 6 REASONS FOR GRANTING THE PETITION Review of the court of appeals’ decision in this case is of exceptional importance because the decision sanctions the unprecedented and unwarranted result that the Board can find that the recognition of a union as the employees’ bargaining agent is unlawful without ever adducing evi- dence, let alone proving, that the union did not represent a majority of the employees involved. Thus, the court of appeals’ decision contravenes this Court’s decision in NLRB v. Transportation Management Corp., 462 U.S. 393, 401 (1983) which establishes that the General Counsel has the burden of proof in an alleged unlawful recognition case, and it frustrates two major goals of federal labor relations—the encouragement of collective bargaining and harmonious union-management relations. Review in this case is also warranted because the court of appeals’ decision irreconcilably conflicts with this Court’s decisions regarding the permissible use of pre- sumptions. In enforcing the Board’s decision, the court of appeals presumed, without any empirical evidence or policy support, that historically excluded employees do not support the union. Thus, the court of appeals deci- sion squarely conflicts with this Court’s decisions in NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775 (1990) and NLRB v. Baptist Hospital, Inc., 442 U.S. 773 (1979) which require that presumptions be supported on both empirical and policy grounds. Moreover, the presump- tion is irrational, irreconcilable with established Board law, and contrary to the policies underlying the NLRA. Finally, review is warranted because the Board’s deci- sion, as enforced by the court of appeals, alters a long- standing doctrine or rule without providing a reasoned basis for that change as required by this Court’s decision in Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42 (1983). Specifically, the Board failed to supply any reasoned analysis when chang- 7 ing the accretion doctrine from a “community of inter- est” analysis to an analysis that treats historical exclusion as a determinative factor. For these reasons, further re- view of the court of appeals decision is warranted. I. CERTIORARI SHOULD BE GRANTED BECAUSE THE COURT OF APPEALS’ DECISION ALLOWING A PRESUMPTION TO SUBSTITUTE FOR ADMIS- SIBLE EVIDENCE CONFLICTS WITH APPLICA- BLE PRECEDENT OF THIS COURT. It is clearly established that the General Counsel carries the burden of proving the elements of an unfair labor practice charge. See Transportation Management, 462 US. at 401; 29 C.F.R. § 101.10(b) (“the Board’s attorney has the burden of proof of violations of Section 8 of the [NLRA]”); 5 U.S.C. §556(d) (“the proponent of a rule or order has the burden of the proof”). In the context of an alleged unlawful recognition, the Board has held, without exception, that the General Coun- sel’s prima facie case requires proof of a lack of majority support. See, e.g., Rainey Sec. Agency, Inc., 274 N.L.R.B. 269, 279 (1985); see also, International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 738 (1961) (stating that the gist of a Section 8(a)(2) violation is the “grant of exclusive recognition to a minority union”). This burden of proving lack of majority support remains with the General Counsel even if a rival union’s certification peti- tion is pending. See e.g., Playskool, Inc. v. NLRB, 477 F.2d 66, 71 (7th Cir. 1973); Modine Mfg. Co. v. NLRB, 453 F.2d 292, 296 (8th Cir. 1971); William Penn Broad- casting Co., 93 N.L.R.B. 1104, 1106 (1951). Such proof requires evidence which is “more than conjecture.” Amer- ican Beef Packers, Inc., 187 N.L.R.B. 996 (1971), enf’d sub nom. Arthur L. Morgan Union, Local No. 3 v. NLRB, 463 F.2d 818 (D.C. Cir. 1972). 8 Acknowledging the undisputed law establishing the General Counsel’s burden of proof, and confronted with a case in which the General Counsel had adduced no evidence to satisfy this burden, the court of appeals assumed that the Board had applied a presumption that previously unrepresented employees do not support a union. The court of appeals stated: [I]t is reasonable for the Board to presume that, absent some indication to the contrary, the majority of a group that has historically been excluded from a bargaining unit does not support the union that rep- resents that unit. Without any affirmative evidence that the union has obtained majority support—such as a response to a union organizational campaign— there is simply no basis upon which to believe that the union in fact enjoys majority support. Having shown that there is no such basis in this case—and he can hardly do more to prove the negative—the General Counsel made his prima facie case; it was then up to UPS and the Teamsters to rebut him, and this they utterly failed to do. (13a) (emphasis added). The presumption inferred by the court of appeals can- not meet the standards established by this Court for allowing presumptions to substitute for evidence. More- over, the court of appeals’ decision is at variance with every other reported decision, since it held an employer and union liable for the former’s recognition of the latter, in the absence of any evidence that a majority of the affected employees did not support the union. In NLRB vy. Baptist Hospital, Inc., 442 U.S. 773, 787 (1979), this Court reaffirmed that “a presumption adopted and applied by the Board must rest on a sound factual connection between the proved and inferred facts” and that the validity of any presumption depends upon the rationality betwen what is proved and what is inferred. These requirements are rooted in a long line of this — | dom tate ee lee! 9 Court’s precedent concerning the application of presump- tions by the Board. See Beth Israel Hosp. v. NLRB, 437 U.S. 483, 504 (1978); NLRB v. Burns Int'l Sec. Servs. Inc., 406 U.S. 272, 279 n.3 (1972); Brooks v. NLRB, 348 U.S. 96, 98-99 (1954); and Republic Avia- tion Corp. v. NLRB, 324 U.S. 793, 804-05 (1945). In this case, neither the Board nor the court of appeals offered any basis to demonstrate the required sound fac- tual connection between what was proved—i.e., a group of previously unrepresented employees—and what was inferred—i.e., that such employees do not support the union. The court of appeals’ decision is also inconsistent with this Court’s holding in NLRB v. Curtin Matheson Scien- tific, Inc., 494 U.S. 775 (1990). In Curtin Matheson, an employer argued that persons who crossed picket lines to replace striking workers should be presumed not to support the union. 494 U.S. at 778. This Court rejected the employer’s position and upheld the Board’s applica- tion of a “no-presumption” rule in such cases. Id. at 796. In so ruling, this Court stated that, to be valid, a pre- sumption must be both empirically supported, and con- sistent with the policies of the NLRA. 7d. at 787. This Court concluded that the Board’s no-presumption rule passed muster under both prongs of this test. /d. at 796. The presumption in this case has neither the sound factual connection required by Baptist Hospital, nor the empirical and policy support required by Curtin Mathe- son. Tested against this Court’s precedent, the court of appeals’ presumption in the instant dispute that histor- ically excluded employees do not support the union must fail as irrational and inconsistent with the policies of the NLRA. First, the presumption that historically excluded em- ployees do not support the union is irreconcilable with established Board law. Such a presumption cannot be 10 reconciled with the Board’s no-presumption policy in the case of striker replacements which was endorsed by this Court in Curtin Matheson. If persons who cross picket lines to fill the jobs vacated by striking employees cannot permissibly be presumed to oppose the union, neither can those who were merely historically excluded from the bargaining unit. If the sentiments of striker replacements for or against the union should be assessed on the basis of the evidence and not presumptions, so should the views of previously unrepresented employees. Second, application of the court of appeals’ presump- . tion would eviscerate the well-established body of Board and court decisions that an employer need not possess tangible proof of a union’s majority status in order law- fully to recognize the union as the exclusive bargaining agent of the employer and employees. See Regency Gar- dens Co., 263 N.L.R.B. 1265 (1982) (noting that “there is no requirement that a union must have, and show to an employer, a majority of signed cards before a union may be lawfully recognized by an employer”); Walker’s Midstream Fuel & Serv., Co., 208 N.L.R.B. 158 (1974) (dismissing complaint even though, as here, the union did not attempt to claim majority status by producing recognition cards). Application of the presumption of the court of appeals would mean that any time a union seeks to represent previously unrepresented employees, the General Counsel’s burden to prove such recognition unlaw- ful would automatically be discharged by virtue of their previous unrepresented status. Such a result is contrary to all applicable precedents, statutes and regulations. Finally, the application of this presumption does not make common sense. Presumptions are used as an eviden- tiary tool when “proof of one fact renders the existence of another fact so probable that it is sensible and time- saving to assume the truth of [the inferred] fact .. . until the adversary disproves it.” Curtin Matheson, 494 U.S. at 788 (citing E. Cleary, McCormick on Evidence § 343, 11 at 969 (3d ed. 1984)). As in the situation involving striker replacements, there are many reasons, apart from anti-union sentiment, that workers may be excluded from a bargaining unit when it is first recognized or certified. Moreover, even if the excluded workers were generally opposed to the union when it initially became the bargain- ing representative, it stands to reason that these views may change if union representation proves beneficial to their co-workers. As applied in this instant case, application of the pre- sumption was especially illogical The ALJ expressly found (50a) that, of the 2,000 to 3,000 affected employ- ees, only one (Ms. Griffin) objected to being brought into the bargaining unit, and the IBT presented evidence (which the court of appeals acknowledged, but charac- terized as “impressionistic” (lla)) that it did have majority support (10a-lla). The General Counsel ad- duced not an iota of contrary evidence. Given these facts, it is far more rational to presume that the union did have majority support than to presume the contrary. Consequently, the court of appeals’ adoption of a pre- sumption of lack of majority support is both inconsistent with standards approved by this Court for assessing the validity of presumptions and is completely irrational. II. CERTIORARI SHOULD BE GRANTED BECAUSE THE COURT OF APPEALS’ DECISION ABSOLVING THE GENERAL COUNSEL OF HIS BURDEN TO PROVE A LACK OF MAJORITY STATUS IN AN UNLAWFUL RECOGNITION CASE IS CONTRARY TO EVERY REPORTED PRECEDENT ON THIS ISSUE. As discussed earlier, established precedent unequivo- cally holds that the General Counsel has the burden, in unlawful recognition cases, to prove that the union lacked majority support at the time of recognition. See supra, at 7. 