PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SARA LEE BAKERY GROUP, 

INCORPORATED, formerly known as

The Earthgrains Company,

Petitioner,  No. 01-2067

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent. 

NATIONAL LABOR RELATIONS BOARD, 

Petitioner,

v.  No. 01-2228 SARA LEE BAKERY GROUP,

INCORPORATED, formerly known as

The Earthgrains Company,

Respondent. 

On Petition for Review and Cross-Application

for Enforcement of an Order

of the National Labor Relations Board.

(26-CA-18630, 26-CA-18717)

Argued: February 27, 2002

Decided: July 15, 2002

Before NIEMEYER and LUTTIG, Circuit Judges, and

Henry M. HERLONG, Jr., United States District Judge

for the District of South Carolina, sitting by designation.
Petition for review granted in part and denied in part and crossapplication for enforcement granted in part and denied in part by published opinion. Judge Niemeyer wrote the opinion, in which Judge

Herlong joined. Judge Luttig wrote an opinion concurring in part and

dissenting in part. 

COUNSEL

ARGUED: Charles Preyer Roberts, III, CONSTANGY, BROOKS &

SMITH, L.L.C., Winston-Salem, North Carolina, for Sara Lee. David

S. Habenstreit, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for Board. ON BRIEF: Arthur

F. Rosenfeld, General Counsel, John E. Higgins, Jr., Deputy General

Counsel, John H. Ferguson, Associate General Counsel, Aileen A.

Armstrong, Deputy Associate General Counsel, Anne Marie Lofaso,

NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for

Board. 

OPINION

NIEMEYER, Circuit Judge: 

After The Earthgrains Company, Inc., a manufacturer of baked

goods, acquired CooperSmith, Inc., another manufacturer of baked

goods, and consolidated the facilities of the two companies in several

cities, the National Labor Relations Board (the "Board" or the

"NLRB") accreted CooperSmith’s employees, who had not been represented by a union, into Earthgrains’ existing bargaining units without giving the CooperSmith employees a chance to vote on whether

they wished to be so represented. When Earthgrains refused to recognize the union at four of its Mississippi facilities — Meridian, Laurel,

Hattiesburg, and Columbus — the Board found that Earthgrains committed unfair labor practices in violation of the National Labor Relations Act ("NLRA") and ordered Earthgrains to recognize the union

at the four sites. 

On Earthgrains’ petition for review and the NLRB’s crossapplication for enforcement of its order, we conclude that at three of

2 SARA LEE BAKERY GROUP v. NLRB
the sites, the Board failed to apply its own precedents for accreting

employees, and accordingly, with respect to those sites, we grant

Earthgrains’ petition for review and deny the Board’s crossapplication for enforcement. At the remaining site, we deny Earthgrains’ petition for review and grant the Board’s application for

enforcement. Finally, with respect to a Board finding that Thomas

Neal, an Earthgrains’ employee, was constructively discharged for

exercising statutory rights, we grant the Board’s application to

enforce as modified herein.

I

The Earthgrains Company, Inc. (now Sara Lee Bakery Group, Inc.)

("Earthgrains") manufacturers and distributes baked goods throughout

the United States through distribution facilities, some of which also

contain bakery stores. At many of these facilities, Earthgrains’

employees have elected to be represented by the Bakery, Confectionary, and Tobacco Workers International Union (the "Union"). Before

Earthgrains acquired CooperSmith, Inc., it had 19 distribution facilities in Mississippi, which were divided into three bargaining units,

each of which had a collective bargaining agreement with Earthgrains. 

On January 16, 1998, Earthgrains acquired CooperSmith, a competing distributor of baked goods, which also operated several facilities in Mississippi. None of CooperSmith’s employees were

represented by a union. 

In cities where Earthgrains ended up with multiple facilities as a

result of its acquisition of CooperSmith, Earthgrains consolidated the

CooperSmith and Earthgrains facilities, closing either a former Earthgrains facility or a former CooperSmith facility and naming the new

facility according to which company had the more dominant market

share in the particular city. Earthgrains then associated union status

with the name of the facility, continuing its recognition of the Union

at facilities named Earthgrains and refusing to recognize the Union at

facilities named CooperSmith. 

In Meridian, Laurel, and Hattiesburg, Mississippi, Earthgrains

closed its own former facilities and continued distribution using the

SARA LEE BAKERY GROUP v. NLRB 3
former CooperSmith facilities, transferring former Earthgrains

employees to the new CooperSmith facilities to work there with the

former CooperSmith employees.1 After the consolidation, 11 of the 13

employees at Meridian were former CooperSmith employees; 8 of 9

employees at Laurel were former CooperSmith employees; and 10 of

15 employees at Hattiesburg were former CooperSmith employees.

At Columbus, Earthgrains closed the CooperSmith facility and transferred the former CooperSmith employees to the Earthgrains facility.

The consolidated facility had 4 former Earthgrains employees and 3

former CooperSmith employees. But because the Columbus market

was dominated by the CooperSmith brand, Earthgrains renamed the

former Earthgrains facility CooperSmith. 

After Earthgrains declined to recognize the Union at the four facilities operating under the CooperSmith name, the NLRB’s General

Counsel charged Earthgrains with unfair labor practices in failing to

negotiate with the Union, in violation of §§ 8(a)(1) and 8(a)(5) of the

NLRA. In a split decision, the Board concluded that Earthgrains had

violated the NLRA by refusing to negotiate with the Union and by

making unilateral changes at these four facilities. In addition, the

Board found that Earthgrains had constructively discharged Thomas

Neal, an employee at Columbus, for exercising his rights under the

NLRA, in violation of § 8(a)(3) of the Act. 

