United States Court of Appeals

Fifth Circuit

FILED

February 16, 2005

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 04–60407

Summary Calendar

_______________

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

VERSUS

SUPERIOR PROTECTION, INC.,

Respondent.

_________________________

Petition for Enforcement of an Order of

the National Labor Relations Board

m 16–CA–23210

_________________________

Before DAVIS, SMITH, and

DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

The National Labor Relations Board (the

“Board”) seeks enforcement of its order compelling respondent Superior Protection, Inc.

(“Superior”), to bargain with United Government Secuity Officers of America, Local 229.

Superior contendsthat enforcement should be

denied on the sole ground that the collective

bargaining unit certified by the Board improperly accreted (i.e., added) employees hired

after the representation election into the certified bargaining unit without the benefit of an

election, thus improperly assigning to the

accreted employees the certified unit’s choice

of bargaining representative. 
2

We disagree. The Board’s bargaining unit

determination did not automatically effect an

accretion of newly-hired employees, and the

union is not seeking to accrete those employees as a consequence ofthe unit determination.

Accordingly, we grant the Board’s application

for enforcement. 

I.

Superior provides security services to

federal agencies pursuant to contracts with the

General Services Administration (“GSA”).

One of these contracts obligates Superior to

provide security officers to certain federal

facilities in three Texas countiesSSHarris,

Montgomery, and Galveston. 

In August 2001, the union filed a representation petition with the Board seeking certification as the collective-bargaining representative of security officers employed by Superior

and “assigned to work in federally owned and

leased property in Houston, Texas, including

the immediate surrounding areas, under the

Federal Government contract for security

services through the Employer (contractor).”

Superior opposed the petition, contending

that, although all security employees assigned

to work at GSA facilities in Harris County1

should be included, those in adjacent counties

(Montgomery and Galveston) should be

excluded from the certified unit. 

After a hearing, the Board’s Regional

Director issued a decision finding that all

security officers “assigned to work at GSA

contract facilities in Harris, Montgomery, and

Galveston counties” constituted the appropriate collective bargaining unit.2

 The Regional

Director directed that an election be held

among the employees in the unit. Superior

requested Board review of the decision to

include security officers from Montgomery and

Galveston Counties, but the Board denied the

request, finding that Superior had failed to

raise any substantial issue warranting review.

A mail ballot election among unit employees was conducted by the RegionalDirector in

October 2001. The secret ballots asked unit

employees to vote up or down on whether

they wished to be represented for purposes of

collective bargaining by the union. Of the 30

unit employees then believed eligible to vote,

20 cast ballots, of which 9 voted in favor of

representation by the union; 9 voted against;

and 2 ballots were challenged and not counted.

Superior and the union stipulated that one

of the challenged ballots had indeed been cast

by an ineligible voter. Thus, the single remaining challenged ballot, which had been cast

by unit employee Kevin Trotter, was determinative. Superior maintained that Trotter was

1

 The City of Houston is located primarily in

Harris County.

2 The Regional Director’s unit determination

(continued...)

2

(...continued)

provides:

The following employees of the Employer constitute a unit appropriate for the purpose of collectivebargainingwithin themeaning of Section

9(b) of the Act:

Included: All permanent, full-time and regular

part-time security officers assigned to work at

GSA contract facilities in Harris, Montgomery

and Galveston counties.

Excluded: All office clerical employees, employees on temporary assignment, professional

employees, managers and supervisors as defined by the Act.
3

ineligible because he had been discharged

before the election; the union countered by

alleging that Superior had committed unfair

labor practices by discharging Trotter for

having testified at the representation hearing

and for having engaged in union activity.

Superior and the union litigated the validity

of Trotter’s challenged ballot and the related

unfair labor practices complaint in a consolidated proceeding before an administrative law

judge (“ALJ”). In August 2002, the ALJ

sustained the union’s unfair labor practices

complaint, finding Superior’s proffered reasons for discharging Trotter to be “pure subterfuge, masking the true motive of retaliation

for Trotter’s testimony at the Board proceeding and his manifest support” for the union.

Thereafter, in a published decision issued in

July 2003, the Board adopted the ALJ’s unfair

labor practices finding and directed the Regional Director to open and count Trotter’s

ballot, issue a revised tally of ballots, and

provide the appropriate certification. See

Superior Protection Inc., 339 N.L.R.B. 118

(2003).

