NLRB v. Superior Protection

United States Court of Appeals
Fifth Circuit
F I L E D
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 com-
pelling respondent Superior Protection, Inc.
(“Superior”), to bargain with United Govern-
ment 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 improp-
erly accreted (i.e., added) employees hired
after the representation election into the certi-
fied bargaining unit without the benefit of an
election, thus improperly assigning to the
accreted employees the certified unit’s choice
of bargaining representative.

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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 employ-
ees as a consequence of the 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 represen-
tation petition with the Board seeking certifi-
cation as the collective-bargaining representa-
tive 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 appropri-
ate 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 employ-
ees was conducted by the Regional Director 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 re-
maining challenged ballot, which had been cast
by unit employee Kevin Trotter, was determi-
native. 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 con-
stitute a unit appropriate for the purpose of col-
lective bargaining within the meaning 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, em-
ployees on temporary assignment, professional
employees, managers and supervisors as de-
fined by the Act.

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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 consoli-
dated proceeding before an administrative law
judge (“ALJ”). In August 2002, the ALJ
sustained the union’s unfair labor practices
complaint, finding Superior’s proffered rea-
sons for discharging Trotter to be “pure sub-
terfuge, masking the true motive of retaliation
for Trotter’s testimony at the Board proceed-
ing 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 Re-
gional 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, the Regional Director certified the union
as the exclusive collective-bargaining represen-
tative 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 re-
ceived 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 Coun-
sel. 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 appro-
priate as an original matter, it was no longer
appropriate because (after the Regional Direc-
tor’s initial unit determination) Superior had
entered into a second contract with GSA to
provide security officers at eight additional
federal facilities within 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 exist-
ing unit without an election, in violation of
Board policy.

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4
In August 2004, the Board granted sum-
mary judgment in favor of the General Coun-
sel, 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 argu-
ments regarding the propriety of the three-
county 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 chal-
lenge/unfair labor practices proceeding. The
Board similarly rejected on procedural grounds
Superior’s challenge to the Regional Direc-
tor’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 facili-
ties 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 indi-
cation that the Union was seeking to accrete
these new employees to the existing unit;
indeed, the Board pointed to a separate repre-
sentation 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
of the Board’s unit determination, especially in
light of Superior’s contention that the new
employees outnumber the existing unit em-
ployees and of the Union’s apparent position
(gauged from the separate representation
petition filed by the Union) that the new em-
ployees constitute a separate appropriate bar-
gaining 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 iden-
tity. 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 re-
vealed that the new employees at the addi-
tional 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 demon-
strating 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 Supe-
rior to bargain with and furnish information to
the Union.
II.
Having abandoned a majority of the argu-
ments 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 Direc-
tor took no action on this separate representation
petition during the pendency of the instant repre-
sentation 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...)

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5
attacks the Board’s order on a single legal
ground: It contends that, because the certified
bargaining unit includes within its scope em-
ployees hired after the representation election
to work at additional federal facilities, the
Board improperly accreted these new employ-
ees to 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 employ-
ees 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. Motor-
ola, 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
share a sufficient community of interest with
existing unit employees, are added to an exist-
ing 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 bar-
gaining 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 rou-
tine 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 em-
ployee self-determination reflected in § 7 of
the NLRA, which provides:
Employees shall have the right to self-orga-
nization, to form, join, or assist labor or-
ganizations, 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 un-
ion-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 rise
to a claim of accretion involve an employer with a
preexisting bargaining unit that acquires an addi-
tional 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.”).

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6
such activities . . . .
29 U.S.C. § 157.6 Thus, although § 7 pro-
vides employees with the right to bargain
collectively through “representatives of their
own choosing” and “the right to refrain from”
collective bargaining,7 the 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 em-
ployee 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.”
Baltimore Sun, 257 F.3d at 427.8 Accord-
ingly, 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 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 represen-
tative. 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 self-
determination 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 Consoli-
dated 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 employ-
ees’ 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 bar-
gaining representative, the Board follows a re-
strictive 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 tra-
ditionally 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 representa-
tive 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 bar-
gaining unit will occur only in those extraordinary
cases in which the Board can be reasonably certain
(continued...)

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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 representa-
tion petition was pending before the Board,
the union filed a separate representation peti-
tion seeking to be certified as the exclusive
collective bargaining representative of the 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. (Em-
phasis added.)
Because the union has not sought to accrete
the new employees into the existing unit, Supe-
rior’s reliance on Renaissance Ctr. P’ship, 239
N.L.R.B. 1247 (1979), and evidence of an al-
leged merger between the two groups of
employees is particularly misplaced. In Re-
naissance, 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 indistin-
guishable. Here, however, the union is not
seeking to clarify the confines of the existing
unit by accreting new employees in light of
evidence of employee merger or consolidation,
but instead is seeking to treat the new employ-
ees 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 em-
ployees in the bargaining unit that they would
choose it.”). This test is substantially more strin-
gent 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 un-
der the circumstances.” Ochsner Clinic v. NLRB,
474 F.2d 206, 209 (5th Cir. 1973). In the accre-
tion 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...)

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8
contrary to 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 de-
scription includes 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 ap-
propriate unit and that they share an over-
whelming community of interest with the
preexisting unit.
To be sure, this case does present some cir-
cumstances that would militate in favor of a
finding of accretion by the BoardSSe.g., the
fact the new employees were acquired after the
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 propo-
sition that appears to present a nearly insur-
mountable 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 “accre-
tion would be inappropriate if the employees at
the additional facilities numerically over-
shadow 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 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 facilities in 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 exis-
tence 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 unrepre-
sented group sought to be accreted numerically
overshadows the existing unit, the board will not
accrete the larger number of unrepresented em-
ployees without giving them a chance to express
their representational desires.”).

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