In ruling that the newly-acquired CooperSmith facilities should

have been included in preexisting Earthgrains bargaining units, the

Board concluded that the acquisition "did not affect the appropriateness of the bargaining units or [Earthgrains’] obligation to recognize

the Union as representative of those units, as enlarged by the accretion of CooperSmith employees." Chairman Peter Hurtgen dissented,

concluding that the majority had failed to identify the issue properly.

He stated that "the real issue is whether the newly acquired CooperSmith employees are appropriately a part of the two respective units.

. . . The issue here is whether the new employees can be added to the

unit without a vote." Addressing that issue, Chairman Hurtgen con1At Meridian, Earthgrains transferred only a portion of its employees

to the new CooperSmith facility, retaining bakery workers at the former

Earthgrains facility. 

4 SARA LEE BAKERY GROUP v. NLRB
cluded that "accretion requires a finding of ‘overwhelming community of interest,’" a finding which was not supported by the record. 

From the Board’s order, Earthgrains filed this petition for review,

and the NLRB filed a cross-application for enforcement of its order.

II

The principal question on appeal is whether the Board applied its

long-standing principles for defining bargaining units and for accreting employees to existing bargaining units when it held that Earthgrains had an obligation to recognize bargaining units "as enlarged by

the accretion of CooperSmith employees." In deciding such questions,

the Board must apply its principles consistently. See, e.g., NLRB v.

Lundy Packing Co., 68 F.3d 1577, 1583 (4th Cir. 1995). 

At the outset, we agree with Chairman Hurtgen that the particular

issue presented is whether the Board properly accreted the CooperSmith employees to Earthgrains’ preexisting bargaining units — not

whether Earthgrains’ existing units remained "appropriate."2 Because

Earthgrains contends that it need not recognize union representation

of the newly acquired CooperSmith employees, who had never been

represented by a union or had the opportunity to vote for representation, the issue is whether accretion was justified and not whether the

2Our colleague in dissent likewise focuses on the appropriateness of

Earthgrains’ existing bargaining units, articulating the issue of whether

former Earthgrains’ employees "must be treated as separate bargaining

units." (Emphasis added). Earthgrains, however, does not challenge the

appropriateness of its existing bargaining units. Rather it raises the question of whether the Board could, in its discretion, recognize that the

CooperSmith employees, at their respective facilities, might be constituted as separate units. If they could be so constituted, Earthgrains contends that the CooperSmith employees could not be accreted to the

existing Earthgrains’ units and thereby be denied the right to an election.

Chairman Hurtgen likewise recognized the actual issue raised by Earthgrains, noting, "the real issue is whether the newly acquired CooperSmith employees are appropriately a part of the two [Earthgrains] units."

He restated this issue as "whether the new employees can be added to the

unit without a vote." 

SARA LEE BAKERY GROUP v. NLRB 5
existing units remained appropriate. The transactional facts relating to

this issue are not in dispute. 

With respect to the CooperSmith employees at Meridian, Laurel,

and Hattiesburg, the former CooperSmith facilities remained open,

and the CooperSmith employees continued to work at those facilities.

While Earthgrains transferred a few of its own former employees to

each CooperSmith facility, the majority at each site remained former

CooperSmith employees, and those employees had never elected to be

represented by a union. With respect to the former CooperSmith

employees at Columbus, they were transferred to a former Earthgrains

facility where Earthgrains employees also worked. At that site, Earthgrains’ employees, who were represented by the Union, remained in

the majority. 

In determining that the former CooperSmith employees at all four

of these facilities should be accreted to two existing Earthgrains bargaining units, the Board stated simply: 

There is substantial record support for the [administrative

law] judge’s finding that [Earthgrains’] consolidation of its

existing operations with [CooperSmith] did not affect the

appropriateness of the bargaining units or [Earthgrains’]

obligation to recognize the Union as representative of those

units, as enlarged by the accretion of CooperSmith employees. Specifically, the record shows that: [Earthgrains] continues to produce and distribute bakery products without

substantial changes in operations; employees from the historically represented units comprise a majority in each overall expanded unit; no other labor organization represented

the CooperSmith employees; and those employees share a

community of interests with the previously represented

employees in the consolidated operations. 

(Emphasis added). The Board did not address whether a community

of interests existed between the employees of each of these separate

facilities and the bargaining unit or whether the employees at each

separate facility had a separate group identity sufficient to be considered a separate bargaining unit. 

6 SARA LEE BAKERY GROUP v. NLRB
On appeal, Earthgrains argues that the Board "disregarded the

appropriate decisional line, made no effort to explain why it had disregarded [its] precedent[s], and applied a completely inconsistent

analysis that was patently inapplicable." It argues that the Board

failed to take into account the fact that Earthgrains acquired new

facilities in distinct geographical locations, thus overlooking its case

law, which applies a presumption that a new facility has a separate

group identity sufficient to be considered a separate bargaining unit.

The NLRB regulates in the broad policy context that "[e]mployee

self-determination in the collective bargaining process is perhaps the

[NLRA’s] most fundamental promise." Baltimore Sun Co. v. NLRB,

257 F.3d 419, 426 (4th Cir. 2001). Specifically, § 7 of the NLRA

grants employees the right to choose equally between self organization through representatives "of their own choosing" and the right "to

refrain" from any collective bargaining activity. 29 U.S.C. § 157; see

also Melbet Jewelry Co., 180 N.L.R.B. 107, 109 (1969). 

To protect the employees’ right of self-determination, the Board is

given broad discretion to define appropriate collective bargaining

units. See 29 U.S.C. § 159(b); Lundy Packing, 68 F.3d at 1579-80.

