United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 23, 2008 Decided March 14, 2008 

No. 06-1358 

UNITED FOOD AND COMMERCIAL WORKERS, AFL-CIO,

LOCAL 540, 

PETITIONER

v. 

NATIONAL LABOR RELATIONS BOARD, 

RESPONDENT

Consolidated with 

07-1060 and 07-1087 

On Petitions for Review and Cross-Application for 

Enforcement of an Order of the 

National Labor Relations Board 

George Wiszynski argued the cause and filed the briefs 

for petitioner United Food and Commercial Workers, 

AFL-CIO. 

Steven D. Wheeless argued the cause for petitioner 

Wal-Mart Stores, Inc. With him on the briefs was Bennett 

Evan Cooper. 
2 

Philip A. Hostak, Attorney, National Labor Relations 

Board, argued the cause for respondent. With him on the 

brief were Ronald E. Meisburg, General Counsel, John H. 

Ferguson, Associate General Counsel, Linda Dreeben, 

Assistant General Counsel, and Robert J. Englehart, 

Supervisory Attorney. David S. Habenstreit, Attorney, 

entered an appearance. 

Before: TATEL, BROWN and KAVANAUGH, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge

KAVANAUGH. 

KAVANAUGH, Circuit Judge: This case illustrates some 

of the collective bargaining complications that ensue when 

technological developments diminish the need for skilled 

manual labor. Workers in the meat department at the WalMart in Jacksonville, Texas, elected Local 540 as their 

bargaining representative. At the time, those workers used 

specialized meat-cutting skills. Wal-Mart later announced its 

intention to convert meat departments around the country 

from selling meat that was cut on site to selling pre-packaged 

meat. In the wake of the announcement, the Jacksonville 

Wal-Mart changed its meat department so that it sells only 

pre-packaged meat. Because the Jacksonville meatdepartment workers no longer use specialized cutting skills, 

the NLRB found that the meat department had become an 

inappropriate bargaining unit. As a result, the Board 

concluded that Wal-Mart has no general duty to bargain with 

the Union representing the meat-department employees. But 

according to the Board, Wal-Mart nonetheless must bargain 

with the Union over the effects of the conversion on the 

Jacksonville meat-department employees. 
3 

Both the Union and Wal-Mart have petitioned for review 

in this Court. The Union argues that the meat-department 

bargaining unit remains appropriate after conversion of the 

department to selling pre-packaged meat. Wal-Mart contends 

that it does not have to bargain with the Union over the effects 

of the conversion. We conclude that the Board’s decisions on 

both issues were reasonable in light of Board precedents. We 

therefore deny the petitions for review and grant the Board’s 

cross-petition for enforcement. 

I 

 In late 1999, the United Food and Commercial Workers 

Union, Local 540, sought to represent meat-department 

employees at Wal-Mart’s Jacksonville, Texas, store. In 

January 2000, the Board concluded that the 10 meatdepartment employees at the Jacksonville store constituted an 

appropriate bargaining unit. In February 2000, the employees 

elected the Union as their bargaining representative.1

 

At the time of the union election in February 2000, the 

meat department at the Jacksonville store ran a “boxed-meat” 

operation. The store received large cuts of meat, and meatdepartment employees used specialized cutting skills to 

prepare the meat for sale to Wal-Mart customers. 

In late February 2000, shortly after the union election, 

Wal-Mart announced its intention to convert meat-department 

operations at many stores throughout the United States. The 

goal of the announced conversion was to implement a pre-

 1

 The Board expressly affirmed and adopted many of the 

rulings, findings, and conclusions of the administrative law judge. 

Where appropriate, we therefore cite the administrative law judge’s 

decision. 
4 

packaged-meat operation. Meat-department employees would 

no longer cut or even label the meat; instead, stores would 

receive pre-packaged meat ready for display and sale. 

After the Wal-Mart announcement, the Jacksonville store 

began to convert its meat department to pre-packaged meat. 

On July 15, 2000, the Jacksonville Wal-Mart completed the 

change. 

At the same time that the Jacksonville meat department 

was converting its operations, Wal-Mart was pursuing 

objections to the union election in proceedings before the 

Board. In addition, from March through August of 2000, 

Wal-Mart and the Union had a series of unsuccessful 

exchanges over collective bargaining. Wal-Mart repeatedly 

refused to engage in collective bargaining with the Union 

until its objections to the union election were resolved. In 

March, the Union sent a letter to Wal-Mart demanding 

collective bargaining. Wal-Mart denied the request, citing its 

pending objections to the union election. In June and July, 

the Union sent further requests for bargaining, but Wal-Mart 

continued to reject them. 