Trotter’s vote in favor of representation

was added to a revised tally issued by the

Regional Director, yielding a 10 to 9 vote in

favor of union representation. On August 25,

2003, theRegionalDirector certified the union

asthe exclusive collective-bargaining representative of employees in the previously certified

bargaining unit: “[a]ll permanent, full-time and

regular part-time security officers assigned to

work at GSA contract facilities in Harris,

Montgomery and Galveston counties.”

The union sought to bargain with Superior

and requested information from Superior

regarding unit employees. Superior refused to

bargain and refused the union’s request to

provide information about unit employees. 

In response, the union filed an unfair labor

practices complaint with the Board charging

Superior with refusing to bargain and failing to

furnish requested information in contravention

of § 8(a)(1) and (5) of the National Labor

Relations Act (“NLRA”), 29 U.S.C. §

158(a)(1), (5). The Board’s General Counsel

issued a complaint, and Superior filed an

answer in which it admitted its refusal to

bargain and to furnish requested information

but challenged the union’s certification as

bargaining representative on grounds that

(1) the certified bargaining unit inappropriately

included employees in Montgomery and

Galveston counties; and (2) Trotter was not an

eligible voter, and thus the union had not received a majority of valid votes. 

In January 2004, the Board issued a notice

to show cause why summary judgment should

not be granted in favor of the General Counsel. Superior responded by restating its initial

challengesSSthe certified bargaining unit was

inappropriate, and Trotter was not eligible to

vote in the electionSSand by advancing a

challenge to the Regional Director’s decision

to direct a mail ballot election and to the

manner in which the election was conducted.

In addition, Superior averred for the first

time that, even if the certified unit was appropriate as an original matter, it was no longer

appropriate because (after the RegionalDirector’s initial unit determination) Superior had

entered into a second contract with GSA to

provide security officers at eight additional

federalfacilitieswithin the geographic scope of

the certified unit. According to Superior, the

employees at these additional federal facilities

within the geographic scope of the certified

unit would effectively be accreted to the existing unit without an election, in violation of

Board policy.
4

In August 2004, the Board granted summary judgment in favor of the General Counsel, holding that Superior’s admitted refusal to

bargain and furnish requested information

constituted unfair labor practices in violation

of § 8(a)(1) and (5). See Superior Protection

Inc., 341 N.L.R.B. 35 (2004). In so doing, the

Board refused to reexamine Superior’s arguments regarding the propriety of the threecounty certified bargaining unit and Trotter’s

eligibility, reasoning that they had been fully

litigated and addressed in the pre-election

proceeding and the consolidated ballot challenge/unfair labor practices proceeding. The

Board similarlyrejected on procedural grounds

Superior’s challenge to the Regional Director’s decision to conduct a mail ballot election

and to the manner in which the election was

conducted. 

As for Superior’s claim that the certified

unit was no longer appropriate because the

employees at the eight additional GSA facilities it now services within the geographic

scope of the certified unit would necessarily

(and improperly) be accreted to the smaller

group of employees in the certified unit, the

Board rejected this claim on three grounds.

First, the Board noted that there was no indication that the Union was seeking to accrete

these new employees to the existing unit;

indeed, the Board pointed to a separate representation petition filed by the Union in January

2003 seeking to represent the new employees

at the additional GSA facilities as a separate

and distinct bargaining unit.3 

Second, the Board reasoned that the new

employees would not automatically be

accreted to the existing unit as a consequence

oftheBoard’s unit determination, especially in

light of Superior’s contention that the new

employees outnumber the existing unit employees and of the Union’s apparent position

(gauged from the separate representation

petition filed by the Union) that the new employees constitute a separate appropriate bargaining unit. Third, the Board observed that

Superior was not claiming that the two groups

of employees (old and new) had merged in a

manner that had obscured their separate identity. Consequently, the Board entered an

order compelling Superior to bargain with and

furnish information to the Union. 

Superior filed a motion for reconsideration

alleging that a “cursory inquiry” conducted by

the company after the Board’s decision revealed that the new employees at the additional GSA facilities had in fact merged or

consolidated with the existing unit employees.

The Board denied the motion, finding that

Superior had not carried its burden of demonstrating that it had been diligent in discovering

all available evidence and that the evidence

was in fact previously unavailable. In May

2004, the Board filed the instant application

for enforcement of its order compelling Superior to bargain with and furnish information to

the Union.

