the Baltimore Sun Company v. NATIONAL LABOR RELATIONS BOARD, No. 00-1493 

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 THE BALTIMORE SUN COMPANY,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, No. 00-1493  Respondent,
WASHINGTON-BALTIMORE NEWSPAPER
GUILD, LOCAL 32035, THE
NEWSPAPER GUILD-CWA,
Respondent-Intervenor. 
 NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
THE BALTIMORE SUN COMPANY, No. 00-1774  Respondent,
WASHINGTON-BALTIMORE NEWSPAPER
GUILD, LOCAL 32035, THE
NEWSPAPER GUILD-CWA,
Respondent-Intervenor. 
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board.
(5-CA-27814)
Argued: January 25, 2001
Decided: July 18, 2001

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Before NIEMEYER and KING, Circuit Judges, and
Gerald Bruce LEE, United States District Judge for the
Eastern District of Virginia, sitting by designation.
Petition for review granted and cross-application for enforcement
denied by published opinion. Judge Niemeyer wrote the opinion, in
which Judge Lee joined. Judge King wrote an opinion concurring in
part and dissenting in part.
COUNSEL
ARGUED: Jeremy Paul Sherman, SEYFARTH SHAW, Chicago,
Illinois, for Baltimore Sun. Steven B. Goldstein, NATIONAL
LABOR RELATIONS BOARD, Washington, D.C., for Board. Rob-
ert Edward Paul, ZWERDLING, PAUL, LEIBIG, KAHN, THOMP-
SON & WOLLY, P.C., Washington, D.C., for Intervenor. ON
BRIEF: Kristin E. Michaels, SEYFARTH SHAW, Chicago, Illinois,
for Baltimore Sun. Leonard R. Page, General Counsel, Aileen A.
Armstrong, Deputy Associate General Counsel, Julie B. Broido,
Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., for Board.
OPINION
NIEMEYER, Circuit Judge:
This case presents the important question of when the National
Labor Relations Board may "accrete" employees to a collective bar-
gaining unit by Board order in the absence of a representation elec-
tion.
After the Baltimore Sun Company refused to bargain with the
Washington-Baltimore Newspaper Guild over the terms and condi-
tions of employment for employees in the Company’s "SunSpot"
website department — contending that the employees had been
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improperly "accreted" to the bargaining unit — the National Labor
Relations Board found that the Company committed an unfair labor
practice and ordered it to bargain with the Union. The Company peti-
tions for review of that order, and the Board, supported by the Union
as intervenor, cross-petitions for enforcement of the order.
Because in this case the Board failed to follow its usually cautious
standard for bypassing a representation election and accreting
employees to a unit by Board order, we grant the Company’s petition
for review and deny the Board’s cross-petition for enforcement. Our
reasons follow.
I
The Baltimore Sun Company ("the Company") publishes and dis-
tributes a daily morning newspaper, The Sun, and a Sunday edition,
The Sunday Sun, which are circulated in the area around Baltimore,
Maryland. The Company also owns and operates several other busi-
nesses, including Alliance Media, a magazine publisher and distribu-
tor; Apartment Search, a service that introduces prospective tenants
to prospective landlords; and SunDial, an interactive service that pro-
vides news, advertisements, and other information over the telephone.
The Company operates from offices located throughout the Baltimore
metropolitan area, but its primary office is located in downtown Balti-
more.
For more than 50 years, the Washington-Baltimore Newspaper
Guild (the "Union") has served as the collective bargaining represen-
tative for all of the non-managerial news and editorial employees of
the Company. See In re A. S. Abell Co., 81 N.L.R.B. 82 (1949). Also,
employees in the mechanical and nonmechanical departments have
elected to be included in the Union’s bargaining unit, and the NLRB
has included the Company’s employees in the library and commercial
departments. In addition, in 1990 the parties by agreement added
employees in the SunDial department to the unit. Accordingly, the
Union represents a bargaining unit consisting of a wide variety of
positions within the Company’s newspaper operations. While the
efforts of these employees have focused historically on the production
of The Sun and The Sunday Sun, the employees have also had respon-
sibility for publishing other documents on a regular basis, such as a
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report on Baltimore elementary schools, a business almanac, a gar-
dening calendar, an outdoor guide, and educational materials. Other
employees of the Company are represented by other unions, and still
others are not represented by any union.