12 The court of appeals recognized this principle (9a-10a) and purported to follow it, but in fact deviated sharply from it by ruling that the employer’s and union’s assertion of the defense of accretion required that a different rule be followed (lla). In so holding, the court of appeals deviated from every other reported decision on the issue of accretion. The cases are uniform in holding that accretion is an affirmative defense available to the employer and union even if the union lacks majority suport. See, e.g., Laconia Shoe Co., 215 N.L.R.B. 573, 575 (1974) (stating that, if the defense of accretion is established, “the extension: of recognition to the [union] was lawful whether or not the Shoeworkers enjoyed majority support among those employees”); King Radio Corp., 257 N.L.R.B. 521, 525 (1981) (recognizing that “accretion would constitute an absolute defense to the 8(a)(1) and (2) allegations” regardless of lack of majority). Thus, the threshold issue—even before considering the defense of accretion—was whether the General Counsel had established a prima facie violation of Section 8(a) (2), by proving that the IBT lacked majority support of the newly-included employees. On that threshold issue of majority support, it is well-established that the burden of proof rests with the General Counsel to show the absence of such support. See, e.g., Progressive Construc- tion Corp., 218 N.L.R.B. 1368, 1371 (1975): It was incumbent on General Counsel to adduce direct and affirmative evidence—such as proof that a majority of the unit employees did not sign author- ization cards or that they otherwise manifested unwillingness to be represented by Carpenters on the critical dates in issue. Similarly, in American Beef Packers, Inc., 187 N.L.R.B. 996, 997 (1971), aff'd sub nom. Arthur L. Morgan Union, Local No. 3 v. NLRB, 463 F.2d 818 (D.C. Cir. 1972), the Board dismissed a Section 8(a)(2) complaint, stating: 13 The circumstantial evidence relied on by the Trial Examiner in drawing an inference of lack of majority amounts to nothing more than conjecture. It is no substitute for proof, which is the General Counsel’s burden, that Amalgamated [the recognized union] did not in fact represent a majority of Respondent’s employees at the relevant times. Accordingly, we shall dismiss the complaint in its entirety. Consequently, by holding that the burden of proof on majority status should shift from the General Counsel to the employer and the union merely because the latter entities asserted the defense of accretion, the court of appeals ignored a uniform line of precedent holding that (1) it is the General Counsel’s burden in an unlawful recognition case to prove lack of majority support, and (2) accretion can be a valid defense even if majority support was lacking. The court of appeals’ decision in this case is also incon- sistent with this Court’s recent decision in Director, Office of Workers’ Compensation Programs, Department of La- bor v. Greenwich Collieries, 114 S. Ct. 2251 (1994). Greenwich Collieries holds that the phrase “burden of proof” as used in Section 7(c) of the Administrative Pro- cedures Act, 5 U.S.C. §556(d), means burden of per- suasion. 1148S. Ct. at 2257. The court of appeals attempted to justify its shifting the burden to UPS and the IBT by drawing an analogy to the burden of proof in cases where an employer is charged with illegally withdrawing recognition from a union (lla-12a). As the court noted (12a), the burden of proof in such cases is initially on the employer to demonstrate that it had a “good faith reasonable doubt” as to the union’s majority status before withdrawing rec- ognition; only if it meets that burden is the General Counsel obligated to produce evidence that the union in fact did enjoy majority support at the time recognition was withdrawn. 14 The court of appeals’ analogy provides no basis for shifting the burden of proof to the employer and union. The burden of proof in cases alleging unlawful with- drawal of recognition (the court’s analogy) has no rele- vance to the burden of proof in cases alleging unlawful recognition of a minority union (the present case). Thus, not only is the court of appeals’ analogy illogical and inconsistent with basic labor law principles,” but it pro- vides no basis for distinguishing the uniform line of cases holding that (1) the burden is on the General Counsel to prove lack of majority support, and (2) accretion is a defense even if majority support was lacking. Petition- ers request this Court to grant certification in order to rectify the court of appeals’ unprecedented deviation from these well-established principles. III. CERTIORARI SHOULD BE GRANTED BECAUSE THE COURT OF APPEALS’ DECISION FRUS- TRATES THE IMPORTANT GOAL OF ENCOURAG- ING COLLECTIVE BARGAINING. In addition to being inconsistent with this Court’s rul- ings on presumptions and with all reported decisions on “It is hard to imagine an action that is more clearly a direct interference with collective bargaining than an employer’s with- drawal of union recognition. By definition, an employer that with- draws recognition is disrupting an established bargaining relation- ship, and the employer’s action is directly antithetical to collective bargaining. Because one of the express goals of the NLRB is to “encouragfe] the practice and procedure of collective bargaining” (29 U.S.C. § 151, fifth paragraph), it is not surprising that the Board and the courts place the initial burden of proof on an em- ployer to justify its disruption of this bargaining relationship. In the present case, by contrast. UPS ond the IBT were not antagonists, but were in agreement. Indeed, the record clearly established that the parties’ conduct in bringing the previously- excluded clerks into the unit—which UPS did ecnlv in response to repeated pressure from the IBT—,resolved a long-festering dispute between the parties. Thus, the parties’ conduct here encouraged collective bargaining, rather than frustrated it as any withdrawal of recognition would do. ‘15 the burden of proof in recognition cases, the court of appeals’ decision is inconsistent with the NLRA’s “over- riding policy of achieving industrial peace.” Curtin Matheson, 494 U.S. at 794 (quoting Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 38 (1987)). An expressed goal of the NLRA is to “encourag[e] the practice and procedure of collective bargaining.” 29 U.S.C. § 151, fifth paragraph. Voluntary recognition fully credits that goal by achieving a collective-bargaining rela- tionship through the agreement of the employer and the union. The court of appeals’ decision frustrates the pur- poses of the NLRA by discouraging voluntary collective bargaining. While it is true that the NLRA seeks to preserve the free choice of employees as well as to encourage collec- tive bargaining, preservation of employee choice should be based on evidence, not presumptions. Had the Gen- eral Counsel proved by competent evidence that a ma- jority of the previously unrepresented employees did not support the union, one ordinarily could not quarrel with a finding that the freedom of employee choice should prevail over the goal of furthering collective bargaining (unless, of course, the elements of a valid accretion de- fense were present). However, where (as here) there was no evidence that the union lacked majority support, ap- plication of a presumption based solely on historical ex- clusion violated the goal of encouraging collective bar- gaining while doing nothing to preserve free choice of employees. In this case UPS voluntarily recognized the IBT as the exclusive representative of 2,000 to 3,000 previously un- represented clerks. These clerks received the full benefit of the UPS/IBT negotiated collective bargaining agree- ments. Not one of these clerks complained about the recognition or the attendant benefits, save a single voice from an individual who, because she resides in a “right- to-work” state, was not compelled to join the union. On the basis of a single dissent from a group of between 16 2,000 to 3,000 employees and the court of appeals’ irra- tional presumption, a stable collective bargaining relation- ship stands to be upset. The court of appeals’ presumption and burden-shifting approach inject an aura of uncertainty into the otherwise settled law on voluntary recognition. Such uncertainty has broad-based ramifications and is contrary to the NLRA’s goals of stabilization and industrial peace. This Court should grant this writ of certiorari and maintain the stability that the court of appeals’ decision threatens to disrupt. IV. CERTIORARI SHOULD BE GRANTED BECAUSE THE BOARD HAS ALTERED THE ACCRETION DOCTRINE IN A MANNER THAT CONFLICTS WITH THE DECISIONS OF THIS COURT. Administrative agencies may not alter established doc- trines unless they “supply a reasoned analysis for the change.” Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983); accord Rust v. Sullivan, 500 U.S. 173, 187 (1991). In this case, the Board not only failed to supply a reasoned analysis for changing the accretion doctrine, it also re- fused to admit that it was making a change. For this reason alone, the court of appeals erred in granting the petition to enforce the Board’s order. Prior to this case, the Board applied a multi-factored analysis in virtually every decision involving the accretion doctrine. See, e.g., St. Regis Paper Co., 239 N.L.R.B. 688, 691-92 (1978); Great Atl. & Pac. Tea Co., 140 N.L.R.B. 1011, 1021 (1963). The Board found an accretion if factors indicated that the employees shared a community of interest. As explained in St. Regis: Whether or not a particular operation constitutes an accretion or a separate unit turns, of course, on the entire congeries of facts in each case. ... [T]he Board has given weight to a variety of factors, such ee NP as Sill gn et ah Apt ee OO AS i Big IE PUAN: Pets Sek een Ea lot hat PS UNAM a NE WR eae oe ie Was 17 as integration of the operations; centralization of man- agerial and administrative control; geographic prox- imity; similarity of working conditions, skills, and functions; common control over labor relations; col- lective-bargaining history; and interchangeability of employees. Obviously, cases in which all of these, or only these, positive accretion factors are present are rare. For, the normal situation presents a variety of elements, some militating toward and some against accretion, so that a balancing of factors is necessary. 239 N.L.R.B. at 691. Contrary to its own established precedent, the Board now argues that the historical exclusion factor—i.e., whether the employees have historically been a part of the bargaining unit—is alone determinative. In attempt- ing to justify the Board’s historical exclusion rule, the court of appeals’ decision twice quotes from the ALJ’s decision in Laconia Shoe Co., 215 N.L.R.B. 573 (1974). However, in Laconia Shoe, the Board expressly found that the General Counsel had met his burden of proving a lack of majority status. 215 N.L.R.B. at 573 n.l. Therefore, the so-called historical exclusion rule was ir- relevant and the language quoted by the court of appeals is merely dicta. Moreover, in United States Steel Corp., 280 N.L.R.B. 837, 837 n.2 (1986), a case decided eight years after Laconia Shoe, the Board expressly rejected this so-called historical exclusion rule, stating: While we agree with the judge’s finding that the Respondent’s truckdrivers at the Antioch facility do not constitute an accretion to the existing bar- gaining unit of warehouse employees, we do not adopt the judge’s analysis that the “controlling factor” here is the long bargaining history of separate units of warehouse employees and _truckdrivers. Rather, we find, after examining all of the accretion factors traditionally considered by the Board, that the two employee groups continued to maintain their 18 separate identities despite certain changes made in the drivers’ duties. (emphasis added). Thus, United States Steel reaffirmed that historical exclusion is not the determinative factor in a proper accretion analysis. The Board was not entitled to change its rule on accretion to make the historical exclusion factor determinative unless it provided a reasoned analysis to support that change. It did not, and it could not, because such a change is irrational and contrary to the policies underlying the NLRA. . CONCLUSION For the foregoing reasons, petitioners, United Parcel Service, Inc. and the Teamsters National United Parcel Service Negotiating Committee respectfully request that this Court grant their petition for a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. Respectfully submitted, JUDITH A. SCOTT MARTIN WALD * CHRISTY HOFFMAN NICHOLAS N. PRICE 25 Louisiana Avenue, N.W. AXEL J. JOHNSON, IV Washington, D.C. 20001 CHRISTOPHER J. MORAN Attorneys for Teamsters SCHNADER, HARRISON, National United Parcel SEGAL & LEWis Service Negotiating 1600 Market Street Committee Philadelphia, PA 19103 (215) 751-2188 Attorneys for United Parcel * Counsel of Record Service, Inc. ’ la APPENDIX A UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT Nos. 91-1314, 91-1317 TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGO- TIATING COMMITTEE and INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 385, AFL-CIO, Petitioners/Cross-Respondents, V. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner. UNITED PARCEL SERVICE, INC., Petitioner/Cross-Respondent, V. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Peiitioner. Petitions for Review and Cross-Petitions for Enforcement of an Order of the National Labor Relations Board Argued Sept. 8, 1993 Decided March 25, 1994 2a Before BUCKLEY, GINSBURG, and HENDERSON, Circuit Judges. Opinion for the Court filed by Circuit Judge GINS- BURG. GINSBURG, Circuit Judge: The Teamsters National United Parcel Service Nego- tiating Committee and United Parcel Service, Inc. sepa- rately petition for review, and the National Labor Rela- tions Board applies for enforcement, of a Board order (1) requiring the Company to withdraw recognition of the Union as the representative of certain operations clerks; and (2) requiring the Company and the Union to reimburse those clerks for dues payments that had been deducted from their paychecks during the period that the Company recognized the Union as their repre- sentative. Because the order is supported by substantial evidence and is consistent with prior Board precedent concerning accretions to a bargaining unit, we deny the petitions for review and grant the Board’s petition to enforce the order. I. Background Prior to 1979, operations clerks at various UPS facili- ties were separately represented by approximately 220 different local unions, all of which were affiliated with the International Brotherhood of Teamsters. At that time, about 40% of UPS’s operations clerks were not covered by a contract between UPS and a local union. In 1979, however, the Company recognized the Teamsters as the representative of all operations clerks in a new nation- wide bargaining unit; and all of the local unions were merged into the national unit. Under their new nationwide collective bargaining agreement, the Company and the Union agreed that “{e]mployees covered by this agreement shall be con- strued to mean, where already recognized .. . clerks... .” Following execution of the contract, the Union contended ane Sifted esi olin.’ hres 3a that this provision meant that all clerks employed by the Company were covered by the agreement; the Company countered that only those clerks previously represented by one of the Teamster locals were covered by the agree- ment. In practice, the Board found only those clerks that had previously been represented by one of the local unions were treated by the parties as represented by the Team- sters under the nationwide agreement; the other clerks were excluded from the bargaining unit. Therefore, when the parties renegotiated the agreement in 1982, the Union proposed to delete the limiting phrase (“where already recognized”) from the coverage provision quoted above and the Company insisted upon retaining it. When the Union again argued in 1987 that it should be treated as the representative of all the clerks, the Company finally agreed: “effective August 1, 1987, the Employer recog- nize[d] [all clerks] as bargaining unit members.” The new agreement also contained a union security clause that required all employees to pay dues and initiation fees as a condition of employment (where state law permitted). The Company therefore began to deduct Union dues and initiation fees from previously unrepresented clerks who completed a dues checkoff form. Upon a charge filed by an operations clerk from whom Union dues were newly deducted in 1987, the General Counsel charged the Company and the Union with vari- ous unfair labor practices in violation of §$ 8(a)(1)-(3) and 8(b)(1)(A) and (2) of the Labor Management Re- lations Act. An Administrative Law Judge found that the previously unrepresented clerks had been properly accreted to the existing bargaining unit, and therefore held that there was no unfair labor practice in agreeing that the Company would recognize the Union as the bar- gaining representative for all operations clerks. United Parcel Services, Inc., 303 N.L.R.B. 326, 330-36 (1991) (ALJ Opinion). The Board, however, rejecting the 4a ALJ’s opinion, held that the Company and the Union had violated the Act by respectively recognizing and ac- cepting recognition for a bargaining unit within which a majority of employees had not picked the Union as their representative. See id. at 326-30 (Board Order); see also International Ladies Garment Workers’ Union v. NLRB (Bernhard-Altmann Texas Corp.), 366 U.S. 731, 738-39, 81 S.Ct. 1603, 1608, 6 L.Ed.2d 762 (1961) (holding that “employer support of a minority union” and the minority union’s acceptance of such recognition are un- fair labor practices); Human Development Ass'n _ v. NLRB, 937 F.2d 657, 665 (D.C.Cir. 1991) (same}. The Board ordered the Company to withdraw recognition from the Union with respect to the previously unrepre- sented clerks until such time as the Board might certify the Union as their exclusive representative, and ordered the Company and the Union to reimburse the clerks for the dues and initiation fees that were unlawfully collected from them. II. Analysis The petitioners attack the Board’s order on two fronts. First, they argue that precedent requires the Board to apply its “community of interest” standard for evaluating an accretion to a bargaining unit, under which (they claim) the accretion of the clerks would have passed muster. In the alternative they contend that the Union had majority status among the accreted clerks and was therefore lawfully recognized by the Company. A. Were the Clerks Lawfully Accreted? An accretion occurs whenever new employees are added to an existing bargaining unit. In contested cases the Board generally applies a community of interest test for determining the legality of an accretion. That test involves an examination and balancing of such factors as “integration of operations, centralization of managerial and administrative control, geographic proximity, similar- ity of working conditions, skills and functions, common oar Te nike, Sate 182 Maeda? Vt i OAR a NRT OI a a & elie al se Samana Etat dt Pan, tke Sim axa SR eC ss de tile mS A bite 5a control of labor relations, collective-bargaining history, and interchange of employees.” Gould, Inc., 268 N.L.R.B. 442, 445 (1982). In this case, however, the Board declined to apply the community of interest test, holding that “the fact of [the clerks’] historical exclusion [from the bargaining unit]... is determinative” that they could not be accreted to the unit except by a showing of majority sentiment among them. 303 N.L.R.B. at 327 (emphasis omitted). In other words, if neither the Company nor the Union insisted upon including a particular group of employees in a bar- gaining unit at its formation, then the excluded employees are thereafter conclusively presumed to lack a community of interest with those in the bargaining unit. Both the Company and the Union attack the Board’s holding as contrary to Board precedent and therefore arbitrary and capricious. See International Union of Petroleum & Industrial Workers v. NLRB, 980 F.2d 774, 778 (D.C. Cir.1992). The Board based its holding in this case on its prior decision in Laconia Shoe, 215 N.L.R.B. 573 (1974), in which it stated: When a group has in fact been excluded for a signifi- cant period of time from an existing production and maintenance unit, the Board will not permit their accretion without an election or a showing of major- ity among them even if no other union could obtain representative status for them. Id. at 576. That decision fully supports the Board’s formulation in this case—that the clerks’ “historical ex- clusion . . . is determinative” against their later accretion absent evidence of the majority’s preference. The Union, however, argues both that Laconia Shoe was wrongly decided—specifically, that the case upon which the Board based that decision, Sterilon Corp., 147 N.L.R.B. 219 (1964), does not support the conclusion 6a reached in Laconia Shoe—and that the Board has not consistently applied it to cases like the present one. As to the former point, we do not think it necessary, in view of the intervening case law, to re-examine the fundaments of Laconia Shoe. Both the Board and the courts recog- nize that the Laconia Shoe doctrine is critical to the pro- tection of employees’ Section 7 right to choose whether to belong to a union and if so to which one. As the Second Circuit perceptively stated the matter in NLRB v. Stevens Ford, Inc., 773 F.2d 468 (1985): If groups of employees may be permissibly accreted to a bargaining unit after they have been earlier ex- cluded from an election in that unit, strategic selec- tion of one group for election purposes followed by accretion will lead to a larger bargaining unit in which the bargaining representative does not have majority status. Such boot-strapping violates the Act’s policies favoring the free choice of employees. Id. at 474; see also King Radio Corp., 257 N.L.R.B. 521, 526 (1981) (no accretion of group excluded when bar- gaining unit was formed regardless of commonality of interests ). The petitioners’ argument that the Board has not ap- plied Laconia Shoe consistently rests primarily upon its decision in St. Regis Paper, 239 N.L.R.B. 688 (1978), aff'd, 255 N.L.R.B. 72 (1981), enf'd, 674 F.2d 104 (lst Cir.1982). The employer in that case had entered into a collective bargaining agreement that was expressly limited to the mechanics at its garage in Bucksport, Maine. When the company later opened an additional garage at First Lake and staffed it by transferring union members from the Bucksport facility, it recognized that the transferred mechanics continued to be represented by the Union, but it refused to renegotiate the provision of the collective bargaining agreement limiting its coverage to the Bucksport garage. Eventually, the employer hired new non-union mechanics for the First Lake garage and transferred the union members back to Bucksport. ed hi Ati ited id. Chane ities rae ony en BAAN Ra oR ale abl ADU OM HON pe i Renner de etic i a Ja The Board found that the new mechanics at the First Lake facility had lawfully been accreted to the Bucksport bargaining unit, in part because the First Lake mechanics “had been governed by the contract between [the em- ployer] and the union [even though] the contract pur- ported to cover Bucksport only.” To our reading, this suggests that the accretion occurred when the new garage was opened, and that no employees were ever “historically excluded” from the bargaining unit. St. Regis Paper does not, therefore, demonstrate that the Board has failed to apply the Laconia Shoe rule consistently. Nor does Lammert Industries v. NLRB, 578 F.2d 1223 (7th Cir.1978), which involved the physical consolida- tion of one union facility with 19 employees, and one non-union facility with seven employees, into a new facil- ity. In Lammert, the Board ultimately found that the union retained its majority status at the new facility and therefore permitted it to represent all 26 employees. Al- though the combination of the previously unrepresented employees with the existing bargaining unit was (rather loosely in our view) termed an accretion, Lammert is uniquely addressed to the physical consolidation of a union and a non-union facility at a single location; it has no application to the accretion of employees who had historically been excluded from a bargaining unit. There- fore, the petitioners have failed to document their claim that the Board has not applied Laconia Shoe consistently since it was decided. Finally, the petitioners argue that if the Board is to apply the rule of Laconia Shoe, then precedent and the facts of this case require it (1) to find that the Union did not acquiesce in the exclusion of any clerks from the bargaining unit and (2) then to weigh the Union’s non- acquiescence heavily in its analysis of whether a lawful accretion occurred. According to UPS, for example, “Laconia Shoe makes clear that the question of union acquiescence remains essential to an accretion analysis.” UPS Br. at 19. In sharp contrast, the Board maintains 8a that it is irrelevant whether the Union acquiesced in the clerks’ exclusion, and that in any event the Board prop- erly found that the Union had acquiesced in their exclu- sion when it accepted a contract that did not include them in the national bargaining unit. In deciding this case, the Board clearly treated ac- quiescence as irrelevant to the exclusion issue. See 303 N.L.R.B. at 327. Nor does any of the accretion decisions that the petitioners cite demonstrate that the Board has previously deemed acquiescence a pre-requisite to finding that the historical exclusion of certain employees barred their accretion to an existing bargaining unit. Sunar- Hauserman, 273 N.L.R.B. 1176 (1984), a case upon which the petitioners rely heavily, arose from a unit clarification petition; it is simply inapplicable in the ac- cretion context. Even if SunarHauserman were applicable, moreover, it would not sustain the petitioners’ position. In that case, the Board found that “[t]he Union did not abandon its proposal to include [in the unit the new posi- tion of] dock auditor in exchange for a concession during bargaining” but rather expressly preserved its right to seek a bargaining unit clarification. 