Innovative Communications Corporation v. National Labor Relations Board

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
Nos. 01-1786, 01-2205
__________
INNOVATIVE COMMUNICATIONS
CORPORATION; VIRGIN ISLANDS
TELEPHONE COMPANY and ST.
CROIX CABLE T.V.,
Petitio
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent
_________________
NATIONAL LABOR RELATIONS BOARD,
Petitione
v.
INNOVATIVE COMMUNICATIONS
CORPORATION; VIRGIN ISLANDS
TELEPHONE COMPANY and ST.
CROIX CABLE T.V.,
Respondents
___________
On Petitions for Review/Enforcement
of a Decision and Order of the
National Labor Relations Board
(NLRB Docket No. 24-CA-8472)
__________
Argued April 22, 2002
Before: SCIRICA, RENDELL
and NOONAN*, Circuit Judges,
(Filed June 13, 2002)
Anthony R. Comden
Jeffrey J. Fraser [ARGUED]
Varnum, Riddering, Schmidt & Howlett
P. O. Box 352
Bridgewater Place
Grand Rapids, MI 49501
Counsel for Petitioner (01-1786)/
Respondent (01-2205)
Innovative Communications
Corporation; Virgin Islands
Telephone Company and St.
Croix Cable T.V.

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Aileen A. Armstrong
Joan Hoyte [ARGUED]
Margaret A. Gaines
Darlene Haas
National Labor Relations Board
1099 14th Street, N.W.
Washington, DC 20570-0001
Counsel for Respondent (01-1786)/
Petitioner (01-2205)
National Labor Relations Board
____________________________
* Honorable John T. Noonan, Jr., Circuit Judge of the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
__________
OPINION
__________
RENDELL, Circuit Judge.
Companies iCC, VitelCo, and St. Croix Cable petition for review of the final
order of the National Labor Relations Board ("NLRB" or "Board") that found that they
had violated sections 8(a)(1), (2), (3) and (5) of the National Labor Relations Act ("the
Act"). The Board cross-petitions for enforcement of its order.
Whether Petitioners violated the Act turns on whether there was an "accretion" of
St. Croix Cable employees into the VitelCo/United Steelworkers of America ("USW")
bargaining unit. Accretion is "simply the addition of a relatively small group of
employees to an existing unit where these additional employees share a sufficient
community of interest with the unit employees and have no separate identity." E.g.,
American Med. Response, Inc., 335 N.L.R.B. No. 90 (2001).
Here, the ALJ concluded that there was no accretion, so the Act was violated.
The NLRB affirmed the ALJ’s findings and rulings, and adopted the ALJ’s
recommended order with a few modifications. For the reasons below, we conclude that
substantial evidence supports the finding that there was no accretion as of August 30,
1999, and the conclusion that Petitioners thus violated the Act, and we will affirm the
Board’s decision in that respect.
However, because a later accretion may have taken place, portions of the order
may no longer be appropriate. Accordingly, we will remand to the NLRB for it to
determine if, and potentially when, accretion later occurred and to craft an appropriate
remedy in light of its determination. If no accretion has taken place, we will enforce the
order in full.
I.
Our jurisdiction is clear under 10(e) and 10(f) of the Act. 29 U.S.C. 160(e), (f).
We apply a "substantial evidence" standard to "the Board’s factual determinations and
reasonable inferences derived from factual determinations." Citizens Pub’g & Printing
Co. v. N.L.R.B., 263 F.3d 224, 232 (3d Cir. 2001); 29 U.S.C. 160(e). Our review of
the Board’s legal analysis is plenary, but we defer to its interpretation of the Act.
Citizens Pub’g & Printing, 263 F.3d at 232. Although the facts here are stipulated, we
will review the application of accretion policy to these facts for substantial evidence.
See, e.g., N.L.R.B. v. Security-Columbian Banknote Co., 541 F.2d 135, 140-41 (3d Cir.
1976).
II.
The parent company iCC has five subsidiaries, including VitelCo and St. Croix

