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

_______________



### N ATIONAL 

### L ABOR 

### R ELATIONS 

### B OARD



### ,

Petitioner,

VERSUS



### S UPERIOR 

### P ROTECTION



### , I NC



### .,

Respondent

.



### _________________________

Petition for Enforcement of an Order of

the National Labor Relations Board



### m 16–CA–23210

_________________________

Before D AVIS

, S MITH , and

D ENNIS

, Circuit Judges.

J ERRY E. S MITH , Circuit Judge:

The Nat io nal Labor Relations Board (the

“Board”) seeks enforcement of its order compelling respondent Superior Protecti on, Inc

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

determinatio n did not automatically effect an

accretion of newly-hired employees, and the

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

Accordingly, we grant the Board’s application

for enforcement.

I.

Superior provides s e curity services to

federal agencies pursuant to contracts with the

General Services Administration (“GSA ”).

One of these con t racts obligates Superior to

provide security officers to ce r tain federal

facilit ies in three Texas counties 

### SS Harris,

Montgomery, and Galveston.

In August 2001, the union filed a representati on 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, und er the

Federal Government contra ct for security

services through the Employ er (contractor).”

Sup e rior opposed the petition, contending

that, although all security employees assigned

to work at GSA facilit

ies in Harris County 1

should be included, those in adjacent counties

(Montgom

ery 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 facilit

ies in Harris, Montgomery, and

Galveston counties” constituted the appropriate c o llective bargaining unit. 2 The Regional Director directed that an election be held

among the emplo yees in the unit. Superior

requested Board review of the dec ision to

include se curi

ty officers from Montgomery and

Galveston Counties, but the Board denied the

request, finding that Superior had fa iled to

raise any substantial issue warranting review.

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

October 2001. The secret ballots asked unit

employees to vote up or do wn 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 o f

representati o n by the union; 9 voted against;

and 2 ballots were challenged and not counted.

Su p erior and the union stipulated that one

of the challenged ballots had indeed been cast

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

by unit employee Kevin Trotter, was determinat i ve. Superior maintained that Trotter was

1 T he 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 collective bargaining within the meaning of Section

9(b) of the Act:

Included : All permanen t, full-time and regular

part-tim e 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

b efore the election; the union countered b y

alleging that S u perior had committed unfair

labor p ractices by discharging Trotter for

having testified at the representati o n hearing

and for having engaged in union activity.

Superior and the union litigated the validity

of Trotter’s challenged ballot and the rel ated

unfair la b or practices complaint in a consolidated proceeding before an administrative law

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

sustained the un io n’s unfair labor practices

complaint, finding Superior’s p roffered reasons for disch arging 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

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

ballot, issue a revised tally of bal lots, and

provide t he appropriate certification. S ee

Superior Protection Inc.

, 33 9 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, the Regional Director certified the union

as the exclusive col l

ective-bargaining representative of employees in the previously certified

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

regular part-time security officers assigned to

work at GSA contract facilit ies 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 complai nt with the Board charging

Superior with refusing to bargain and failing to

furnish requested information in contravention

of § 8(a)(1) and (5) of

t he 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 i n which it admitted its refusal to

bargain a nd t o furnish requested information

but challenged the union’s certi fication as

bargaining representative on grounds that

(1) the certified bargaining unit inappropriately

i ncluded employees in Montgomery and

Galveston counties; and (2) Trotter was not an

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

In January 2004, the Board issued a notice

to show cause why summary judgment should

no t be granted in favor of the General Counsel. Superior responded by restating its initial

challe nges 

### S

S the certified bargaining unit was

inappropriate, and Trotter was not eligible t o

vote in the el ecti on 

### S

S and by advancing a

cha llenge to the Regional Director’s decision

to direct a mail ballot electi on and to the

man ner in which the election was conducted.

In addit io n, Superior averred for the first

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

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

entered into a second contract with GSA to

provide security o ffic e rs at eight additional

federal facilit

ies within the geographic scope of

the certified unit. According to Superior, the

employees at these additional federal facilit ies

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 reques t ed information

constituted unfair labor practices in violation

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

Inc.