Those units, in turn, vote on union representation, and, if the union

wins, the union may bargain collectively with the employer to reach

a collective bargaining agreement that will govern the unit for an

agreed term. During the term of the collective bargaining agreement,

new employees of the company where the bargaining unit exists are

routinely accreted into the unit to be bound by the agreement. See,

e.g., Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 786 (1996)

(describing the union’s entitlement to a presumption of majority status during the term of a collective bargaining agreement). But that

routine course of action assumes that the new employees have "little

or no separate group identity and thus cannot be considered to be a

separate appropriate unit." Baltimore Sun, 257 F.3d at 427 (citation

and internal quotation marks omitted). 

In contrast, when an entire group of nonunion employees joins a

union company, accretion is rare and is reserved only for "cases in

which [the Board] 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. Specifically,

SARA LEE BAKERY GROUP v. NLRB 7
through its announced standard, the Board rejects accretion unless

two prerequisites have been satisfied: (1) the Board must find that the

new employees have "an insufficient group identity to function as a

separate unit"; and (2) it must find an "overwhelming community of

interest," such that the accreted employees have "interests [that] are

so closely aligned with those of the preexisting bargaining unit that

the Board can safely assume that the accreted employees would opt

into the unit if given the opportunity." Baltimore Sun, 257 F.3d at 427

(citing Safeway Stores, 256 N.L.R.B. 918, 918 (1981)). 

When a company acquires new employees through the acquisition

of an entire facility, the Board has presumptively treated the employees at the new facility as a separate bargaining unit. See, e.g., ATS

Acquisition Corp., 321 N.L.R.B. 712, 712 (1996); Gitano Groups,

Inc., 308 N.L.R.B. 1172, 1175 (1992). And the Board generally does

not compel the employees at the new facility to be included in a preexisting bargaining unit "without allowing those employees the

opportunity of expressing their preference in a secret election."

Archer Daniels Midland Co., 333 N.L.R.B. No. 81, 2001 WL 303760,

at *6 (2001) (quoting Melbet Jewelry, 180 N.L.R.B. at 110); Kroger

Co., 155 N.L.R.B. 546, 548-49 (1965) (requiring new elections when

two plants "merge into an entirely new operation"); General Extrusion Co., 121 N.L.R.B. 1165 (1958) (refusing to apply the contract

bar doctrine where "changes have occurred in the nature as distinguished from the size of the operations . . . involving . . . a merger

of two or more operations"). But even if the Board fails to apply this

presumption, it will bypass elections and accrete the employees at the

separate facility into the existing bargaining unit only when it is clear

that a majority of the employees at the new facility acquired by the

company wishes to join the existing bargaining unit — i.e., only

where the Board "could conclude with great certainty . . . that the

employees’ rights of self-determination would not be thwarted." Baltimore Sun, 257 F.3d at 427. 

At the three locations where Earthgrains acquired new facilities

and where it continued with CooperSmith employees — Meridian,

Laurel, and Hattiesburg — the Board failed to apply its presumption

that each new facility be regarded as a separate bargaining unit. See

ATS Acquisition, 321 N.L.R.B. at 712; Gitano Group, 308 N.L.R.B.

8 SARA LEE BAKERY GROUP v. NLRB
at 1175. For this reason alone, we decline to enforce the Board’s order

accreting the employees at those facilities. 

But even without the presumption from ATS Acquisition and

Gitano Group, the Board failed to apply its long-standing principles

for accreting groups of new employees into existing bargaining units.

It did not, and could not, conclude that the employees at each CooperSmith facility had an "insufficient group identity to function as a separate unit," Baltimore Sun, 257 F.3d at 427, and that the community

of interest between those employees and the employees in the existing

Earthgrains bargaining unit was "overwhelming," Safeway Stores,

256 N.L.R.B. at 918. To reach such a conclusion, the Board would

have had to find that the former CooperSmith employees, at each historically nonunionized facility in a location geographically distinct

from employees in the Earthgrains bargaining unit, could not have a

group identity sufficient to form a bargaining unit. See Arcadian

Shores, Inc. v. NLRB, 580 F.2d 118, 120 (4th Cir. 1978). Given its

broad discretion to define bargaining units, the Board could not have

overcome that barrier. And without satisfying itself that the employees at each separate facility could not have a group identity, the Board

could not have accreted the CooperSmith employees to an existing

bargaining unit.

Moreover, the Board could not have satisfied the second step of its

Safeway Stores accretion standard — that the CooperSmith employees had an "overwhelming" community of interest with the Earthgrains employees in the bargaining units. To decide that question, the

Board traditionally applies a 12-factor test, considering: 

(1) similarity in the scale and manner of determining the

earnings; (2) similarity in employment benefits, hours of

work, and other terms and conditions of employment; (3)

similarity in the kind of work performed; (4) similarity in

the qualifications, skills, and training of the employees; (5)

frequency of contact or interchange among the employees;

(6) geographic proximity; (7) continuity or integration of

production processes; (8) common supervision and determination of labor-relations policy; (9) relationship to the

administrative organization of the employer; (10) history of

SARA LEE BAKERY GROUP v. NLRB 9
collective bargaining; (11) desires of the affected employees; (12) extent of union organization.

Lundy Packing, 680 F.3d at 1580. The Board did not conduct this

analysis. And if it had conducted the analysis, even the limited record

in this case demonstrates the Board could not have overcome this second step. 

Notwithstanding the similarity between CooperSmith’s and Earthgrains’ operations, the CooperSmith employees worked at separate

facilities in geographical locations distinct from the areas in which

employees in Earthgrains’ bargaining units worked. In addition,

CooperSmith employees worked under conditions that developed

over years of working for CooperSmith before it was acquired by

Earthgrains. And the employees at the CooperSmith facilities had

never been unionized or subject to a collective bargaining agreement.