In June 1996, when the Company and the Union were completing
negotiations for a new collective bargaining agreement, to take effect
on June 23, 1996, they did not resolve whether employees developing
a website for the Company would be in the bargaining unit repre-
sented by the Union. At the time, the Company was in the preliminary
stages of developing the "SunSpot" website to provide, among other
services, an Internet conduit for articles originally published in The
Sun. When the Union sought information about the new SunSpot
department, the Company’s representatives stated that the website
was "experimental" and that the "target" for making the website oper-
ational was "sometime this year." The Company also indicated that
the new department’s staff — which at the time consisted of a "con-
tent packager," a "website production manager," a "Web sales man-
ager," and a secretary — might, within the near future, either expand
or contract. The Union expressed its desire to represent the SunSpot
employees, but the Company refused to agree. When the Company’s
representative stated during these negotiations that the Company’s
position was that SunSpot employees were not covered by the collec-
tive bargaining agreement, the Union representative responded, "I
understand."
The parties did not resolve the issue at that time, and the final pro-
posed collective bargaining agreement, which was provisionally rati-
fied on June 22, 1996, did not address whether SunSpot employees
were part of the bargaining unit covered by the agreement. Article I,
section 1.1 of the agreement recognizes the Union as "the exclusive
representative of the employees employed in job classifications cov-
ered by this Agreement." Section 1.2 states that the Union’s jurisdic-
tion "shall include new or additional work of a permanent nature in
departments covered by this Agreement and requiring the same or
similar skills for which bargaining unit employees are currently
employed." Section 1.8 lists the three departments — editorial and
news, commercial, and SunDial — covered by the agreement. In the
news and editorial departments, the Union is assigned approximately
150 reporters, 50 copy editors, and several other editors, photogra-
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phers, technicians, artists, writers, and clerks. The commercial depart-
ment includes advertising salespersons, research analysts, janitors,
carpenters, technicians, and various other personnel. But the SunSpot
department employees were neither expressly included in, nor
excluded from, the departments or job classifications outlined in the
collective bargaining agreement.
Following ratification of the collective bargaining agreement, the
Union and the Company continued negotiations over the status of the
SunSpot department employees. The Union reiterated its belief that
SunSpot employees should be included within the bargaining unit,
and the Company’s representatives continued to represent that the
SunSpot website was not yet up and running, but in any event, the
employees of the SunSpot department would not be within the
Union’s jurisdiction as outlined in the agreement.
In July 1996, the SunSpot website first became accessible on
the Internet to a limited degree, and by the end of September it was
fully and officially launched. The Company’s newspapers now adver-
tise SunSpot on the lower left-hand corner of each edition, providing
its worldwide Web address — "The Sun on the Internet:
http://www.sunspot.net" — and the site makes every Sun article
accessible to Web surfers. In addition to providing links to Sun arti-
cles, obituaries, classifieds, and services, the site, at least as originally
conceived, contained interactive games, an Internet soap opera, chat
rooms, and permanent reference information about the Baltimore
area.