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

Board ref u sed to reexamine Superior’s arguments regarding the propriety of the threecounty ce r t ified bargaining unit and Trotter’s

eligibilit y, reasoning that they had been f ully

litigated and addressed in the pre-election

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

Board similarly rejected 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 tha t t he certified

unit was no longer appropriate because the

employees at the eight additional GSA facilities it now services within the geog raphic

scope of the certified unit would necessarily

(and improperly) be acc ret ed to the smaller

group of employees in the certifi ed uni t, the

Board reject e d this claim on three grounds.

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

th ese 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 t he additional GSA facilities as a separate

and distinct bargaining unit. 3 S econd, the Board reasoned that the new

employees would not automatically be

accreted to the existing unit as a consequence

of the Board’s unit determination, especially in

light of Superior’s co nt ention that the new

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

(gauged fro m the separate representation

petition filed by the Union) that t h e 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 mer ged 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 GS A facilities had in fact merged or

consolidated with the existing unit employees.

The Board denied th e mo t ion, finding that

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

all available e vidence and that the evidence

was in fact previou sly 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 majo rit y of the arguments advanced to the Board, 4 Superior now

3 This petition has been docketed and is referred

to by the Board in its summary judgment decision

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

judgment opinion reveals that the Regional Director took no action

on this separate representation

petition during the pend ency of the instant representation petition, instead h o lding it in abeyance

(continued...) 3 (...continued)

pending resolution of this matter.

4 Because Superior’s brief deals only with the

all eged accretion, the company has abandoned its

(continued...)5

attacks the Board’s order o n a single legal

ground: It contends that, because the certified

bargaining unit includes w i thin its scope employees hired after the representation election

to work a t additional federal facilities, the

Board improperly accreted these new employees to the certified unit without affording them

an opportuni ty 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 a s a consequence of the Board’s unit

determination, this co nt ention is unavailing.

A.

We review questions of law decided by the

Board de novo

. “[I]f the Board’s construction

of the statute is ‘re aso nably 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 employees in new jobs, perceived to

sh are a sufficient community of interest with

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

opportuni ty to vote i n a union election. 5 The accretion doctrine thus assigns to the accreted

employees the existin g unit’s choice of bargaining representative. E.g.

, Baltimore Sun

Co. v. NLRB

, 25 7 F.3d 419, 427 (4th Cir.

2001). “Essentially, the doctrine is designed

to preserve industrial stability by a llo wing

adjustments in bargaining units to conform to

new industrial conditions without requiring an

adversar y election every time new jobs are

created or other alterations in industrial routine are made.” N

LRB v. Stevens Ford, Inc.

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

Notwithstanding any benefits to industrial

sta b ilit y, because accreted employees are

absorbed into an existing collective bargaining

unit without an election a n d are governed by

the preexisting unit’s choice of bargaining

representative, the accret io n doctrine sits in

substantial tension with the guarantee of employee self-determinati o n reflected in § 7 of

the NLRA, which provides:

Employees shall have the right to self-organization, to form, join, or as sist l abor organizations, to bargain collectively through

representatives of their own choosing, and

to engage in other c o ncerted activities for

the purpose of collective bargaining or

other mutual aid or protecti on, 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; the Regional 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 r ise

to a claim of accretion involve an employer with a

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

(continued...) 5 (...continued)

align wit h existing unit employees, and the union

attempts to add the new employees to the existing

bargaining unit without an election. S ee generally

Michael J. Frank, Accretion Elections: Making

Employee Choice Paramount , 5 U. P A

. J. L AB

. &

E MP

. L. 101, 107–08 (2002); 1 T HE D EVELOPING

L ABOR L AW 404 (Patrick Hardin ed., 3d ed. 1992)

(“An employer’s acquisition or construction of an

additional operation or facility after the execution

o f 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 “representative s o f their

own choosing” and “the right to refrain from”

collective barga ining, 7 the accretion doctrine

operates to contravene both of th e se

rights 

### SS i.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 accretion orders for

those rare cases in which it could conclude

with great certai nty , based on the

circumstances, that the employees’ rights of

self-determination would not be thwarted.”

Balti more Sun , 257 F.3d at 427. 8 Accordingly, the Board will accrete employees to an

existing unit without a n election “only when

the addi t ional employees have little or no

separate group identity a nd t hus cannot be

considered to be a separ a te appropriate unit

and when the addi

t ional employees share an

overwhelming community of interest with the

preexisting unit t o which they are accreted.”