Finally, even after a few Earthgrains employees were transferred to

each of the former CooperSmith facilities, the CooperSmith employees continued to outnumber the Earthgrains employees by substantial

margins — 11 to 2 at Meridian; 8 to 1 at Laurel; and 10 to 5 at Hattiesburg. These data alone suggest that the former CooperSmith

employees might successfully assert their historically separate interests through a vote, if given the chance. Certainly, the Board could

not "safely assume that the accreted [CooperSmith] employees would

opt into [the relevant Earthgrains] unit if given the opportunity." Baltimore Sun, 257 F.3d at 427. As we observed in Baltimore Sun: 

Because the accretion doctrine is in considerable tension

with the statute’s guarantee of employee self-determination,

the Board has historically favored employee elections,

reserving accretion orders for 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. 

Id.

Accordingly, we conclude that the Board, in accreting the CooperSmith employees at the Meridian, Laurel, and Hattiesburg facilities

into two Earthgrains bargaining units, failed to follow its own stan10 SARA LEE BAKERY GROUP v. NLRB
dards for doing so. Therefore, we decline to enforce the Board’s order

directing Earthgrains to recognize that those employees are represented by the Union. 

At the Columbus facility, however, the circumstances are sufficiently different to justify a different result. Even after its acquisition

of CooperSmith, Earthgrains continued the operation of its own former facility in Columbus, even though it changed the name of that

facility to CooperSmith, and it transferred the former CooperSmith

employees to the former Earthgrains facility. Also, after the CooperSmith employees were transferred to the former Earthgrains facility,

the Earthgrains employees continued to outnumber the CooperSmith

employees, four to three. Because the former CooperSmith employees

were moved into the Earthgrains facility and worked there under the

conditions historically established through a collective bargaining

agreement, the presumption of ATS Acquisition and Gitano Group

would not apply. Moreover, when we apply the traditional standards

for accreting employees, the outcome becomes a much closer question, and we cannot conclude that the Board violated its own standards. Accordingly, we will grant the Board’s cross-application to

enforce its order insofar as it applies to the Columbus facility.3

III

Earthgrains also challenges the Board’s finding that Earthgrains

violated § 8(a)(3) of the NLRA by "constructively discharging"

Thomas Neal for exercising his statutory rights. 

Neal was hired in November 1996 as a route salesman at Earthgrains’ Columbus facility. A few months later, in February 1997, his

3We reject Earthgrains’ additional argument for refusing to recognize

the Union at Columbus. Earthgrains argues that because the local union

was placed in trusteeship by reason of financial deficiencies and defalcations, it was unable to represent Earthgrains’ employees adequately. But

we can find nothing in the record to suggest that the interests of the

employees were ever compromised. To the contrary, since September

1998, when the trusteeship began, the trustee has continued to meet and

negotiate with Earthgrains to the extent that Earthgrains was willing to

bargain. 

SARA LEE BAKERY GROUP v. NLRB 11
route was eliminated, and Neal was laid off. Shortly thereafter, however, Neal was recalled as a depot loader. He was told upon his return

that he could return to his route salesman position if a route came

open. 

Following Earthgrains’ acquisition of CooperSmith in January

1998, sales routes were restructured and reassigned. When Neal was

not given one of the routes, he filed a grievance through the Union,

which was rejected. Subsequently, when a route salesman was fired

and another route came open, Neal requested that route. He was told,

however, that he would get the route only if Willie Williams, another

employee, turned it down. When Neal asked why Williams had priority for the position, Neal claims that he was told by David Willis, his

supervisor, "If I had kept my nose — if I’d keep my nose clean and

leave the union mess alone, I could get a route." Neal was left with

the belief that he "would have got a route" but for his union participation. 

Neal nevertheless continued to work as a depot loader for approximately another month and a half. He then resigned, giving the following explanation for his resignation: 

I had heard that they were going to try to do away with my

job regardless, because they was going to try to work where

there wouldn’t be a depot loader, and I figured I better get

out of there before they laid me off, so I turned in a week’s

notice the first part of June and worked it out. 

Neal’s fear of losing his job was based on an informal conversation

with a Meridian supervisor about rumors from which Neal drew inferences. But Neal was never told by the company, or even formally by

anyone, that his job would be eliminated. Nor was he told that, in the

event of the elimination of his job, he would lose his job rather than

being transferred to a new position. And as it turned out, the rumors

on which Neal acted were inaccurate. Neal’s depot loader position

was never eliminated. 

We conclude that substantial evidence supports the Board’s finding

that Earthgrains, by refusing to promote Neal to route sales representative, violated § 8(a)(3) of the NLRA. Neal’s testimony, which was

12 SARA LEE BAKERY GROUP v. NLRB
not rebutted, supports the Board’s conclusion that Neal was not given

the route salesman position because of his union participation.

Accordingly, we affirm the Board’s finding that an illegal animus

contributed to Earthgrains’ decision to deny Neal a position as route

sales representative. 

But on the Board’s finding that Earthgrains violated § 8(a)(3) by

"constructively discharging" Neal from his job as depot loader, we

conclude that the Board had no substantial evidence to support its

finding. 