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Cable. Although VitelCo, the largest subsidiary, had been party to a collective
bargaining agreement with the USW since 1972, the employees of all of the other
subsidiaries were unrepresented through at least September 22, 1999. A56.
In 1998, VitelCo decided to consolidate all of the job functions of the various
subsidiaries, so began negotiating with the USW to do so. These confidential
negotiations eventually resulted in agreement between VitelCo and USW on all of the
issues on September 22, 1999. On September 30, 1999, VitelCo and the USW entered
into a collective bargaining agreement that incorporated these changes and that became
effective on October 1, 1999. A57-58.
On September 22, 1999 before the VitelCo/USW agreement became effective
the St. Croix Cable employees voted unanimously to be represented by Our Virgin
Islands Labor Union ("OVILU"). A56. The alleged violations occurred after this
election, when petitioners treated USW as the representative of St. Croix Cable
employees and applied the VitelCo/USW collective bargaining agreement to them.
III.
Petitioners argue that the St. Croix Cable employees were accreted into the
USW/VitelCo bargaining unit, that the Board’s remedy exceeded its authority, and that
the Board’s order is moot because of its later recognition that accretion occurred.
1. Accretion
The factors that must be weighed when deciding whether there has been an
accretion include:
integration of operations, centralization of managerial and
administrative control, geographic proximity, similarity of
working conditions, skills and functions, common control of
labor relations, collective-bargaining history and interchange
of employees
GHR Energy Corp., 294 N.L.R.B. 1011, 1051 (1989). The Board has said that it follows
a "restrictive policy in finding accretion because it forecloses the employees’ right to
select their bargaining representative." Id. at 1016.
Whether accretion has occurred is evaluated on the facts in existence on the date
the union demands recognition. E.g., id. at 1052 & n.37. No particular form is required
for a demand for recognition; the company just needs to be reasonably informed that the
union seeks to represent the company’s employees. E.g., Yolo Transp., 286 N.L.R.B.
1087, 1087 n.2 (1987). Accordingly, the relevant date is when USW claimed to
represent the St. Croix Cable employees, which was the date when the USW asked to
intervene in the election for the representative of St. Croix Cable August 30, 1999
or, at the latest, September 22, 1999, when VitelCo and USW reached an agreement
about the consolidation of job functions. A136. Both dates precede the planned
consolidation of functions.
Substantial evidence in the record supports the conclusion that, as of either of
those dates, no accretion had taken place. Not only had there been no corporate merger
of VitelCo and St. Croix Cable, but also the employees of these two subsidiaries worked
at separate facilities. VitelCo and St. Croix Cable provided services as to different
products telephone and cable TV, respectively and these services were not
integrated. In order to consolidate job functions, "cross-training of all employees to
perform telephone, cable, cellular, and all other communication functions" would be
required, A57, which indicates that the pre-consolidation job functions were separate.
Finally, St. Croix Cable had its own general manager, and, although the parties agree that
a human resources representative visited St. Croix Cable, there was no evidence of
common control of labor relations. In sum, the facts stipulated indicate that there was a
planned consolidation, but that it had not taken place as of the relevant date.
2. Remedy
The ALJ had recommended an order restoring the status quo, but because some of
the unilateral changes helped and some hurt the employees, the NLRB modified the order
so that restoration was conditioned on the "affirmative desires of the [employees] as
expressed through their bargaining representative." A5.

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Board policy is clear that when some acts are to the benefit and some to the
detriment of the affected employees an order like that here is appropriate. See Children’s
Hosp. of San Francisco, 312 N.L.R.B. 920, 931 (1993); see also N.L.R.B. v. Rockwood
Energy & Mineral Corp., 942 F.2d 169 (3d Cir. 1991) (enforcing an order that restored
terms and conditions but did not order respondents to undo wage increases or benefits
without request from the union).
Our review of the Board’s choice of remedy is limited to asking whether a remedy
goes beyond the scope of the Board’s authority. See e.g., Sure-Tan, Inc. v. N.L.R.B.,
467 U.S. 883, 899 (1984). The Board may issue orders that "effectuate the policies" of
the Act, 29 U.S.C. 160(c), which "encompasses the requirement that a proposed
remedy be tailored to the unfair labor practice it is intended to redress," but gives the
Board broad discretion. Id. at 900. We do not find that this remedy exceeded this broad
discretion.
3. Mootness
Finally, petitioners argue that the part of the order that commands iCC to
recognize OVILU is moot because "[t]he Board has conceded that the St. Croix Cable
employees were accreted into the larger VitelCo unit on November 21, 2000, the date
that all employees were moved into one facility." Petitioners’ Reply Brief on Appeal, at
5. The changed circumstance that would, assertedly, render this relief moot is either an
intervening adjudication or the fact of the November 2000 accretion.
We need not address the effect an intervening adjudication might have here
because Petitioners have provided no evidence that there has been one. The documents
they submitted indicate that the Board’s General Counsel and Regional Director
maintained in related proceedings before the Board that accretion occurred on November
21, 2000. However, these documents show only an exercise of the prosecutorial
function, not a finding of accretion by the Board, as Petitioners suggest.
Nonetheless, we cannot ignore the asserted fact that an accretion did occur in
November 2000, potentially making a recognition and bargaining order inappropriate at
this time. Not only has Board’s counsel taken the position in other proceedings that
accretion occurred in November 2000, but also Board’s counsel indicated at oral
argument in this case that "some accretion" later occurred and that whether the remedy
was appropriate would come to light in compliance proceedings.
The Board ordered many types of relief. It ordered Petitioners to cease and desist
from giving assistance and support to the USW, recognizing or bargaining with the USW
as the representative of the St. Croix Cable employees, entering into or giving effect to a
collective bargaining agreement with the USW that covered the St. Croix Cable
employees, encouraging membership in the USW or discouraging membership in
OVILU by discriminating with respect to the terms of employment, unilaterally changing
employment conditions in St. Croix Cable, or otherwise interfering with the exercise of
these employees’ rights under the Act. It also ordered that Petitioners withdraw and
withhold recognition of the USW as to the St. Croix Cable employees, recognize and
bargain with OVILU as their representative, and reimburse these employees for any
money withheld pursuant to the collective bargaining agreement with the USW. Finally,
as discussed above, Petitioners were ordered to revoke the changes in the terms and
conditions of employment implemented on October 1, 1999 (if the St. Croix Cable
employees, through their OVILU representative, so desired) and to make employees
whole for any losses suffered because of these changes. While some of the damages
ordered may continue to be appropriate, many of the other types of remedies may need to
be modified in light of a later accretion, if in fact, accretion did occur.
For the reasons above, we will affirm the Board’s finding that accretion had not
occurred as of August 30, 1999, and that Petitioners thus violated the Act. However, the
case will be remanded to the Board for it to determine if an accretion has since occurred.
If not, the order will be enforced in full, and the petition for review will be denied. If so
the Board should craft the remedies appropriate in such changed circumstances. TO THE CLERK OF
Please file the foregoing Not Precedential Opinion.
/s/ Majorie O. Rendell
Circuit Judge

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