The employees in the SunSpot department work in the Company’s
main office in downtown Baltimore, on the same floor as departments
containing several bargaining unit employees. In addition to three
supervisors — a sales manager, a Web community relations and con-
tent manager, and a Web production manager — the SunSpot depart-
ment had at the time of contract negotiations four nonsupervisory
employees. Tilthea Ransome, a confidential secretary, performs ordi-
nary secretarial functions, but also tracks website usage, types the text
of advertisements for the site, and archives Sun columns that appear
on the site. Web producer Angie Van Hey ensures that the daily feed
from the newspaper arrives properly, edits the articles for their entry
on the webpage, decides which Sun photographs will appear on the
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site, transfers the paper’s columns to the site, and formats files and
pictures for use on the site. Matthew Baize, the Web content pro-
ducer, updates sections of the site, helps tailor Web content to certain
advertisers, and designs the site’s appearance. Finally, Brian Burns is
a Web sales specialist who develops relationships with advertisers.
SunSpot department employees meet separately to decide their own
goals and budget, and they are provided a compensation package that
differs from the package offered to members of the bargaining unit.
In connection with the Union’s organizing efforts, employees in the
SunSpot department have apparently indicated that they do not wish
to be represented by the Union.
Because the Company and the Union were unable to agree on
whether the SunSpot department employees were part of the bargain-
ing unit represented by the Union, the Union filed a petition with the
Board on October 29, 1996, requesting that the bargaining unit be
"clarified" by the Board to include SunSpot department employees
without affording them an opportunity to make that decision through
a representation election — a process that the Board’s caselaw
describes as "accretion." The Company opposed the petition, arguing
(1) that it was untimely because it was filed after ratification of the
collective bargaining agreement, and (2) that accretion of the SunSpot
employees to the bargaining unit was improper because the SunSpot
department employees could be a separate appropriate unit and did
not possess the requisite "overwhelming community of interest" with
the employees of the Union’s bargaining unit to justify the inclusion
of the SunSpot employees without the benefit of a representation elec-
tion.
The NLRB’s Regional Director granted the Union’s petition. On
the timeliness issue, the Regional Director reasoned that although "the
Board generally declines to process a clarification petition during the
term of an existing agreement which clearly defines the unit," the
petition was timely because the Union never abandoned its position
during negotiations that SunSpot department employees should be
within the unit; the SunSpot department employees were not clearly
excluded by the collective bargaining agreement; and the SunSpot
website was not operational until after the collective bargaining
agreement had been signed. On the merits, the Regional Director
found that accretion was appropriate because the SunSpot department
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employees "share an overwhelming community of interest with the
represented employees and could not constitute a separate appropriate
unit." In addressing the merits, the Regional Director did note that the
hearing officer erred in excluding evidence of the SunSpot depart-
ment employees’ union sentiments, stating that it is the Board’s posi-
tion to permit consideration of "the desires of unrepresented
employees in determining whether to accrete them to an existing
unit." He concluded, however, that the error was not "prejudicial."
Without analysis, the Board denied the Company’s request for
review, explaining only that the Union’s petition was timely because
the SunSpot department "was not fully staffed and not fully opera-
tional until after the execution of a new contract." Member Hurtgen
dissented in part, noting that while he agreed that the petition was
timely, he would have reviewed the merits of the Regional Director’s
accretion decision.
To challenge the Board’s accretion determination, the Company
refused to bargain with the Union over the terms and conditions of
employment of SunSpot department employees. When the Board’s
General Counsel subsequently filed an unfair labor practice complaint
against the Company, the Board, noting that it had already resolved
the Company’s arguments in the clarification proceeding, entered
summary judgment against the Company, declaring that the Company
had committed an unfair labor practice, in violation of 29 U.S.C.
§§ 158(a)(1) and (5). The Board thus ordered the Company to bargain
with the Union over terms and conditions applicable to SunSpot
department employees.
The Company thereupon petitioned this court for review, and the
Board cross-petitioned for enforcement of its order. The Union has
intervened to support the Board’s cross-petition for enforcement.
II
Employee self-determination in the collective bargaining process is
perhaps the most fundamental promise of the National Labor Rela-
tions Act (the "NLRA" or the "Act"), 29 U.S.C. § 151 et seq. Section
7 of the Act provides:
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Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, and
shall also have the right to refrain from any or all of such
activities.