To prove constructive discharge, the General Counsel would have

to establish "that the employer [intentionally] made the employee’s

working conditions intolerable" and "that the employer did so because

of the employee’s union activities." NLRB v. Grand Canyon Mining

Co., 116 F.3d 1039, 1049 (4th Cir. 1997). The Board has held that

constructive discharge may also be proved with evidence that the

employee faced a "Hobson’s Choice" between continued employment

and "abandon[ing] his or her [statutory] rights." Intercon I (Zercom),

333 N.L.R.B. No. 30, 2001 WL 408748 *1 (2001). 

In this case the Board found that Neal "quit after being confronted

with a [Hobson’s] choice between resignation or continued employment conditioned on relinquishment of statutory rights." The evidence

in the record, however, does not support this conclusion.4 Despite the

suggestion to Neal that he would be promoted to route salesman only

if he "would leave the union alone," there was never any suggestion

that Neal’s continued employment as a depot loader was conditioned

on relinquishment of his statutory rights. No one from Earthgrains

management ever threatened Neal with discharge or intimated that

Neal’s job as a depot loader was in danger because of his union activities. To the contrary, Neal’s own testimony supports only the conclusion that he resigned because of rumors that his job would be

eliminated due to some further restructuring. He has made no suggestion that the rumors about the elimination of his job were in any way

4Because we conclude that the record evidence does not support a finding that Neal faced an unlawful "Hobson’s Choice," we need not reach

the issue, raised by Earthgrains, of whether the Board’s "Hobson’s

Choice" precedent is consistent with the NLRA. 

SARA LEE BAKERY GROUP v. NLRB 13
directed at him or, indeed, that the rumors were even circulated by

management. In short, there is simply no basis for finding that Neal

faced a Hobson’s Choice of quitting his depot loader job or relinquishing his statutory rights. 

Thus, while we refuse to enforce any remedy based on a finding

that Neal was constructively discharged, we conclude that Neal nevertheless is entitled to a remedy by reason of Earthgrains’ refusal to promote him to the route salesman position. Accordingly, we will grant

the Board’s application to enforce its order insofar as it requires

Earthgrains to offer Neal the position of route salesman or a "substantially equivalent position" if that position no longer exists. Any backpay remedy would accordingly pay Neal the difference between what

he would have made as a route sales representative and what he actually made as a depot loader and at whatever jobs he held after his resignation, covering a period commencing with the date he was first

denied a route and ending with the date of offer of reinstatement.

Finally, the "Notice to Employees" provided for in the Board’s order

would have to be modified to read: "We will offer immediate and full

reinstatement to Thomas Neal to a route sales representative job, and

we will make Neal whole for all losses because of our unlawful

refusal to grant his request for a route sales representative job." 

IV

In sum, we grant Earthgrains’ petition for review insofar as it

relates to the Board’s accretion of former CooperSmith employees at

Meridian, Laurel, and Hattiesburg. We also grant its petition insofar

as it challenges the Board’s finding that Earthgrains constructively

discharged Neal. In all other respects, we deny Earthgrains’ petition.

Correspondingly, we grant the Board’s cross-application for enforcement of its order as it applies at Columbus, and we grant its crossapplication for enforcement of its order with respect to Earthgrains’s

denial of Neal’s promotion to a route sales representative. In all other

respects, we deny enforcement of the Board’s order. 

IT IS SO ORDERED

LUTTIG, Circuit Judge, concurring in part and dissenting in part: 

The majority concludes that the Board failed to properly apply its

precedents regarding whether a company’s employees at a "new facil14 SARA LEE BAKERY GROUP v. NLRB
ity" must be regarded as a separate bargaining unit, and, "for this reason alone," it denies enforcement to the Board’s finding that

Earthgrains committed an unfair labor practice by refusing to recognize the union at the consolidated facilities in Meridian, Laurel, and

Hattiesburg. See ante at 8. I believe that this conclusion is based on

a misreading of the Board’s previous decisions and a misunderstanding of this court’s authority to review decisions of the Board. Futhermore, I cannot agree with the majority’s holding that the Board

"could not" have concluded that the former CooperSmith employees

at these three consolidated facilities satisfied the Board’s standard

announced in Safeway Stores, 256 N.L.R.B. 918 (1981), for accretion

into union-represented bargaining units. The majority’s analysis blurs

together and confuses two distinct issues presented in this case: first,

whether the former Earthgrains employees in the consolidated units

must be treated as separate bargaining units, apart from the unionized

multi-facility bargaining units that had been established preconsolidation, and second, whether the former CooperSmith employees in those consolidated facilities may be accreted to those bargaining units. For these reasons, I dissent from Part II of the majority’s

opinion, and would enforce the portion of the Board’s order requiring

Earthgrains to recognize the union at all four of the consolidated facilities. 

I.

The majority does not accurately describe the bargaining units and

labor situation at Earthgrains. Before its acquisition of CooperSmith,

Earthgrains was a party to four different collective bargaining agreements with the Bakery, Confectionary, and Tobacco Workers International Union, Local 149 ("the Union"), each covering a separate

"bargaining unit" of Earthgrains employees. One of these collective

bargaining agreements covered all production employees at Earthgrains’ bakery in Meridian, Mississippi. The other three agreements

covered delivery and sales employees, who worked among Earthgrains’ nineteen different distribution facilities throughout the state.

These three agreements were known as the "Meridian agreement," the

"Gulfport agreement," and "Jackson agreement."1

1The Meridian bargaining unit comprised sales employees in: Meridian

(7), Columbus (5), Tupelo (4), Forest (5), Greenville (2), Kosciusko (5),

SARA LEE BAKERY GROUP v. NLRB 15
After the acquisition of CooperSmith, a non-union competitor,2

Earthgrains consolidated operations in each city that had both an

Earthgrains and CooperSmith distribution facility. One facility would

be closed, and the remaining facility was viewed as either an "Earthgrains" or a "CooperSmith" operation, depending on which company

had been dominant pre-consolidation in the relevant geographic area.