II.

Having abandoned a majority of the arguments advanced to the Board,4 Superior now

3 This petition has been docketed and isreferred

to by the Board in its summary judgment decision

as Case 16–RC–10480. The Board’s summary

judgment opinion reveals that the Regional Director took no action on this separate representation

petition during the pendency of the instant representation petition, instead holding it in abeyance

(continued...)

3

(...continued)

pending resolution of this matter.

4 Because Superior’s brief deals only with the

alleged accretion, the company has abandoned its

(continued...)
5

attacks the Board’s order on a single legal

ground: It contends that, because the certified

bargaining unit includes within its scope employees hired after the representation election

to work at additional federal facilities, the

Board improperly accreted these new employeesto the certified unit without affording them

an opportunity to manifest their will in a union

election. Because the union has not sought to

accrete these employees, nor have the employees been automatically accreted to the existing

unit as a consequence of the Board’s unit

determination, this contention is unavailing. 

A.

We review questions of law decided by the

Board de novo. “[I]f the Board’s construction

of the statute is ‘reasonably defensible,’ its

orders are to be enforced.’” NLRB v. Motorola, Inc., 991 F.2d 278, 282 (5th Cir. 1993)

(quoting Standard Fittings Co. v. NLRB, 845

F.2d 1311, 1314 (5th Cir. 1988)). 

B.

An accretion occurs when new employees,

or present employeesin new jobs, perceived to

share a sufficient community of interest with

existing unit employees, are added to an existing bargaining unit without being afforded an

opportunity to vote in a union election.5 The

accretion doctrine thus assigns to the accreted

employees the existing unit’s choice of bargaining representative. E.g., Baltimore Sun

Co. v. NLRB, 257 F.3d 419, 427 (4th Cir.

2001). “Essentially, the doctrine is designed

to preserve industrial stability by allowing

adjustments in bargaining units to conform to

new industrial conditions without requiring an

adversary election every time new jobs are

created or other alterations in industrial routine are made.” NLRB v. Stevens Ford, Inc.,

773 F.2d 468, 473 (2d Cir. 1985).

Notwithstanding any benefits to industrial

stability, because accreted employees are

absorbed into an existing collective bargaining

unit without an election and are governed by

the preexisting unit’s choice of bargaining

representative, the accretion doctrine sits in

substantial tension with the guarantee of employee self-determination reflected in § 7 of

the NLRA, which provides: 

Employeesshall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through

representatives of their own choosing, and

to engage in other concerted activities for

the purpose of collective bargaining or

other mutual aid or protection, and shall

also have the right to refrain from any or all

4

(...continued)

arguments related to the propriety of the original

certified unit; Trotter’s eligibility to vote in the union-shop election; theRegional Director’s decision

to direct a mail ballot election; and its challenge to

the manner in which the mail ballot election was

conducted.

5 The most common circumstances giving rise

to a claim of accretion involve an employer with a

preexisting bargaining unit that acquires an additional facility where the new employees’ interests

(continued...)

5

(...continued)

align with existing unit employees, and the union

attempts to add the new employees to the existing

bargaining unit without an election. See generally

Michael J. Frank, Accretion Elections: Making

Employee Choice Paramount, 5 U. PA. J. LAB. &

EMP. L. 101, 107–08 (2002); 1 THE DEVELOPING

LABOR LAW 404 (Patrick Hardin ed., 3d ed. 1992)

(“An employer’s acquisition or construction of an

additional operation or facility after the execution

of the contract frequently gives rise to a claim of

accretion.”). 
6

such activities . . . . 

29 U.S.C. § 157.6 Thus, although § 7 provides employees with the right to bargain

collectively through “representatives of their

own choosing” and “the right to refrain from”

collective bargaining,7the accretion doctrine

operates to contravene both of these

rightsSSi.e., accreted employees are forced to

accept both union representation itself and

representation by a particular union without

benefit of an election. 

Recognizing this conflict, the Board’s

jurisprudence “has historically favored employee elections,reserving accretionordersfor

those rare cases in which it could conclude

with great certainty, based on the

circumstances, that the employees’ rights of

self-determination would not be thwarted.”