On August 9, the Board rejected Wal-Mart’s objections 

to the union election and certified the Union as the meatdepartment employees’ bargaining representative. By this 

time, Wal-Mart had already converted the meat department. 

So on August 16, when the Union again requested bargaining 

with Wal-Mart, Wal-Mart again refused, this time on the 

ground that the meat-department bargaining unit was no 

longer appropriate. 

The Board’s General Counsel then issued a complaint 

alleging that Wal-Mart committed an unfair labor practice by 

refusing to bargain with the Union. After initial proceedings 
5 

before an administrative law judge, the Board concluded that 

the meat-department unit had become inappropriate by July 

15, 2000 – the date the Jacksonville store completed the 

conversion – and that Wal-Mart therefore has no duty to 

bargain with the Union over an employment contract. But the 

Board concluded that Wal-Mart must bargain over the effects

of the conversion and had committed an unfair labor practice 

by refusing the Union’s request to do so. See 348 N.L.R.B. 

No. 16, at 1-2 (2006). The Board therefore issued an order 

requiring Wal-Mart to bargain with the Union regarding the 

effects of the conversion and to supply the Union with 

relevant information. See id. at 2. 

 Both the Union and Wal-Mart have petitioned for review 

in this Court. The Union contends that the Jacksonville meatdepartment unit is still appropriate, and Wal-Mart argues that 

it has no duty to bargain with the Union over the effects of the 

change in the Jacksonville meat-department operations. We 

examine the Board’s decisions to ensure that they are rational, 

consistent with the National Labor Relations Act, and 

supported by substantial evidence. See Allentown Mack Sales 

& Serv., Inc. v. NLRB, 522 U.S. 359, 361 (1998). 

II 

 The Union argues that the bargaining unit of meatdepartment employees remains appropriate despite WalMart’s conversion to a pre-packaged-meat operation. 

 In determining whether a unit is appropriate, the Board 

focuses on whether the employees share a “community of 

interest.” RC Aluminum Indus., Inc. v. NLRB, 326 F.3d 235, 

239-40 (D.C. Cir. 2003) (internal quotation marks omitted). 

The Board considers “a variety of factors, including the 

employees’ wages, hours and other working conditions; 
6 

commonality of supervision; degree of skill and common 

functions; frequency of contact and interchange with other 

employees; and functional integration.” Sundor Brands, Inc. 

v. NLRB, 168 F.3d 515, 518 (D.C. Cir. 1999) (internal 

quotation marks omitted). Because the assessment requires a 

fact-intensive inquiry and a balancing of various factors, the 

Board has broad discretion in making the determination; we 

have said its decision is entitled to “wide deference.” Id.

(internal quotation marks omitted); see also RC Aluminum 

Indus., 326 F.3d at 240. 

The Board historically treated meat-department units as 

presumptively appropriate. See, e.g., Big Y Foods, Inc., 238 

N.L.R.B. 855, 856 (1978); R-N Market, Inc., 190 N.L.R.B. 

292, 292 & n.2 (1971). Meat-department employees 

traditionally worked on large animal carcasses, and their jobs 

required specialized meat-cutting skills and expertise. Over 

time, meat-department employees began to work with boxed 

meat, which consists of portions of carcasses that the store 

receives and that meat-department employees then cut and 

package for sale. See Scolari’s Warehouse Mkt. Stores, Inc., 

319 N.L.R.B. 153, 155 (1995). In recent years, however, prepackaged meat has become much more common; stores 

receive the meat already prepared for sale, and employees no 

longer need or use meat-cutting skills. 

As the industry has evolved, the Board has abandoned the 

presumption of appropriateness for meat-department units. 

Instead, the Board applies its ordinary community-of-interest 

test. Applying that test, the Board has made clear that use of 

specialized meat-cutting skills by meat-department employees 

is central to the appropriateness of a meat-department unit. 

See Wal-Mart Stores, Inc., 328 N.L.R.B. 904 (1999); 

Scolari’s Warehouse, 319 N.L.R.B. 153. Indeed, it is 

“difficult to find a precedent in which the Board found a meat 
7 

department unit appropriate when no meat cutting took place 

there.” Wal-Mart Stores, Inc., 348 N.L.R.B. No. 16, at 23 

(2006). 