Four of the consolidated facilities, located in Meridian, Laurel, Hattiesburg, and Columbus, were deemed continuing CooperSmith operations, because CooperSmith had the dominant market share in those

localities.3 In Meridian, Laurel, and Hattiesburg, the former Earthgrains facility was physically closed and the CooperSmith facility was

used. In Columbus, the old Earthgrains facility was used and the

CooperSmith facility closed. These consolidated facilities employed

both former CooperSmith (non-union) employees and former Earthgrains (union) employees.4

Vicksburg (1), Philadelphia (5), Grenada (2), Jackson (12), Magee (2),

and Yazoo City (1). The Gulfport bargaining unit covered workers in:

Laurel (4), Hattiesburg (6), Brookhaven (2), Picayune (1), Lucedale (1),

Gulfport (11), and Pascagoula (5). Finally, the Jackson bargaining unit

covered a portion of the sales employees in Jackson, who previously

worked for Hardins Bakery. When Earthgrains acquired Hardins Bakery

in 1986, the former Hardins Bakery workers continued working for

Earthgrains under their extant collective bargaining agreement (now

known as the "Jackson agreement"), which Earthgrains assumed, while

Earthgrains’ other employees at the Jackson facility were covered by the

"Meridian agreement." 

2All of CooperSmith’s employees, at the time of acquisition, were nonunion. J.A. 714. 

3The other three consolidated facilities (in Jackson, Philadelphia, and

Forest) were viewed as continuing Earthgrains operations, because

Earthgrains had been dominant in those geographic regions. Earthgrains

continued to apply the existing collective bargaining agreements to the

workers in those facilities, including the former CooperSmith employees

who transferred in. 

4Of the Meridian facility’s thirteen consolidated sales and delivery

employees, eleven were former CooperSmith employees and two were

from Earthgrains. In Laurel, eight came from CooperSmith and one from

Earthgrains. In Hattiesburg, ten previously worked for CooperSmith and

five for Earthgrains. In Columbus, three were from CooperSmith and

four from Earthgrains. 

16 SARA LEE BAKERY GROUP v. NLRB
Earthgrains did not recognize the union of the former Earthgrains

employees at the consolidated facilities in Meridian, Laurel, Hattiesburg, and Columbus, even though these employees, while they worked

in the former Earthgrains facility, had been covered by either the

Meridian or Gulfport collective bargaining agreement.

5

 The National

Labor Relations Board found this to be an unfair labor practice, ruling

that all of the employees at the consolidated facilities in Meridian and

Columbus were included in the Meridian collective bargaining agreement, and that the Laurel and Hattiesburg employees were covered by

the Gulfport agreement. J.A. 478; 485. 

II.

The Board rejected Earthgrains’ argument that the workers at the

consolidated facilities in Meridian, Laurel, and Hattiesburg should be

regarded as separate bargaining units, outside the scope of the Meridian and Gulfport collective bargaining agreements, holding that Earthgrains bore the burden of proving that the consolidation with

CooperSmith altered the existing bargaining units to the point that

they were no longer appropriate, and that Earthgrains failed to show

that the consolidation had affected the appropriateness of the existing

bargaining units.6 J.A. 478; 485. Nowhere does the majority claim

that the Board’s refusal to regard the consolidated facilities at Meridian, Laurel, and Hattiesburg as separate bargaining units is contrary

to, or an unreasonable interpretation of, the National Labor Relations

Act. Rather, the only apparent basis for the majority’s decision to

deny enforcement to this portion of the Board’s order is that the

Board violated the Administrative Procedure Act by failing "to apply

5Earthgrains’ workers in the Meridian and Columbus facilities had

been covered by the Meridian agreement; Earthgrains’ workers in the

Laurel and Hattiesburg facilities had been covered by the Gulfport agreement. 

6The Board specifically relied on the findings in the record that Earthgrains "continues to produce and distribute bakery products without substantial changes in operations; employees from the historically

represented units comprise a majority in each overall expanded unit; no

other labor organizations represented the CooperSmith employees; and

those employees share a community of interests with the previously represented employees in the consolidated operations." J.A. 478. 

SARA LEE BAKERY GROUP v. NLRB 17
in fact the clearly understood legal standards that it enunciates in principle." Allentown Mack v. NLRB, 522 U.S. 359, 376 (1998). The

majority characterizes the Board’s decisions in ATS Acquisition, 321

N.L.R.B. 712 (1996), and Gitano Groups, Inc., 308 N.L.R.B. 1172

(1992), as establishing a "presumption" that "employees at [a] new

facility" are treated as a separate bargaining unit. 

Those cases hold no such thing, and the Board has not violated

principles of reasoned decisionmaking by arbitrarily declining to

apply its previously-announced standards. In Gitano, the Board held

that when an employer "transfers a portion of its employees at one

location to a new location," the unit at the new facility is presumptively a separate unit. Id. at 1175 (emphasis added). If that presumption is not rebutted, a majority test determines whether the employer

must recognize the union at the new facility. See id. at 1175 ("If a

majority of the employees in the unit at the new facility are transferees from the original bargaining unit, we will presume that those

employees continue to support the union and find that the employer

is obligated to recognize and bargain with the union . . ."). The majority appears to believe (although it does not explain why) that the

Gitano presumption should apply because the union employees in

Meridian, Laurel, and Hattiesburg were physically relocated to the

established CooperSmith facilities. When Earthgrains consolidated

operations in Meridian, Laurel, and Hattiesburg, however, it did not

"transfer a portion of its employees at one location to a new location," rather, it relocated and consolidated an entire facility, transferring all (not a portion) of its remaining employees at that old facility

to the new location. Although the transferred employees were a "portion" of their overall bargaining unit (the Gulfport bargaining unit for

the Laurel and Hattiesburg employees, and the Meridian bargaining

unit for the workers in Meridian), they did not constitute a "portion"

of Earthgrains’ employees at their original locations in Meridian,

Laurel, or Hattiesburg, as required for the Gitano presumption to

apply. 