7d. at 1177. In con- trast, here the Teamsters twice agreed to the “where al- ready recognized” limitation on the bargaining unit and never reserved the right to seek, much less sought, a bar- gaining unit clarification. Indeed, the Union claims only that it proposed to eliminate the exclusionary clause in later contract negotiations and in the interim pressed the Company on the matter. Similarly, the petitioners assert that in Color Tech Corp., 286 N.L.R.B. 476 (1987), the Board based its no-accretion holding crucially upon the union’s not hav- ing initially sought to cover the disputed employees in its collective bargaining agreement. The Board did indeed note that the union had never sought to include the allegedly accreted employees in the bargaining unit, but it recounted that merely as evidence of their historical exclusion from the unit. See id. at 487. Nowhere in EE Pray ee baad 9a that case did the Board indicate that union acquiescence vel non in the employees’ exclusion is a factor to be con- sidered in determining whether the historical exclusion of a group of employees precludes their later accretion. The only decision that even remotely supports the petitioners’ position is King Radio Corp., 257 N.L.R.B. 521 (1981), in which the Board mentioned that the union had in the past “consciously excluded” the em- ployees that it was then seeking to include by accretion in the bargaining unit. See id. at 526. In context, how- ever, it is clear that the Board treated that fact as nothing more than additional evidence of the employees’ historical exclusion. In sum, the cases cited by the petitioners suggest only that the Board considers a union’s course of conduct as a factor in determining whether a group of employees was in fact historically excluded from a bargaining unit. To infer from this, however, that the union’s acquiescence is a prerequisite to the Board’s finding that a group of em- ployees was historically excluded would be significantly . to overread the cases. Never having held, in terms or de facto, that the union’s acquiescence is a prerequisite to finding that employees were historically excluded from a bargaining unit, the Board was not obliged to determine whether the Union in this case acquiesced (as matter of law) in the exclusion of certain clerks from the nationwide UPS bargaining unit, or if it did not, whether its nonacquiescence means that the employees were not (again, as a matter of law) historically excluded from the unit. Therefore, the previ- ously unrepresented clerks could not be incorporated into that unit absent a showing of majority support among them for the union. B. Did the Union Have Majority Support? The petitioners argue next that the Board’s order should be set aside because the General Counsel failed to show that the Union lacked majority support among 10a the allegedly accreted clerks. If the Union had such ma- jority support, then the Company was of course entitled to recognize it as their exclusive bargaining representa- tive. The law is clear that “in cases alleging unlawful 8(a)(2) recognition, it is the burden of proof of the General Counsel to establish that the union accorded recognition was not the majority representative.” Rainev Security Agency, Inc., 274 N.L.R.B. 269, 279 (1985) (internal quotations and citations omitted). It is equally clear that in meeting his burden of proof, the General Counsel must rely upon “more than conjecture,” i.e., must produce evidence that the Union did not enjoy majority support. American Beef Packers, 187 N.L.R.B. 996, 997 (1971), enf'd, 463 F.2d 818 (D.C.Cir.1972); see also Regency Gardens Co., 263 N.L.R.B. 1265, 1269 (1982). The record in this case is also clear. To quote the Board, it was undisputed that the Employer did not ask for and the Union did not proffer proof of majority support for the Union in the group of previously unrepre- sented employees. An official of the Union testified about his belief that the Union had majority support in this group, but he admitted that he had no ‘papers,’ including authorization cards, to support this belief. 303 N.L.R.B. at 326. Further, we note that prior to prosecuting the complaint in this case, the General Counsel subpoenaed “all books, papers, documents, cor- respondence, notes or other writings showing that on or before August 1, 1987, a majority of operations clerks employed by UPS who had not been represented by the Teamsters prior to August 1, 1987 designated the Team- Sters as their collective bargaining representatives.” Hear- ing Trans. at 55. The Union produced nothing in re- sponse. At the hearing before the ALJ, a Union official ee ere Mee TRS ee ee biti lla confirmed that he had “no records or papers to verify that.” Jd. Instead, he testified that he believed that the Union had majority status solely upon the basis of con- versations he had had with various of the previously un- represented clerks. See id. at 53. The petitioners’ argument raises the question whether the Board could properly find that the General Counsel discharged his burden of proof by showing that the Union’s claim to majority support was entirely impres- sionistic and unsupported either by documentation or by any other indicia of employee sentiment. In another con- text we might well doubt whether the General Counsel’s reliance upon these facts amounts to anything “more than conjecture.” There is, after all, no general requirement that a union have documentary or indeed any specific type of evidence, such as authorization cards, to support its claim to majority support. The General Counsel’s burden should be sensitively calibrated, however, to the context in which it must be carried—in this case, a context formed by the doctrines of accretion and historical exclusion. We repeat the pas- sage from the Board’s opinion in Laconia Shoe, quoted above: “When a group has in fact been excluded for a significant period cf time from an existing production and maintenance unit, the Board will not permit their accretion without an election or a showing of majority among them even if no other union could obtain repre- sentative status for them.” 215 N.L.R.B. at 576. With this statement of the substantive law in mind, we do not see how the General Counsel could be expected to prove more, in his prima facie case against accretion, than the fact that the employees in question were historically ex- cluded from the putative bargaining unit. It was, of course, open to the Union to rebut the General Counsel’s prima facie case by producing some reliable evidence of its majority status, but it failed to do so. We see a close analogy between the manner in which the Board allocated the burden of proof in this case and the way in which the Board proceeds when an employer 12a has withdrawn its recognition of a union that it had recognized either voluntarily or after certification by the Board. Such a union benefits from the presumption of continued majority status. See, e.g., Sullivan Industries v. NLRB, 957 F.2d 890, 897 (D.C.Cir. 1992). Hence, if the employer ceases to recognize and to bargain with the union, it commits an unfair labor practice unless it can demonstrate, based upon clear and cogent evidence, that it had a “good faith reasonable doubt” as to the union’s majority status. See, e.g., Sullivan Industries, 957 F.2d at 897-98; NLRB vy. Creative Food Design Ltd., 852 F.2d 1295, 1300-01 (D.C.Cir. 1988). If the em- ployer succeeds in making this showing, the burden then shifts to the General Counsel to produce evidence that the union did, in fact, enjoy majority support when the employer withdrew its recognition from the union. See Creative Food Design, 852 F.2d at 1300. Although the roles are reversed here, the situation is essentially similar. By showing that the disputed clerks had historically been excluded from the Teamsters Union, the General Counsel cast substantial doubt upon the Union’s majority status among them. This doubt, which is founded upon fact and is thus “more than conjecture,” is enough in the context of an aileged accretion, to satisfy the General Counsel’s burden. The burden then shifted to the Union and the Company to demonstrate that the Union was, in fact, supported by a majority of the dis- puted clerks when the Company recognized it as their representative. | In light of the Board’s explanation of the policies that underlie the accretion doctrine, this manner of proceeding makes eminently good sense. If a union and an employer could accrete unrepresented employees to an existing unit merely by claiming to be under the impression that the union has majority support among them, then the accre- tion doctrine would do little to protect the employees’ right not to be represented by that union. In other words, 13a it is reasonable for the Board to presume that, absent some indication to the contrary, the majority of a group that has historically been excluded from a bargaining unit does not support the union that represents that unit. Without any affirmative evidence that the union has ob- tained majority support—such as a response to a union organizational campaign—there is simply no basis upon which to believe that the union in fact enjoys majority support. Having shown that there is no such basis in this case—and he can hardly do more to prove the nega- tive—the General Counsel made his prima facie case; it was then up to UPS and the Teamsters to rebut him, and this they utterly failed to do. Hence, the Board prop- erly concluded that the Union lacked the necessary ma- jority support when the Company recognized it as the representative of the previously unrepresented clerks. III. Conclusion In sum, we find that the Board properly applied its prior decisions to conclude that the unrepresented clerks employed by the Company could not lawfully be accreted to the existing bargaining unit without a showing of ma- jority support among them for the Union and that the Union did not in fact enjoy majority support among them. Therefore, we grant the Board’s petition for enforcement and deny the Company’s and the Union’s petitions for review. So ordered. l4a APPENDIX B D-2042 Rockledge, FL UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD Case 12-CA-12749 UNITED PARCEL SERVICE, INC. and SARA F. GRIFFIN, an Individual Case 12-CB-3028 TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGOTI- ATING COMMITTEE AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 385, AFL-CIO, ITs AGENT and SARA F. GRIFFIN, an Individual DECISION AND ORDER The issue presented is whether Respondent United Par- cel Service (UPS) and Respondent Teamsters violated Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the Act, respectively, by executing and main- 15a taining a collective-bargaining agreement in 1987 which extended an existing nationwide bargaining unit to in- clude a group of employees who had historically been excluded from that unit. The judge found that the chal- lenged action involved a lawful accretion.’ For the rea- sons set forth below, we find merit in the General Counsel’s exceptions to this finding. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings,’ findings, and conclusions only to the extent consistent with this Decision and Order. UPS engages in the interstate transportation and dis- tribution of parcels. Prior to 1979, approximately 220 local unions of the International Brotherhood of Team- sters had individual bargaining relationships with various UPS facilities located throughout the country. Operations clerks * were included in the bargaining unit at some facili- ties and were excluded from the unit at other facilities. 10On July 27, 1990, Administrative Law Judge William N. Cates issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondents filed briefs in opposition to the General Counsel’s exceptions and in support of the judge’s decision. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. 