S afew ay 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 claim of accretion is made to an

existing unit, a favorable determination forecloses

a vote and restricts the employees in the exercise of

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

under Section 7 of the Act an d is to be restricted

only under ‘compel ling conditions.’”); B altimore

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 N L RA”); 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 representa t ion 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 certa in extent, an

a ccretion interferes with the employees’ ‘freedom

to ch oose their own bargaining agents.’”) (citing

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

7 See Baltimore Sun

, 257 F.3 d 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 bargaini ng representative, the Board follows a restrictive policy in finding accretion.’”) (quoting

Unite d 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 Boar d has traditionally been reluctant to find an accretion, even

where the resul ting 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 de n ying the accretion.”); Stevens

F ord

, 773 F.2d at 473 (“[B]ecause the accretio n

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

employed r estrictively, with close cases being

‘resolve[d]

. . . th

rough the election process.’”

(quoting Westinghouse Elec. Corp. v. NLRB

, 440

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

9 See also Baltimore Su n , 257 F.3d at 428

(“When th e two-part test of S afeway Stores is

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

cases in which the Board can be reasonably certain

(continued...)7

And, in furtherance of the N L RA’s policy

of employee self-determinat ion, doubts as to

whether new employees share the requisite

overwhelming community of interest with the

existing unit are to be reso lved through the

election process. 10 Moreover, the Board will

not permit an accretion if the size of the group

t o 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

facilit ies to the certified unit. To the contrary

, as the Board observed, while the representat i on petition was pending before the Board,

the union filed a separate representation petition seeking to be certified as the exclu s ive

collective bargaining representative of the new

employees at the addit io nal facilities as a

separate and distinct bargaining unit. In fact,

the uni o n’s representation petition expressly

classified the scope of the proposed unit as

including “[a]ll sites other than l o cations in”

the insta n t representation proceeding. (Emphasis added.)

Because the union has not sought to accrete

the new employees into the existing unit, Superior’s reliance on Renaissance Ctr. P’ship

, 239

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

e mployees is particularly misplaced. In Renaissance

, the Board dismissed a unio n’s

clarification petition tha t sought to accrete a

numerically larger group of new employees to

an existing b argaining unit, even though the

evidence reveale d that the two groups of

e mplo yees merged and had become indistinguishable. Here, however, the union is not

seek ing to clarify the confines of the existing

unit by accreting new employee s in light of

evidence of employee merger or consolidation,

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

Moreover, we reject Superior’s contention

that the new employees at the additional GSA

facilit ies will automatic a lly be accreted to the

existing unit as a consequence o f the unit

certifie d by t he Board. Superior is no doubt

correct that the certified unit includes o n its

face all security emp lo yees staffing GSA

faci lities in the three-county area. 1 2 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. 1 973). 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

, 2 57 F.3d at 429;

Westinghouse

, 440 F.2d

at 11; M artin 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

contrary to Superior’s assertions, this does not

mean that the new employees at the additional

facilit ies have been, or n ecessarily will be,

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

.

. . does not automatically accrete employees at

a new [facility] solely because the unit description inc l

udes 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 accr et ion indicates, a finding of

accretion is far from autom ati c: 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 appropriat e unit and that they share an overwhelming com

munity of interest with the

preexisting unit.

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

finding of accretio n by the Board 

### S S e.g., the

fact the new employees were acquired after the

unit determination but likely would have been

included in the certifi ed 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 ne arly insurmountable obstacle to a board findin g of

accretion 

### SS

name l y, 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 “accretion would be inappropriate if the employees at

the additional f

acilities 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 employees to the existing unit,

Superior c an raise this numerical objection

among others in that proceeding.

ENFORCEMENT GRANTED.

12 (...continued)

lar part-time security officers assigned to work at

GSA contract facilities in Harris, Montgomery and

Galveston counties.”

13 In this reg ard, 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 i n 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 ne w employees would, if

present earlier, have been included in the unit or

covered by the current contract, then the Board

will permit acc r etion 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

ov e rshadows the existing unit, the board will not

accrete the larger number of u nr epr esented employees without giving them a chance to express

their representational desires.”).