In Gitano, as well as in the Board cases relied upon by Earthgrains

in which the Board applied the Gitano presumption, a portion of

unionized employees remained at the original facility while another

portion were transferred to a new location. See U.S. Tsubaki, 331

NLRB No. 47 (2000); ATS Acquisition Corp., Inc., 321 NLRB 712

18 SARA LEE BAKERY GROUP v. NLRB
(1996); Ryder Truck Rental, Inc., 318 NLRB 1092; Armco Steel Co.,

312 NLRB 257 (1993). The Board has never applied the Gitano presumption when an entire facility is relocated or consolidated, and the

language of Gitano does not require such a result. Accordingly, it was

permissible for the Board to hold that the employees at the consolidated facilities who were transferred from former Earthgrains facilities remained part of the established bargaining units and retained

their rights to union representation. 

Oddly enough, the majority’s opinion, while faulting the Board for

failing to presume that all the employees at the consolidated facilities,

whether former Earthgrains or former CooperSmith employees, are

separate from the existing Earthgrains bargaining units, only denies

union representation to the former CooperSmith employees at those

facilities. See ante at 10-11 ("[W]e conclude that the Board, in accreting the CooperSmith employees at the Meridian, Laurel, and Hattiesburg facilities into two Earthgrains bargaining units, failed to follow

its own standards for doing so. Therefore, we decline to enforce the

Board’s order directing Earthgrains to recognize that those employees

are represented by the Union." (emphasis added)). The majority opinion apparently leaves intact the Board’s order requiring Earthgrains

to recognize the union as the representative of the former Earthgrains

employees at the three consolidated units. No election has been held

among these employees, however, so the only basis for continued

union representation is if these employees are somehow still part of

the existing, multi-facility, union-represented Earthgrains bargaining

units. But such would be inconsistent with the majority’s insistence

that the Board should have applied Gitano’s presumption of separate

bargaining units. Perhaps the majority assumes that the union successfully rebutted the Gitano presumption with respect to these former

Earthgrains employees at the consolidated facilities, but there certainly is no discussion of this. And it would be most inappropriate for

the majority to make such a tacit assumption without citing to any

evidence in the record and without giving Earthgrains an opportunity

to show, on remand to the Board, that the Gitano presumption has not

been rebutted. So it appears that the outcome reached by the majority,

which allows the former Earthgrains employees in the consolidated

facilities to retain their union representation, is irreconcilable with its

discussion of Gitano (but consistent with my view about the scope of

Gitano, which, for the reasons I discussed above, does not apply to

SARA LEE BAKERY GROUP v. NLRB 19
this case). I have no quarrel with the majority’s ultimate conclusion

that the union still represents the employees who were transferred

from the former Earthgrains facilities in Meridian, Laurel, and Hattiesburg, but I cannot understand its rationale. 

III.

As to the former CooperSmith employees now working in the consolidated facilities, the issue is whether they can properly be accreted

to the bargaining units consisting of unionized Earthgrains employees. Board precedent permits employees to be accreted to a preexisting bargaining unit when the employees have "little or no separate

group identity and thus cannot be considered to be a separate appropriate unit" and the community of interest between the employees and

the existing unit is "overwhelming." Safeway Stores, 256 NLRB at

918. See also Staten Island University Hospital v. National Labor

Relations Board, 24 F.3d 450, 455 (2d Cir. 1994) ("Accretion

requires an overwhelming community of interests between a smaller

group of employees and a larger unit . . . [and] applies only if one

group of employees has no identity distinct from the other."). 

In making its finding of accretion, the Board stated, in conclusory

fashion, that the consolidated CooperSmith employees "share a community of interests" with the unionized Earthgrains employees. J.A.

478. As the majority notes, the Board did not address whether this

community of interests was "overwhelming," nor did it discuss the

"little or no separate group identity" requirement of the Safeway

Stores test. Although I agree with the majority that the Board should

have more carefully applied its announced accretion standards to the

facts of this case, rather than glossing over the accretion issue as it

did,7 I do not think it appropriate to deny enforcement of this part of

7This is especially true in light of our court’s observation that "courts

have been particularly vigilant in assuring that the Board observes in

practice the strict standards it has adopted for accretion orders." Baltimore Sun Co. v. NLRB, 257 F.3d 419, 430 (4th Cir. 2001) (refusing to

enforce an accretion order by the Board when it failed to consider the

"little or no separate group identity" prong of the Safeway Stores standard). See also Universal Security Investments, Inc. v. National Labor

Relations Board, 649 F.2d 247, 253 (4th Cir. 1981) ("In making its

20 SARA LEE BAKERY GROUP v. NLRB
order because the record in this case contains substantial evidence that

would have allowed the Board to find that the accreted CooperSmith

employees have "little or no separate group identity" from, as well as

an "overwhelming community of interest" with, the unionized Earthgrains employees. 

The majority gives four reasons to support its conclusion that the

Board’s accretion order fails the Safeway Stores test. None is persuasive and only one is even relevant. The majority is mistaken to rely

on the pre-consolidation attributes of the former CooperSmith

employees, such as their distinct geographical employment locations

and unique working conditions. These have no bearing on whether the

proper subjects of the accretion inquiry — whether, postconsolidation, these employees have "little or no separate group identity" from, as well as an "overwhelming community of interest" with,

the unionized Earthgrains employees. The majority’s desire to ignore

the post-consolidation characteristics of the former CooperSmith

employees is understandable, because none of them could possibly

support its refusal to enforce the Board’s accretion order. The record

reveals that the former CooperSmith employees are in no way cordoned off from the unionized Earthgrains employees; quite the contrary, they are working side by side, in the same facilities, performing

the same tasks in delivering baked goods. 