Baltimore Sun, 257 F.3d at 427.8 Accordingly, the Board will accrete employees to an

existing unit without an election “only when

the additional employees have little or no

separate group identity and thus cannot be

considered to be a separate appropriate unit

and when the additional employees share an

overwhelming community of interest with the

preexisting unit to which they are accreted.”

Safeway Stores, Inc., 256 N.L.R.B. 918

(1981) (footnotes omitted).9

6

 See, e.g., Pix Mfg. Co., 181 N.L.R.B. 88, 90

(1970) (“[W]hen a claimof accretion is made to an

existing unit, a favorable determination forecloses

a vote and restricts the employeesin the exercise of

their basic right to select their bargaining representative. That right is the predominant consideration

under Section 7 of the Act and is to be restricted

only under ‘compelling conditions.’”); Baltimore

Sun, 257 F.3d at 429 (noting that “misuse of

accretion poses a significant threat to the selfdetermination rights of employees guaranteed by §

7 of the NLRA”); NLRB v. Ill.-Am. Water Co.,

933 F.2d 1368, 1377 (7th Cir. 1991) (“[C]ourts

exhibit heightened concern when applying the

accretion doctrine because the accreted employees

receive union representation without voicing their

own choices through an election.” (citing Consolidated Papers, Inc. v. NLRB, 670 F.2d 754, 757

n.4 (7th Cir. 1982)); id. (“To a certain extent, an

accretion interferes with the employees’ ‘freedom

to choose their own bargaining agents.’”) (citing

Consolidated Papers, 670 F.2d at 757 n.4).

7

See Baltimore Sun, 257 F.3d at 426 (“This

core provision guards with equal jealousy employees’ selection of the union of their choosing and

their decision not to be represented at all.”) (citing

Newport News Shipbuilding &Dry Dock Co., 233

N.L.R.B. 1443, 1452 (1977)).

8

See also Pan Am. Grain Co., 317 N.L.R.B.

442, 447 (1995) (“‘In furtherance of the statutory

duty to protect employees’ right to select their bargaining representative, the Board follows a restrictive policy in finding accretion.’”) (quoting

United Parcel Serv., 303 N.L.R.B. 326, 327

(1991)); Boire v. Int’l Bhd. of Teamsters, 479 F.2d

778, 795 (5th Cir. 1973) (“[T]he Board has traditionally been reluctant to find an accretion, even

where the resulting unit would be appropriate, in

those cases where a smaller unit, consisting solely

of the accreted unit, would also be appropriate and

the § 7 rights of the accreted employees would be

better served by denying the accretion.”); Stevens

Ford, 773 F.2d at 473 (“[B]ecause the accretion

doctrine generally imposes a bargaining representative on employees without an election, it should be

employed restrictively, with close cases being

‘resolve[d] . . . through the election process.’”

(quoting Westinghouse Elec. Corp. v. NLRB, 440

F.2d 7, 11 (2d Cir. 1971)). 

9

See also Baltimore Sun, 257 F.3d at 428

(“When the two-part test of Safeway Stores is

faithfully applied, accretion of employees to a bargaining unit will occur only in those extraordinary

cases in which theBoard can be reasonably certain

(continued...)
7

And, in furtherance of the NLRA’s policy

of employee self-determination, doubts as to

whether new employees share the requisite

overwhelming community of interest with the

existing unit are to be resolved through the

election process.10 Moreover, the Board will

not permit an accretion if the size of the group

to be accreted overshadows the number of

employees in the existing unit.11

C.

There is no basis in the record warranting

the conclusion that the union is attempting to

accrete the new employees at the additional

facilities to the certified unit. To the contrary,

as the Board observed, while the representation petition was pending before the Board,

the union filed a separate representation petition seeking to be certified as the exclusive

collective bargaining representative ofthe new

employees at the additional facilities as a

separate and distinct bargaining unit. In fact,

the union’s representation petition expressly

classified the scope of the proposed unit as

including “[a]ll sites other than locations in”

the instant representation proceeding. (Emphasis added.)

Because the union has notsought to accrete

the new employeesinto the existing unit, Superior’sreliance onRenaissanceCtr.P’ship, 239

N.L.R.B. 1247 (1979), and evidence of an alleged merger between the two groups of

employees is particularly misplaced. In Renaissance, the Board dismissed a union’s

clarification petition that sought to accrete a

numerically larger group of new employees to

an existing bargaining unit, even though the

evidence revealed that the two groups of

employees merged and had become indistinguishable. Here, however, the union is not

seeking to clarify the confines of the existing

unit by accreting new employees in light of

evidence ofemployeemerger or consolidation,

but instead isseeking to treat the new employees as a separate bargaining unit. 