The evolution of Wal-Mart’s Jacksonville meat 

department has mirrored the general trend in the industry. 

Before 2000, the Jacksonville meat-department employees 

used specialized and distinctive cutting skills and spent about 

85 percent of their time handling and cutting boxed meat. In 

January 2000, the Board’s Regional Director therefore found 

that the meat-department employees shared a community of 

interest separate from other store employees and constituted 

an appropriate bargaining unit. 

The Jacksonville Wal-Mart’s July 2000 conversion to a 

pre-packaged-meat operation eliminated the need for meatdepartment employees to exercise any meat-cutting skills – 

or, indeed, to cut any meat at all. Instead of using “highly 

specialized meatcutting skills on a routine and constant 

basis,” the employees now receive small, pre-wrapped meat 

packages and place them on the proper shelves. Wal-Mart 

Stores, Inc., Decision and Direction of Election (Case 16-RC10168) at 11 (2000), Joint Appendix (“J.A.”) 207. “In 

essence, the Jacksonville store’s meat department employees 

now do stocking.” Wal-Mart Stores, Inc., 348 N.L.R.B. No. 

16, at 23. 

Because the Jacksonville meat-department employees no 

longer engage in specialized meat-cutting, the Board 

concluded that the meat-department bargaining unit no longer 

is appropriate. See id. at 22-23. In light of the facts and the 

Board’s precedents on meat-department employees, we think 

the Board’s decision was entirely reasonable and find no basis 

to disturb it. 
8 

The Union emphatically argues that the meat-department 

unit nonetheless remains appropriate because (1) under WalMart’s corporate structure, the meat department is still 

separate from the general-merchandise division; (2) meatdepartment employees continue to spend most of their work 

time in the meat department selling meat, which employees 

from other departments do not sell; (3) no employee lost pay 

as a result of the conversion; and (4) no employee was 

transferred out of the meat department. But the Board found 

that, in the absence of specialized meat-cutting skills, those 

factors were insufficient to establish a separate community of 

interest for meat-department employees. We cannot say the 

Board’s analysis was unreasonable: It is surely appropriate 

for the Board to take account of the technological changes 

that make specialized skills unnecessary and thereby render 

inappropriate a bargaining unit that is premised on 

employees’ possessing those skills. 

Apart from the merits, the Union also raises a procedural 

point, but it requires little discussion. The Union argues that 

Wal-Mart may not re-litigate the appropriateness of the 

bargaining unit in the unfair labor practice proceeding, absent 

changed or special circumstances. The Board reasonably 

found, however, that the conversion of the meat department 

constituted changed or special circumstances, thereby 

allowing Wal-Mart to contest the unit determination in the 

unfair labor practice proceeding. See Wal-Mart Stores, Inc., 

348 N.L.R.B. No. 16, at 21-23; see also Frito-Lay, Inc., 177 

N.L.R.B. 820, 821 (1969); Super K-Mart, 322 N.L.R.B. 583, 

583 n.3 (1996). 

 

In sum, the Board carefully followed its meat-department 

precedents and reasonably determined that the Jacksonville 

meat-department unit no longer is appropriate because the 

employees no longer use specialized meat-cutting skills. The 
9 

Union’s various arguments to the contrary are unavailing. We 

therefore deny the Union’s petition for review. 

III 

We turn now to Wal-Mart’s petition. Wal-Mart 

challenges the Board’s requiring it to bargain with the Union 

over the effects of the conversion on the meat-department 

employees. As we have broken down the component parts of 

Wal-Mart’s argument, we discern four questions: 

First, does Wal-Mart have a duty to engage in effects 

bargaining with respect to the conversion of the meat 

department? The Board said yes. Under Board precedent, 

when a plant closes, the employer has a duty to bargain over 

the effects of the closing. See First Nat’l Maint. Corp. v. 

NLRB, 452 U.S. 666, 681-82 (1981). The Board found that 

Wal-Mart’s conversion to a pre-packaged-meat operation was 

analogous to a plant closing because the conversion, like a 

plant closing, eliminated the bargaining unit. The Board 

therefore concluded that Wal-Mart must bargain with the 

Union over the effects of the conversion. Notwithstanding 

Wal-Mart’s various attempts to distinguish those plant-closing 

precedents, the Board quite reasonably relied on them in this 

conversion case. 