The majority also makes much of the fact that former CooperSmith

employees outnumber the unionized Earthgrains employees at the

three consolidated facilities in dispute, and claims that "[t]hese data

alone suggest that the former CooperSmith employees might successfully assert their historically separate interests through a vote, if given

the chance." Ante at 10. The Board’s order, however, accretes the former CooperSmith employees to bargaining units that encompass multiple Earthgrains facilities, and the former CooperSmith employees do

[accretion] determination the Board must closely analyze whether the

new and old employees truly share a ‘community of interest.’") (emphasis added). Because accretion forecloses the accreted employees’ basic

right to select their bargaining representative, the Board should not

lightly impose a union on employees who have never indicated a preference for such representation. 

SARA LEE BAKERY GROUP v. NLRB 21
not constitute such a sizable portion of the Meridian or Gulfport bargaining units as to cast doubt on the union’s majority status among

the accreted units. Moreover, the high ratio of former CooperSmith

employees to unionized Earthgrains employees does not, without further analysis, have any direct relevance to the two prongs of the

Safeway Stores test. Large numbers of non-union employees may

nevertheless have "little or no separate group identity" from, as well

as an "overwhelming community of interest" with, a small number of

unionized employees. 

The majority does point to one relevant factor that bears on

whether the "overwhelming community of interest" prong has been

satisfied, and that is the lack of prior union representation among the

accreted CooperSmith employees. See National Labor Relations

Board v. Lundy Packing, 68 F.3d 1577, 1580 (4th Cir. 1995) (listing

the "history of collective bargaining," "desires of the affected employees" and "extent of union organization" among the twelve factors the

Board has traditionally applied when applying the "community of

interest" test). However, many other factors traditionally considered

by the Board in making "community of interest" determinations cut

in the opposite direction and support the Board’s finding of accretion,

especially such factors as the "similarity in the kind of work performed," "similarity in the qualifications, skills, and training of the

employees," "geographic proximity," and "continuity or integration of

production processes." Id. Given the facts of this case, the majority’s

ruling that the Board’s standard for accretion could not possibly be

satisfied, without even remanding to give the Board an opportunity to

apply the Safeway Stores standard in the first instance, is indefensible.

In sum, it is clear from the record that the employees in the consolidated facilities, whether originally from CooperSmith or Earthgrains,

are working as part of a unified operation, and that the Board’s accretion order was proper, notwithstanding its failure to apply the Safeway

Stores standard. Although I conclude that remanding to the Board to

apply the Safeway Stores standard, given the facts of this case, would

be a needless formality, the majority should at least, if it disagrees,

remand with instructions to the Board to allow it an opportunity to

apply the proper legal standard. 

22 SARA LEE BAKERY GROUP v. NLRB
IV.

I concur with the majority that the Board’s finding of constructive

discharge regarding Thomas Neal is not supported by substantial evidence, although, like the majority, I am satisfied that substantial evidence supports the Board’s finding that Earthgrains violated section

8(a)(1) and (3) of the National Labor Relations Act by refusing to

promote Neal to route sales representative and by telling him that his

filing of a grievance kept him from getting that promotion. 

Earthgrains argues that the Board’s "Hobson’s Choice" theory of

constructive discharge is an "arbitrary and irrational" interpretation of

the NLRA. I think it important to emphasize, however, that we need

not reach the issue of whether the Board’s use of the "Hobson’s

Choice" theory of constructive discharge is permissible under the

National Labor Relations Act, because the record lacks substantial

evidence to support a finding that Earthgrains constructively discharged Neal, even if we assume, arguendo, that the Board’s articulated "Hobson’s choice" standard is a permissible interpretation of the

statute. 

Willis’ suggestion to Neal that he would have received a promotion

had he not filed a grievance through the union did not condition

Neal’s continued employment as a depot loader on the relinquishment of statutory rights. Rather, Willis’ statement, at most, conditioned Neal’s advancement within the company on his abandonment

of protected activity. An employer’s mere conditioning of some benefit or condition of employment on the relinquishment of statutory

rights is not enough, under the Hobson’s choice theory, to create a

"constructive discharge" if the employee later resigns. If it were,

every violation of section 8(a)(3), which prohibits "discrimination in

regard to . . . any term or condition of employment to encourage or

discourage membership in any labor organization" would present a

"Hobson’s choice" to employees that would allow them to quit and

later claim reinstatement and backpay. The Board has never held that

the doctrine of "constructive discharge" is this broad and did not so

hold in this case.8

8We need not decide, in this case, whether the NLRA would permit the

Board to explicitly adopt, in its caselaw, a policy that treats any

SARA LEE BAKERY GROUP v. NLRB 23
With these observations, I concur in Parts I and III and dissent

from Part II of the majority’s opinion. 

employee resignation in response to a section 8(a)(3) unfair labor practice as a constructive discharge that would entitle the employee to reinstatement and backpay. It should be noted, however, that the Board’s

remedial powers are confined to make-whole remedies, not punitive

sanctions, see NLRB v. Pepsi Cola Bottling Co. of Fayetteville, Inc., 258

F.3d 305, 314 (4th Cir. 2001), and that backpay awards are contingent

upon reasonable efforts by the victims of unfair labor practices to mitigate their damages, see Coronet Foods, Inc. v. National Labor Relations

Board, 158 F.3d 782, 800 (4th Cir. 1998). Any theory of constructive

discharge adopted by the Board must comport with these principles. 

24 SARA LEE BAKERY GROUP v. NLRB