29 U.S.C. § 157 (emphasis added). This core provision guards with
equal jealousy employees’ selection of the union of their choice and
their decision not to be represented at all. See Newport News Ship-
building & Drydock Co., 233 N.L.R.B. 1443, 1452 (1957). And the
Act designates the Board as the primary guardian of the rights estab-
lished by § 7. See 29 U.S.C. §§ 153, 159; see also NLRB v. Lundy
Packing Co., 68 F.3d 1577, 1579-80 (4th Cir. 1995).
Among the many functions assigned to the Board in furtherance of
its role in protecting the self-determination of employees is the power
to define "the unit appropriate for the purposes of collective bargain-
ing." 29 U.S.C. § 159(b). Congress expressly directed the Board,
when exercising this power, to do so with the purpose of "assur[ing]
to employees the fullest freedom in exercising the rights guaranteed
by this subchapter." Id. Accordingly, the Board’s bargaining-unit
determinations must necessarily accept, as a basic premise, the obli-
gation to protect employees’ § 7 rights. But in light of the NLRB’s
special expertise and its need for flexibility in crafting unique
responses to the particular facts surrounding any given labor-
management relationship, the Board generally enjoys broad discretion
when it makes these determinations. See Arcadian Shores, Inc. v.
NLRB, 580 F.2d 118, 119 (4th Cir. 1978). That discretion, while
broad, is, of course, not unbridled, see Westvaco, Va., Folding Box
Div. v. NLRB, 795 F.2d 1171, 1173 (4th Cir. 1986), for the size and
scope of a bargaining unit can play a pivotal role in the employees’
ability to exercise the rights conferred on them by § 7, see Lundy
Packing, 68 F.3d at 1583 (noting that the "deference owed the Board"
will not extend "to the point where the boundaries of the Act are
plainly breached").
In defining an appropriate bargaining unit, the Board can exercise
its power in two ways. The usual course is to delineate the boundaries
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of a proposed unit in a clarification proceeding and then order an elec-
tion in which the affected employees vote for or against union repre-
sentation. See, e.g., Lundy Packing, 68 F.3d at 1579. Alternatively
and more rarely, the Board may, mainly for administrative conve-
nience, "accrete" a small group of employees to a larger preexisting
unit without the benefit of an election, thus assigning to the accreted
employees the preexisting unit’s choice of bargaining representative.
See Universal Security Instruments, Inc. v. NLRB, 649 F.2d 247, 253
(4th Cir. 1981) (citing Lammert Indus. v. NLRB, 578 F.2d 1223, 1225
n.3 (7th Cir. 1978); NLRB v. Sunset House, 415 F.2d 545, 547 (9th
Cir. 1969)). 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 cer-
tainty, based on the circumstances, that the employees’ rights of self-
determination would not be thwarted.
Thus, the Board enters an accretion order only when the accreted
employees have an insufficient group identity to function as a sepa-
rate unit and their interests are so closely aligned with those of the
preexisting bargaining unit that the Board can safely assume that the
accreted employees would opt into that unit if given the opportunity.
See Archer Daniels Midland Co., 333 N.L.R.B. No. 81, 2001 WL
303760, at *6; Safeway Stores, Inc., 256 N.L.R.B. 918, 918 (1981);
Melbert Jewelry Co., 180 N.L.R.B. 107, 110 (1969); see also Wes-
tinghouse Elec. Corp. v. NLRB, 506 F.2d 668, 672-73 (4th Cir. 1974)
(noting that the Board may not, under the guise of accretion, deny
employees an election to express their choice). While a mere finding
of a "community of interest" among affected employees may be suffi-
cient to justify the Board’s action in defining a unit to conduct a rep-
resentation election, Lundy Packing, 68 F.3d at 1581, a decision to
accrete employees to a unit without an election requires a showing of
much more. Accordingly, the Board has determined that it may issue
an order to accrete employees to a preexisting bargaining unit only
when the employees have "little or no separate group identity and thus
cannot be considered to be a separate appropriate unit" and the com-
munity of interest between the employees and the existing unit is
"overwhelming." Safeway Stores, 256 N.L.R.B. at 918; see also West-
vaco, 795 F.2d at 1177-78 (applying with approval the Safeway Stores
standard in the Fourth Circuit); Universal Security, 649 F.2d at 253
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(same). The Safeway Stores rule is the standard announced by the
Board that is applicable in this case.