Moreover, we reject Superior’s contention

that the new employees at the additional GSA

facilities will automatically be accreted to the

existing unit as a consequence of the unit

certified by the Board. Superior is no doubt

correct that the certified unit includes on its

face all security employees staffing GSA

facilities in the three-county area.12 But,

9

(...continued)

that no election is required and that the accreted

employees share such similar interests with employees in the bargaining unit that they would

choose it.”). This test is substantially more stringent than the traditional community of interest test

applied in “the Board’s more ordinary decision to

certify initially a particular group of employees as

an appropriate bargaining unit.” NLRB v. DMR

Corp., 795 F.2d 472, 475 (5th Cir. 1986). In that

context, “[t]he unit chosen need not be the most

appropriate, but only one which is appropriate under the circumstances.” Ochsner Clinic v. NLRB,

474 F.2d 206, 209 (5th Cir. 1973). In the accretion context, however, “[a] group of employees is

properly accreted to an existing bargaining unit

when they have such a close community of interests

with the existing unit that they have no true identity

distinct from it.” NLRB v. St. Regis Paper Co.,

674 F.2d 104, 107-08 (1st Cir. 1982).

10 See, e.g., Baltimore Sun, 257 F.3d at 429;

Westinghouse, 440 F.2d at 11; Martin Marietta,

270 N.L.R.B. 821, 822 (1984).

11 See, e.g., Gould, Inc., 263 N.L.R.B. 442,

445 (1982). 

12 As we have indicated, the certified bargaining

unit includes “[a]ll permanent, full-time and regu-

(continued...)
8

contraryto Superior’s assertions, this does not

mean that the new employees at the additional

facilities have been, or necessarily will be,

accreted to the certified unit: “[T]he Board .

. . does not automatically accrete employees at

a new [facility] solely because the unit descriptionincludes all the employer’s [facilities],

present and future, in a geographic area . . . .”

Coca-Cola Bottling Co., 310 N.L.R.B. 844,

844 (1993). Indeed, as the substantive law

regarding accretion indicates, a finding of

accretion is far from automatic: The Board

will permit an accretion only in the small class

of cases warranting a finding that the new

employees cannot be considered a separate appropriate unit and that they share an overwhelming community of interest with the

preexisting unit. 

To be sure, this case does present some circumstances that would militate in favor of a

finding of accretion by the BoardSSe.g., the

fact the new employees were acquired afterthe

unit determination but likely would have been

included in the certified unit if they had been

present earlier.13 At the same time, however,

Superior devotes considerable ink to a proposition that appears to present a nearly insurmountable obstacle to a board finding of

accretionSSnamely, that the new security

employees (of which there are 42) outnumber

the existing unit employees(of which there are

29).14 In fact, in rejecting Superior’s accretion

argument, the Board recognized that “accretionwould be inappropriate ifthe employees at

the additional facilities numerically overshadow the employees that existed at the time

of the election.” Thus, should the union alter

its current course and eventually seek to

accrete the new employeesto the existing unit,

Superior can raise this numerical objection

among others in that proceeding.

ENFORCEMENT GRANTED.

12(...continued)

lar part-time security officers assigned to work at

GSA contract facilitiesin Harris, Montgomery and

Galveston counties.”

13 In this regard, consider, for example, the

Board’s explanation in Pan American Grain of

when a finding of accretion would be justified: 

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 recognition or certification

or during the term of a collective bargaining

agreement. If the new employees have such

common interests with members of an existing

(continued...)

13(...continued)

bargaining unit the new employees would, if

present earlier, have been included in the unit or

covered by the current contract, then the Board

will permit accretion in furtherance of the

statutory objective of promoting labor relations

stability.

Pan Am. Grain, 317 N.L.R.B. at 447 (citing

Gould, 263 N.L.R.B. at 445).

14 See, e.g., Carr-Gottstein Foods Co., 307

N.L.R.B. 1318, 1318 (1992) (“When the unrepresented group sought to be accreted numerically

overshadows the existing unit, the board will not

accrete the larger number of unrepresented employees without giving them a chance to express

their representational desires.”).