2The judge granted the General Counsel’s motion to strike attachments to the Respondent Employer’s posttrial brief on the basis that these attachments were not part of the record. The Respondent Employer has not excepted to the judge’s ruling but has appended the same documents to its answering brief. We have again stricken these documents and have not considered them in deciding the issues presented in this case. % The term operations clerk refers to employees in the following classifications: rewrap clerk, bad address clerk, post card clerk, operating center clerk, air operations clerk, package return clerk, damage clerk, and hub and air-hub return clerks. The general function of operations clerk is to process packages through the system for ultimate delivery to the customers. | l6a In 1979, UPS and the Teamsters executed their first National Master Agreement consolidating all previously represented units into a single nationwide bargaining unit. Article 1, section 2, of that agreement was entitled “Em- ployees Covered” and stated “Employees covered by this Agreement shall be construed to mean, where already rec- ognized . . . clerks.” The term “clerks” referred to opera- tions clerks. Approximately 40 percent of UPS operations clerks had not previously been represented in a recognized Teamsters bargaining unit when the 1979 National Master Agree- ment was executed. Notwithstanding the contract refer- ence to coverage of clerks “where already recognized,” the Union asserted that all operations clerks should be cov- ered by the 1979 agreement. The contrary view of UPS prevailed in practice, however, so that previously unrep- resented operations clerks were excluded from the nation- wide unit. During negotiations for a new National Master Agree- ment in 1982, the Union proposed deletion of “where al- ready recognized” from the “Employees Covered” section. UPS rejected this proposal. The language of that section in the new 1982 agreement remained the same as in its predecessor. Consequently, previously unrepresented op- erations clerks continued to be unrepresented. On August 1, 1987, the parties executed a new 3-year National Master Agreement. This time the. Union pre- vailed in its effort to include all operations clerks in the bargaining unit. The relevant portion of article 1, section 2, of the new contract contained revised language effec- tively recognizing the bargaining unit status of all UPS clerks. Those clerks who worked in States without “right- to-work” laws were obligated to comply with the new con- tract’s union-security provisions. At the time of the new contract’s execution, UPS em- ployed over 5000 operations clerks nationwide. It is un- FN Seat Se a te nee SPO a 17a disputed that the functions of clerks excluded from the unit until 1987 were at all times the same as the functions of cierks traditionally included in the unit. It is also undisputed that the Employer did not ask for and the Union did not proffer proof of majority support for the Union in the group of previously unrepresented employ- ees. An Official of the Union testified about his belief that the Union had majority support in this group, but he admitted that he had no “papers,” including authorization cards, to support this belief. The overall nationwide bar- gaining unit had more than 100,000 employees in 1987. The Respondents contend that their expansion of the unit to include previously unrepresented operations clerks was a lawful accretion. As found by the judge, traditional community-of-interest factors relevant to the Board’s anal- ysis of accretion issues weigh heavily in favor of finding an accretion. The General Counsel contends, however, that the traditionally unrepresented group of operations clerks could not lawfully be accreted to the unit. In sup- port of this contention, the General Counsel relies on the well-established Board principle precluding accretion where “the group sought to be accreted has been in exist- ence at the time of recognition or certification, yet not covered in an ensuing contract, or, having come into exist- ence, has not been part of the larger unit to which their accretion is sought or granted.” Laconia Shoe Co., 215 NLRB 573, 576 (1974).* In the judge’s opinion, the precedent cited by the Gen- eral Counsel requires both historical exclusion of employ- ees from a unit and acquiescence in that exclusion by the union involved. The judge found that, since the 1979 establishment of the nationwide bargaining unit in this case, the Respondent Union had never acquiesced to the exclusion of operations clerks who were not previously 4 See also Color Tech Corp., 286 NLRB 476, 487 (1987); King Radio Corp., 257 NLRB 521, 525—526 (1981); Sterilon Corp., 147 NLRB 219 (1964). lia represented in local units. In addition, the judge noted the consensus of all litigant parties here that the Board has not had the occasion to apply the Laconia Shoe accretion bar in a case where the group of employees in dispute are not distinguishable by classification, job function, or geo- graphic location from employees who have traditionally been included in the bargaining unit. Under these circum- stances, the judge concluded that the historical exclusion of some operations clerks should not preclude their accre- tion to the existing unit. He therefore found the accretion to be lawful. We disagree. In furtherance of the statutory duty to protect employ- ees’ right to select their bargaining representative, the Board follows a restrictive policy in finding accretion. See, e.g., Towne Ford Sales, 270 NLRB 311 (1984). One aspect of this restrictive policy has been to permit accretion only in certain situations where new groups of employees have come into existence after a union’s recog- nition or certification or during the term of a collective- bargaining agreement. If the new employees have such common interests with members of an existing bargaining unit that the new employees would, if present earlier, have been included in the unit or covered by the current con- tract, then the Board will permit accretion in furtherance of the statutory objective of promoting labor relations sta- bility. Gould, Inc., 263 NLRB 442, 445 (1982). No such accommodation of the collective-bargaining process is required or warranted, however, where the par- ties to a bargaining relationship have historically failed to include an existing group of employees from a bargaining unit. If a group of employees is in existence when a union is recognized or certified, then the statutory right of those employees to select a bargaining representative can be honored and they can be included in the unit at that time without any disruption of labor relations stability. If a group of employees comes into existence during the term of a contract for an existing unit, then the parties must 19a timely address the unit status of those employees prior to executing a successor agreement. Should they fail to do so, the parties have only themselves to blame for any instability resulting from the existence of a group of em- ployees having interests in common with unit employees but excluded from representation in the unit. The limitations on accretion discussed above and ap- plied in Laconia Shoe and related precedent require neither that the union have acquiesced in the historical exclusion of a group of employees from an existing unit, nor that the excluded group have some common job- related characteristic distinct from unit employees. It is the fact of historical exclusion that is determinative. Here, for instance, it is undisputed that prior to 1979 a nationwide group of operations clerks at various UPS facilities were excluded from single-facility units and from 1979 to 1987 this same group of employees continued to be excluded from a nationwide multifacility unit under two successive collective-bargaining agreements. More- over, although this factor does not affect the result here, the judge erred in finding that the Union had not ac- quiesced in the exclusion of the disputed group of opera- tions clerks. At the very least, the Union’s conscious abandonment of a proposal for the 1982 contract that would have specifically modified the unit to include all operations clerks sufficed to prove its acquiescence in con- tinued exclusion of certain operations clerks during that contract’s terms.° Based on the foregoing, we find that the previously unrepresented group of operations clerks did not consti- tute an accretion to the nationwide bargaining unit of UPS employees represented by the Teamsters. Accordingly, 5 Compare King Radio Corp., supra at 526 (in successive contract negotiations, union sought extension of unit coverage to other plants but “always acquiesced” in respondent employer’s position limiting recognized unit to single plant). 20a we find that the Respondents violated Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the Act, respectively, by executing and maintaining a collec- tive-bargaining agreement in 1987 which extended an existing nationwide bargaining unit to include a group of employees who had historically been excluded from that unit and a majority of whom did not support the Union. Conclusions of Law 1. The Respondent Employer, by recognizing and en- tering into a contract with the Respondent Union as the collective-bargaining representative of a bargaining unit including a group of previously unrepresented operations clerks, at a time when a majority of those employees had not designated that Union as their representative, and by tendering to the Respondent Union dues collected from the pay of certain previously unrepresented operations clerks in States where a contractual union-security clause was lawful and operative, has engaged in unfair labor practices within the meaning of Section 8(a)(3), (2), and (1) of the Act. 2. The Respondent Union, by accepting exclusive rec- ognition as the representative of a group of previously unrepresented UPS operations clerks at a time when it was not designated as the exclusive representative by a majority of such employees, and by receiving dues de- ducted from the pay of certain previously unrepresented operations clerks in States where a contractual union- security clause was lawful and operative, has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2la The Remedy Having found that the Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent UPS unlawfully recognized and entered into a collective-bargaining agreement on August 1, 1987, with the Respondent Union as the representative of previ- ously unrepresented operations clerks, we shall order Re- spondent UPS to withdraw and withhold all recognition from the Respondent Union as the collective-bargaining representative of those employees, and we shall order both Respondents to cease applying to those employees the terms of the Respondents’ August 1, 1987 collective- bargaining agreement, or any extension, renewal, modifi- cation, or superseding agreement,’ unless or until the Respondent Union is certified by the Board as such rep- resentative. We shall also order that the Respondent Union and Respondent UPS, jointly and severally, reimburse previ- ously unrepresented operations clerks, present and former, for dues and initiation fees involuntarily exacted from them as a result of the unlawful application of the union- Security clause in the Respondents’ collective-bargaining agreement, with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). ORDER The National Labor Relations Board orders that A. Respondent Employer United Parcel Service, Inc.. Rockledge, Florida, its officers, agents, successors, and assigns, shall * Nothing in this decision should be construed as requiring Re- spondent UPS to rescind benefits conferred on the group of previ- ously unrepresented operations clerks as the result of the unlawful application of contract provisions to them. 224 1. Cease and desist from (a) Encouraging membership in Teamsters National United Parcel Service Negotiating Committee and Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 385, AFL-CIO, its agent, by recognizing it as the exclusive representa- tive of a group of previously unrepresented operations clerks at a time when the labor organization has not been designated by a majority of those employees as their representative. (b) Applying the terms of its collective-bargaining. agreement of August 1, 1987, or any other agreement with the Union, to previously unrepresented operations clerks unless and until it has been duly certified by the National Labor Relations Board as the exclusive repre- sentative of those employees. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Withhold and withdraw all recognition from the Respondent Union as the exclusive representative of previously unrepresented operations clerks unless and ‘ until it has been duly certified by the National Labor Relations Board as the exclusive representative of those employees. | (b) Jointly and severally with the Respondent Union, reimburse all previously unrepresented operations clerks for any initiation fees, dues, or other moneys involun- tarily exacted from them pursuant to application of a union-security clause in the Respondents’ collective-bar- gaining agreement executed on August 1, 1987, or any other agreement between the Respondents, in the manner set forth in the remedy section of this decision. VOVO—VO————————— ee 23a (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (d) Post at all facilities employing unrepresented oper- ations clerks copies of the attached notice marked “Ap- pendix A.”* Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent Employer’s authorized representative, shall be posted by the Respondent Employer immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Employer to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respond- ent Employer has taken to comply. B. Respondent Union Teamsters National United Par- cel Service Negotiating Committee and _ International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Heipers of America, Local 385, AFL-CIO, its offi- cers, agents, and representatives, shall 1. Cease and desist from (a) Accepting exclusive recognition as the represent- ative of all previously unrepresented operations clerks of 7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.” 24a the Respondent Employer, at a time when it was not designated as the exclusive representative by a majority of those employees. (b) Applying the terms of its collective-bargaining agreement of August 1, 1987, or any other agreement with the Respondent Employer, to previously unrepre- sented operations clerks, unless and until it has been duly certified by the National Labor Relations Board as the exclusive representatives of those employees. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed: them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Jointly and severally with the Respondent Em- ployer reimburse all newly added and previously unrep- resented operations clerks for any initiation fees, dues, or other moneys involuntarily exacted from them pur- suant to application of a union-security clause in the Re- spondents’ collective-bargaining agreement executed on August 1, 1987, or any other agreement between the Respondents, in the manner set forth in the remedy sec- tion of this remedy. (b) Post at its business offices serving members at any United Parcel Service facility where previously un- represented operations clerks are located copies of the attached notice marked “Appendix B.”* Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent Union’s authorized representative, shall be posted by the Respond- 8If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD” shall read “POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.” ln ER ates 1 Ete a Eo nine TN es A ee Aaya eA Ne A ct AARC ARN ar ins JD anc diet dist i is ali 25a ent Union immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to ensure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respond- ent Union has taken to comply. Dated, Washington, D.C. June 11, 1991 DENNIS M. DEVANEY, Member CLIFFFORD R. OvIATT, JR., Member JOHN N. RAUDARBAUGH, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 26a APPENDIX A NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Goverment The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT encourage membership in Teamsters. National United Parcel Service Negotiating Committee and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 385, AFL- CIO, its agent, by recognizing it as the exclusive repre- sentative of a group of previously unrepresented opera- tions clerks at a time when it has not been designated by a majority of those employees as their representative. WE WILL NOT apply the terms of our collective- bargaining agreement of August 1, 1987, or any other agreement with the Union, to previously unrepresented operations clerks unless and until it has been duly certi- fied by the National Labor Relations Board as the exclu- sive representative of those employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL withhold and withdraw all recognition from the Union as the exclusive representative of previously unrepresented operations clerks unless and until it has been duly certified by the National Labor Relations Board as the exclusive representative of those employees. WE WILL jointly and severally with the Union make whole all previously unrepresented operations clerks for any initiation fees, dues, or other moneys involuntarily exacted from them and paid to the Union pursuant to ap- 27a plication of a union-security clause in the collective- bargaining agreement executed on August 1, 1987, or any other agreement with the Union. UNITED PARCEL SERVICE, INC. (Employer) Dated By (Representative ) ( Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions con- cerning this notice or compliance with its provisions may be directed to the Board’s Office, 700 Twiggs Street, Suite 511, Tampa, Florida 33602-4081, Telephone 813- 228-2662. 28a APPENDIX B NOTICE TO EMPLOYEES AND MEMBERS Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT accept exclusive recognition as the rep- resentative of all previously unrepresented United Parcel Service, Inc. operations clerks at a time when we are not designated as the exclusive representative by a majority of those employees. WE WILL NOT apply the terms of our collective- bargaining agreement of August 1, 1987, or any other agreement with United Parcel Service, Inc. to previously unrepresented operations clerks, unless and until we have been duly certified by the National Labor Relations Board as the exclusive representative of those employees. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL jointly and severally with United Parcel Serv- ice, Inc. make whole all previously unrepresented opera- tions clerks for any initiation fees, dues, or other moneys involuntarily exacted from them and paid to us pursuant to application of a union-security clause in the collective- bargaining agreement executed on August 1, 1987, or any other agreement with United Parcel Service, Inc. —s ani " 29a TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGOTIATING COMMITTEE AND INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LocaL 385, AFL-CIO, Its AGENT (Labor Organization) Dated By (Representative ) (Title) — This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board’s Office, 700 Twiggs Street, Suite 511, Tampa, Florida 33602-4081, Telephone 813-228- 2662. 30a JD(ATL)-39-90 Rockledge, FL UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES ATLANTA BRANCH OFFICE Case 12-CA-12749 UNITED PARCEL SERVICE and SARA F. GRIFFIN, An Individual Case 12-CB-3028 TEAMSTERS NATIONAL UNITED PARCEL SERVICE NEGO- TIATING COMMITTEE AND INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL 385, AFL-CIO, its agent and SARA F. GRIFFIN, An Individual Peter J. Salm and Michael R. Maiman, Esgs., for the General Counsel. Martin Wald and Edward J. McBride, Jr., Esqs., Phila- delphia, PA, for the Company. A. E. Lawson, Esq., Washington, DC, for the Union. 1- 3la DECISION Statement of the Case WILLIAM N. CATES, Administrative Law Judge. These cases were tried before me at Orlando, Florida, on January 8 and 9, 1990, pursuant to an Order Consolidat- ing Cases, Consolidated Complaint, and Notice of Hear- ing (complaint) issued by the Acting Regional Director for Region 12 of the National Labor Relations Board (Board) on April 25, 1989, which in turn was based upon charges filed by Sara F. Griffin, an individual (Griffin). An amendment to the complaint was issued by the Acting Regional Director on September 26, 1989. The charge in Case 12-CA-12749 was filed on November 3, 1987. The charge in Case 12-CB-3028 was also filed on November 3, 1987, and amended on December 22, 1988. The complaint alleges that United Parcel Service (Company) on or about August 1, 1987, violated Section 8(a)(1), (2), and (3) of the National Labor Relations Act (Act) by recognizing Teamsters National United Parcel Service Negotiating Committee and International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 385, AFL-CIO, its agent (Union) as the collective bargaining representative of certain previously unrepresented operations clerks at the time when a majority of those employees had not desig- nated the Union as their collective bargaining representa- tive and by tendering to the Union dues collected from the pay of certain previously unrepresented operations clerks pursuant to a union security clause in non- right-to-work states. It is also alleged the Union violated Section 8(b)(1)(A) and (2) of the Act by receiving dues deducted from the pay of certain previously unrep- resented operations clerks in non-right-to-work states pur- suant to a union security clause at a time when the Union did not represent a majority of certain previously unrepresented operations clerks and by causing the Com- pany to discriminate against certain of its employees in 32a violation of Section 8(a)(3) of the Act.’ The Company and Union filed answers admitting certain complaint alle- gations but denying the commission of any unfair labor practices. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross- examine witnesses, to argue orally, and to file briefs. Briefs, which I have carefully considered, were filed on behalf of the General Counsel, the Company, and the Union.” Upon the entire record of the case and from my ob- servation of the witnesses and their demeanor, I make the following: Findings of Fact I. Jurisdiction The Company, an Ohio and New York corporation, has offices and places of business in various states includ- ing its place of business located at Rockledge, Florida, where it is engaged in the interstate transportation and distribution of parcels. During the 12-month period pre- ceding issuance of the complaint herein, a representative period, the Company, in the course and conduct of its 1The complaint also contained alleged independent violations of Section 8(b) (1) (A) of the Act. However, those allegations were served from the complaint at trial and resolved pursuant to an informal settlement agreement that I approved prior to close of the hearing herein. 2On March 19, 1990, Counsel for the General Counsel filed a Motion to Strike Attachments to Respondent-Employer’s Post Hear- ing and All References Thereto. In said Motion, Counsel for the General Counsel moved to strike certain daily labor reports that were attached to the Company’s posttrial brief. Counsel for the General Counsel’s contention that such reports were never made a part of the record in this case has merit. Accordingly, I shall strike the documents appended to the Company’s posttrial brief. I have given no consideration to the attachments or references made in the Company’s posttrial brief to the attachments. aa 33a business operations, performed interstate freight transpor- tation services valued in excess of $50,000. During that same period, it received gross revenues in excess of $500,000 as a link in the interstate movement of freight. The complaint alleges, the parties admit, the evidence establishes, and I find, the Company is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. Labor Organization The complaint alleges, it is admitted, and I find, the Union is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. The Alleged Unfair Labor Practices A. The Facts? Union Local 385 along with approximately 220 other union locals nationwide has represented certain Company employees including operations clerks* for many years within their respective jurisdictions. The various geo- graphical units were, by practice and consent, merged into a single nationwide bargaining unit. The nationwide unit consists of approximately 108,000 employees. Since 1979, national negotiations have been conducted between the Company and the Union’s national negotiating com- mittee that represents all union locals. Between 1979 * The facts set forth herein have been taken from a joint stipula- tion of facts entered into by the parties, admissions made by the parties, and from credited uncontradicted testimony of certain wit- nesses, whose identity will be set forth at those places in the Decision where their testimony is utilized and/or relied upon. * The generic term “operations clerks” refers to the classifications of: re-wrap clerks, bad address clerks, postcard clerks, operating center clerks, air operations clerks, package return clerks, damage clerks, and hub and air-hub return clerks. Their duties are dis- cussed in greater detail elsewhere in this Decision. 