 

Second, does Wal-Mart’s duty to engage in effects 

bargaining continue even after the meat department’s 

conversion rendered the bargaining unit inappropriate? The 

Board again said yes, relying again on the analogy to the 

plant-closing cases. An employer’s duty to bargain over the 

effects of a plant closing continues even after the closing: As 

the Board indicated, when a plant closes, an employer cannot 

escape its effects bargaining duty simply by saying “No one 

works here anymore; the bargaining unit has disappeared.” 
10 

348 N.L.R.B. No. 16, at 20 (2006); see also First Nat’l Maint. 

Corp. v. NLRB, 452 U.S. at 681-82; Freedman Die Cutters, 

Inc., 340 N.L.R.B. 422, 423 (2003); West Coast Sch., 208 

N.L.R.B. 725, 725-27 (1974). The Board therefore 

reasonably relied on the plant-closing precedents to find that 

the conversion did not extinguish Wal-Mart’s duty to bargain 

over the effects of the conversion. 

Third, does Wal-Mart’s duty to engage in effects 

bargaining apply even if the Union did not demand effects 

bargaining before the July 15, 2000, conversion of the meat 

department? The problem for Wal-Mart is that the factual 

premise is incorrect: The Union first demanded effects 

bargaining back in March 2000 after it learned of the 

conversion plan, well before the actual July 15 conversion. It 

repeated that demand several times; each time, Wal-Mart 

refused to bargain. Because the Union requested effects 

bargaining beginning in March 2000, we need not consider 

how this case would come out if the Union had not demanded 

effects bargaining before July 15, 2000; Board counsel 

candidly acknowledged the difficulty of that question. See Tr. 

of Oral Arg. at 18 (“That would present a much more difficult 

case . . . .”).2

 

Fourth, does Wal-Mart’s duty to engage in effects 

bargaining apply given that the Union was only elected, and 

not yet certified, before the July 2000 conversion that 

rendered the meat-department unit inappropriate? The Board 

said yes: Under its relation-back precedents, the Board 

 2

 Contrary to Wal-Mart’s suggestion, moreover, it had 

adequate notice in the Board proceedings of the temporal scope of 

the effects bargaining charge. See Complaint at 4-5, J.A. 163-64; 

Joint Exhibit 1 (March 2000 Union Letter), J.A. 399; cf. United 

Packinghouse, Food & Allied Workers Int’l Union, AFL-CIO v. 

NLRB, 416 F.2d 1126, 1134 n.12 (D.C. Cir. 1969). 
11 

ordinarily considers a union the elected representative of a 

bargaining unit as of the date of its election, not the date of its 

certification. If the Board “rejects the employer’s objections 

and certifies the union, the employer’s duty to bargain relates 

back to the date of the election . . . .” Mission Foods, 350 

N.L.R.B. No. 36, at 11 (2007). An employer therefore can 

commit an unfair labor practice by ignoring lawful bargaining 

demands during the period between election and certification. 

See, e.g., Timsco Inc. v. NLRB, 819 F.2d 1173, 1180 (D.C. 

Cir. 1987) (noting the “existence of extensive Board 

precedent suggesting that the duty to bargain often runs from 

the date of election rather than certification”); Dow Chem. Co. 

v. NLRB, 660 F.2d 637, 654 (5th Cir. 1981); Mike O’Connor 

Chevrolet-Buick-GMC Co., 209 N.L.R.B. 701, 703 (1974). 

Here, the Board reasonably applied its relation-back doctrine 

and did not carve out an exception for cases in which a union 

becomes inappropriate at some point between election and 

certification. The Board therefore reasonably found that the 

Union was protected against certain unfair labor practices – 

such as Wal-Mart’s refusal to engage in effects bargaining – 

from the time of the February 2000 election. 

 In sum, the Board reasonably applied its precedents in 

finding that Wal-Mart committed an unfair labor practice by 

failing to engage in effects bargaining with the Union. We 

therefore deny Wal-Mart’s petition for review.3

 3

 Wal-Mart also argues that the Union election was invalid 

because Union officials allegedly gave an illegal gratuity to an 

employee. The Board reasonably rejected this argument, and we 

need not discuss it further. 
12 

* * * 

 We deny the petitions for review and grant the Board’s 

cross-petition for enforcement. 

So ordered.