34a and 1987, three national collective-bargaining agreements were negotiated with effective dates of A979, 1982, and August 1, 1987.° Article 1, section 2, of the 1979 National Agreement entitled “Employees Covered” reads as follows: Employees covered by this Agreement shall be con- strued to mean, where already recognized, feeder drivers, package drivers, sorters, loaders, unloaders, porters, office clericals, clerks,° mechanics, mainte- nance personnel (building maintenance), car wash- ers, and other employees of the Employer for whom a signatory Local Union is presently the bargaining representative. The provisions of this agreement shall apply to all accretions to the bargaining unit in the classifica- tions listed in the applicable individual Supplements. Company Air and Midwest Regional Manager Morton testified there probably were more than 1,000 but less than 5,000 operations clerks utilized by the Company at the time the parties entered into the 1979 National Agreement. The first paragraph of article 1, section 2, of the 1982 National Agreement reads as follows: Employees covered by this agreement shall be con- strued to mean, where already recognized, feeder drivers, package drivers, sorters, loaders, unloaders, porters, office clericals, clerks, mechanics, mainte- nance personnel (building maintenance), car wash- ers, United Parcel Service employees in the employ- 5 The most recent agreement expires by its terms on July 31, 1990. ®Company Air and Midwest Regional Manager Roy Morton (Morton) testified without contradiction that the term “clerks” as used in this agreement referred to “operations clerks.” 35a er’s air operations, and other employees of the em- ployer for whom a signatory Local Union is or may become the bargaining representative. The second paragraph of article 1, section 2, of the 1982 National Agreement was identical to the second paragraph of article 1, section 2, of the 1979 agreement. As is noted above, at the time the 1979 contract be- came effective, some operations clerks throughout the country were represented by the Union in recognized units, while other operations clerks were not. Thus, after 1979, some operations clerks were treated as being cov- ered under article 1, section 2, of the 1979 and 1982 agreements while others were treated as being unrepre- sented.’ Air and Midwest Regional Manager Morton testified the Union had always, over the years, taken the position it represented all employees having anything to do with the movement of packages from the time the packages were tendered to the Company until such packages were deliv- ered to the customers. Morton testified the Union inter- preted the recognition clause of the 1979 contract as cov- ering all operations clerks employed by the Company nationwide. Morton stated that although the Company did not share that interpretation of the collective-bargain- ing agreement by the Union, the Union nonetheless con- tinued to complain about the Company’s failure to do so. According to Morton, the complaints were not limited to the national level but union locals also objected that the Company did not treat all operations clerks as being members of the bargaining unit.* Morton testified that 7™The Company’s growth in volume as well as the additional] need for operations clerks increased approximately 6 to 7 percent on an annual basis between 1979 and 1987. 8 Two grievances were filed on May 5, 1980. One each by Local 435 (Denver, Colorado) and Local 146 (location not available in 36a until the 1987 agreement, the status of all operations clerks “was a constant bone of contention between the Company and the Union.” Morton testified that during the 1982 negotiations, one of the proposals made by the Union was to modify the “Employees Covered” section of the agreement. The Union’s proposal would have changed the recognition clause from: Employees covered by this agreement shall be con- strued to mean, where already recognized, feeder drivers, package drivers, sorters, loaders, unloaders, porters, office clericals, clerks— To: Employees covered by this agreement shall include » « « CHEERS. Morton said the Company, however, did not agree to this proposed change in 1982. Morton testified that during the 1987 negotiations, the Union finally convinced the Company its (Union’s) inter- pretation of the recognition clauses in the 1979 and 1982 agreements was correct and that all operations clerks should properly be considered as being in the bargaining unit.” 4s: a result thereof, the second paragraph of article 1, sectica 2 (which has been quoted above), was changed to read as follows: In addition, effective August 1, 1987, the Employer recognizes as bargaining unit members clerks who the record) in which the locals complained the Company refused to recognize the Union as the collective bargaining representative for the operations clerks. G.C. Exhibit 3. ® No specific evidence of majority status was requested by the Company or provided by the Union at the time the 1987 agreement was executed which contained the language pertaining to all opera- tions clerks being included in the bargaining unit. 37a are assigned to package center operations, hub cen- ter operations, and/or air-hub operations who assign- ment involves the handling or progressing of mer- chandise after it has been tendered to United Parcel Service to effectuate delivery. These jobs cover: package return clerks, bad address clerks, postcard room clerks, damage clerks, re-wrap clerks, and hub and air-hub return clerks. Classifications covered in Article 39—Trailer repair shop are also covered. There were over 5,000 operations clerks employed by the Company nationwide in 1987."° Some operations clerks newly included in the unit under the 1987 agree- ment who were employed in non-right-to-work states, ex- ecuted bargaining authorization cards and checkoff au- thorizations and, pursuant thereto, have had dues and initiation fees deducted from their pay by the Company. Said dues have been tendered to and received by the Union. The 1987 National Agreement contains a union security clause that is applicable to the extent allowed by state law. At this point, a detailed look at the functions of the operations clerks is helpful. The generic term “operations clerks” refers to employees who work along side sorters, loaders, and drivers in processing packages to be trans- ported by the Company. Their job functions include, inter alia, correcting addresses on packages, re-wrapping packages, redirecting packages sent to a location by mis- take and returning damaged packages with claim forms. Company labor relations staff member Edward R. Len- hart (Lenhart) testified: . .. . Probably the best way to describe the operation at [The Company] is go through the delivery cycle 10 Prior to August 1987, the terms and conditions of employment of the unrepresented operations clerks were governed by a clerical employee’s handbook, which handbook had no effect on unit employees. 38a and then have the fill in or clerical people come into play... Package driver[s] pickup packages at accounts on a daily basis at their regular customers; they transport those . . . packages into the package center, which may be an independent center housed in its own con- fines or it may be a center as part of a hub. At that time, the packages were unloaded. The packages are unloaded by a hub person. That hub person then places them on the belt. The packages then go through the sorting belt system to be sorted to the destination trailers. .. . . During any of this portion of the package delivery cycle, clerical people can come into play. If a pack- age is unloaded that needs to be taped, a clerical per- son, a rewrap person may, with a tape gun, put tape on that package so as to keep the package on its way. If a package is off loaded and the package is dam- aged, a damage clerk may be involved in rewrapping that package, discovering what’s demaged, fill out the appropriate damage reports, causing that package either to go on its way back to the shipper or to a designated place for other treatment, depending on the type of merchandise it is. The packages are then loaded into destination trail- ers. They are pulled by feeder drivers to the destina- tion center. They are unloaded at the destination center, again, by hub people, placed on belts, loaded by a group of people called the pre-loaders. Pre- loaders can operate off of running belts or off of box lines or cage lines, or whatever the case may be. Those pre-loaders place the packages into package cars for the delivery driver to deliver packages on that particular delivery day. Then the pre-load operation, as well as the unload operation, as well as the sort operation, packages can 39a become damage[d], packages may need rewrapped. Packages may on the pre-load be recognized as hav- ing an incorrect address, either missing a digit, hav- ing an incorrect zip code, and the clerical people would be involved at that time in correcting the ad- dresses for the pre-loader. Once the packages leave the center, the delivery driver is responsible for making the deliveries. If for whatever reason he cannot make those deliveries, he would then, on his return to the center, indicate to the clerical person who is on duty at that time why he could not affect delivery on certain packages that he returned. Again, they could have bad addresses that the driver discovered on area; they could be in need of rewraps and the driver chose not to deliver the packages be- cause of the appearance of the package; they could have had damage that he’d noticed and the pre- loaders hadn’t noticed; they could have been refused by the consignee and then need to have the appropri- ate paperwork filled out for the return; they could be packages that have postcard delivery addresses and the driver’s unfamiliar with the consignee and could not affect the delivery, gives it to the return clerk upon his return to the center and they fill out the appropriate paperwork to notify the customer via the US mail, the postcard system; it could be COD’s that were refused; it could be—you know, it could be a variety of reasons. * * ok The air return clerk . . . is one that works in an air- hub. . . . . Performs the same type of clerical work, but they just have to do with air packages because of his or her location in the airhub. Lenhart testified without contradiction that the opera- tions clerks work “shoulder to shoulder” “at all times” with other unit employees. He further testified: 40a They converse with them on work related matters, they receive packages from those classifications, they give packages back to those classifications, they ask those classifications for information. He testified, for example: They may ask a driver for information concerning a customer for correction of a bad address. There’s so much interplay that, I mean, they’re all part of the same team.... Lenhart testified the working conditions for the operations clerks and, for example, the drivers, sorters, loaders, and’ unloaders are identical. Lenhart said they take their breaks together, adhere to the same grooming standards, share the same locker and personal storage space and utilize the same lunch room and parking facilities. The operations clerks and other unit employees are under the same supervision. B. Positions of the Parties Counsel for the General Counsel urges that the appli- cation of the 1987 national agreement to those operations clerks not covered under the 1979 and 1982 agreements did not constitute a lawful accretion. Counsel for the General Counsel urges the Board follows a restrictive pol- icy in finding an accretion because such a finding fore- closes employees’ basic right to select their own bargain- ing representative. In this regard, Counsel for the General Counsel points out that a fundamental consideration in determining accretion issues is to insure employees the fullest freedom in exercising their rights guaranteed by the Act. Counsel for the General Counsel does not contend the factors generally militating in favor of a finding of an accretion are not present in the instant case but rather argues there is a factor present in the case sub judice that precludes an accretion finding. Counsel for the Gen- eral Counsel asserts that where the group sought to be ac- creted, as he contends is the case herein, was in existence Sem) Kye a eke ered neal San mA 4la at the time of the recognition or certification and not cov- ered in ensuing contracts the Board will not permit ac- cretion without an election or a showing of majority status. Counsel for General Counsel argues the fact that some employees in the classifications claimed to be ac- creted into the unit have always been in the unit should not cause this case to be treated differently than a tradi- tional accretion case and that the preclusion principle should apply. Further, Counsel for the General Counsel asserts there is no evidence on this record that the Union represented a majority of the operations clerks at the time all were added to the unit in 1987. Thus, he asserts no lawful basis for the Company’s and Union’s actions has been demonstrated and a finding that both violated the Act as alleged in the complaint is warranted. Counsel for the General Counsel, in responding to cer- tain defenses raised or anticipated, contends the plain language in the recognition clauses of the 1979 and 1982 national agreements defeats any inference the agreements were intended to cover all operations clerks. In support thereof, Counsel for the General Counsel points to that portion of the recognition clauses in both agreements that reads “employees covered by this agreement shall be construed to mean, where already recognized, . . . [oper- ations] clerks . . .”. While Counsel for the General Coun- sel concedes that some of the operations clerks were covered under the approximately 220 local agreements prior to 1979, he asserts all were not, and that all were not intended to be, covered under those agreements. Counsel for the General Counsel argues that since the above recognitional language remained in the parties’ two national agreements, lasting approximately 8 years, they condoned the fact some operations clerks were cov- ered by the two agreements while others were not. Sim- ply stated, Counsel for the General Counsel urges it can- not be concluded that the 1979 and/or 1982 agreements were intended to cover all operations clerks employed by the Company. ‘ 42a The Union contends it has always represented a majority of all operations clerks in that a majority of those clerks were indeed covered under the 1979 and 1982 National Agreements. Furthermore, the Union as- serts it has continuously sought to have the minority of operations clerks not included in the unit be added thereto. The Union argues the complaint, as to it should be dismissed in that no showing has been made that non-bargaining unit operations clerks were other than a minority of the overall operations clerks. Further, the Union argues that since the overall national bargaining unit consists of 108,000 unit employees, the small per- centage of non-bargaining unit employees added under the 1987 collective-bargaining agreement constitutes nothing more than a de minimis adjustment of the composition of the unit in order “to establish national uniformity, and to clarify [the Company’s] pre-existing de facto recogni- tion of the majority of these operations clerks, already bargaining unit members.” Such, the Union contends, is consistent with the policies and purposes of the Act and as such does not constitute an unfair labor practice. The Union argues that if the instant case is to be viewed as an accretion case, it is undisputed that a ma- jority of the employees in the classifications to be ac- creted were already bargaining unit employees. As such, the Union argues the Board’s general doctrine of deny- ing accretion in a situation where an employee classifica- tion has previously been excluded from a collective- bargaining agreement should not apply to, or control, the disposition of the instant case. The Union urges the Board’s iine of cases precluding accretion where the em- ployee classification has been excluded are clearly dis- tinguishable in that in none of those cases were the em- ployee classifications to be accreted already bargaining unit members as was stipulated to be the case herein. The Union urges that since the employees brought into the unit by the 1987 agreement constituted a relatively small percentage of the overall unit, and the employees 43a shared a sufficient community of interest with the unit employees they should be considered an accretion to that unit especially in light of the fact the accreted employees do not have a community of interest sufficiently separate and distinct so as to preclude their accretion into the bar- gaining unit. In this regard, the Union notes the opera- tions clerks involved have historically been included in the unit in most parts of the country because their job functions are integrated with the job functions of other members of the bargaining unit. The Union urges that as a matter of law, the inclusion of the unrepresented operations clerks into the existing bargaining unit in 1987 constituted a proper accretion to the existing bar- gaining unit and as such the complaint as to it should be dismissed. The Company contends the agreement to add new lan- guage to the “Employees Covered” section of the 1987 national agreement that treated all operations clerks as bargaining unit members, merely clarified the fact all operations clerks had been bargaining unit members under the 1979 and 1982 agreements. The Company asserts the Union always interpreted the recognition clauses of the prior agreements to mean all operations clerks were bar- gaining unit employees. The Company claims the Union always tried, although unsuccessfully until 1987, to per- suade it of the correctness of its interpretation of the prior agreements. The Company asserts the Union based its interpretation on the fact that when the first national agreement was executed in 1979, the Union, through its locals in various parts of the country already represented a majority of all operations clerks employed by the Com- pany. The Company contends it finally agreed to the Union’s interpretation because the added language cov- ered something that factually already existed. Thus, the Company urges it did not violate the Act by agreeing to language in the 1987 agreement that reflected what in fact already properly existed. 44a The Company, like the Union, contends that assuming accretion principles apply to the instant case, the opera- tions clerks were lawfully accreted into the bargaining unit in 1987 because prior Board cases regarding accre- tion of previously excluded classifications are not applica- ble and because a community of interest with unit em- ployees is clearly present such as to warrant an accretion finding. The Company, like the Union, points out that in those cases where the Board has treated the accretion issue in the context of a classification previously excluded none of the classifications to be accreted had ever been part of the bargaining unit. The Company asserts the instant case is one of first impression in that a majority of the employees in the classifications to be accreted are already members of the bargaining unit. The Company urges that the instant case is an accretion case, if at all, only in the narrowest sense—what is to be accreted is a group of employees who work in job classifications which are already a part of the unit. The Company contends a finding of lawful accretion in the instant case will advance the Board’s policy of promoting the peaceful resolution of industrial disputes through the collective bargaining process. The Company urges the dismissal of all com- plaint allegations against it. C. Analysis, Discussion, and Conclusions I reject the Company’s and Union’s position that by adding language to the 1987 national agreement to treat all operations clerks as bargaining unit members, the par- ties were merely clarifying the fact all had been bargain- ing unit members under the two previous national agree- ments. I likewise reject the contention the language change was nothing more than a de minimis adjustment of the unit composition. The evidence establishes that prior to the first (1979) national agreement, sorne Union locals considered operations clerks to be covered under the local agreements while others did not. The language 45a “where already recognized” regarding employees covered under the 1979 agreement, which language was retained in the 1982 agreement, indicates the parties intended to maintain the status quo—that is in those locations where operations clerks were previously considered to be in the unit such would continue to be so while those considered not to be included would remain in that status. The Company and Union having failed to demonstrate that the additional recognitional language in the 1987 agree- ment was simply a clarification of what in fact already existed, I shall turn to the central issue of whether the employees added to the unit in 1987 constituted a lawful accretion. The Court in Lammert Industries v. NLRB, 578 F.2d 1223, 1225 at fn. 3 (7th Cir. 1978) noted: An accretion is simply the addition of a relatively small group of employees to an existing unit where these additional employees share a sufficient com- munity of interest with the unit employees and have no separate identity. The additional employees are then properly governed by the unit’s choice of bar- gaining representative. NLRB v. Food Employers Council, Inc., 399 F.2d 501, 502-03 (9th Cir. 1968). In King Radio Corporation, 257 NLRB 521 at 525 (1981), the Judge, with approval, noted the Board weighs a variety of factors in determining whether a particular group of employees constitute an accretion to an existing unit. Such factors are: (1) integration of operations; (2) centralization of administration and management control; (3) geographic proximity; (4) similarity of working conditions and skills; (5) labor relations con- trol; (6) common or separate supervision, and (7) bar- gaining history. Where there are factors militating to- ward and against accretion a balancing of the factors is necessary. That is, the Board must balance the right of employees to express their desires concerning representa- 46a tion against the policy favoring continuity in collective bargaining relationships. Although the Board generally follows a somewhat restrictive rather than expansive pol- icy in finding an accretion in order to ensure employees the fullest freedom in expressing their rights under the Act, it is not hesitant to find an accretion where the facts warrant such. The bottom line is that the Board will very carefully weigh every factual situation in balancing the implicit statutory policy of stability in bargaining relationships against the expressed statutory right of em- ployees, as set forth in Section 7 of the Act, to choose to refrain from engaging in collective bargaining. In applying the Board’s traditional community of inter- est analysis to the instant case, I am persuaded the facts overwhelmingly militate in favor of a finding of accretion. The facts establish the Company’s packaged delivery op- erations are highly integrated with the operations clerks fulfilling vital and necessary roles at most all stages of the Company’s operations. When packages are brought from customers to hub or air hub centers and unloaded, operations clerks work alongside the unloaders and sort- ers re-wrapping and/or re-taping packages. Packages that are damaged beyond delivery and are to be returned to the customers are processed by operations clerks in the return clerks classification. The return clerks insure the packages, as well as the related paper work, are prepared and processed so loaders can reload the packages and drivers can return the packages to the customers. Like- wise, operations clerks assist loaders, unloaders, and sort- ers in ascertaining [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0500%3A1. Public record. Not legal advice.