III
The Company contends that the Regional Director, whose decision
the Board affirmed without discussion of the merits, became confused
by application of the appropriate standard and therefore "fail[ed] to
explain why the SunSpot Department would not constitute a separate
appropriate unit." In addition, it argues that the Regional Director’s
finding that SunSpot employees share an overwhelming community
of interest with the bargaining unit "is not supported by the evidence."
Neither party challenges the propriety of applying the Safeway
Stores standard for making accretion decisions, nor does any party
argue that the rule is irrational or inconsistent with the NLRA. See
generally Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359,
364 (1998); see also Westvaco, 795 F.2d at 1177-78; Universal Secur-
ity, 649 F.2d at 253-54. Rather, the question that the Company raises
is whether, in this case, the Board properly applied the standard. This
suggests the question, as phrased by the Supreme Court in an analo-
gous context: Is the Board’s "announced standard . . . really the effec-
tive one" in this case? Allentown Mack, 522 U.S. at 373. If not, any
conclusion reached would violate the scheme of "reasoned decision-
making" established by the Administrative Procedure Act, which
requires "the Board . . . to apply in fact the clearly understood legal
standards that it enunciates in principle." Id. at 376. Once the proper
standard is understood, we must then determine whether the Board’s
conclusion under that standard was supported by substantial evidence.
See 29 U.S.C. § 160(e). That standard is the same we apply when
reviewing a jury verdict. See Allentown Mack, 522 U.S. at 366-67
(equating the "substantial evidence" inquiry with the question of
"whether on this record it would have been possible for a reasonable
jury to reach the Board’s conclusion").
The Board’s announced standard for making accretion decisions
has two defining prongs: (1) whether the subject employees "have lit-
tle or no separate group identity and thus cannot be considered to be
a separate appropriate unit," and (2) whether the subject employees
"share an overwhelming community of interest" with the bargaining
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unit to which they would be accreted. Westvaco, 795 F.2d at 1173
(quoting Safeway Stores, 256 N.L.R.B. at 918) (internal quotation
marks omitted). Because the prongs are stated in the conjunctive, each
provides an independent requirement. Thus, for example, a group of
employees could be found to have no separate group identity and
therefore could not be considered a separate appropriate unit. Yet,
they might not have an overwhelming community of interest with the
particular bargaining unit under consideration. Another bargaining
unit might, in this hypothetical, be more appropriate. The Safeway
Stores rule thus requires two separate findings. The first — whether
the employees could be a separate appropriate unit — determines
whether the employees should be allowed to exercise their choice
through an election. The second — whether the employees, who
could not be a separate unit, have an overwhelming community of
interest with the bargaining unit under consideration — identifies
whether the unit is one to which employees should be accreted or
determines whether they should be accreted to any unit at all.
When the two-part test of Safeway Stores is faithfully applied,
accretion of employees to a bargaining unit will occur only in those
extraordinary cases in which the Board can be reasonably certain 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.* See 256 N.L.R.B. at 918 (pointing out that "[t]he
Board’s fundamental concern, however, is to insure that in cases
where such an issue [i.e., accretion] is raised the right of interested
employees to determine their own bargaining representative will not
*Given that the accretion doctrine is, at bottom, concerned with the
protection of the accreted employees’ wishes, we agree with the
Regional Director that the hearing officer’s exclusion of evidence prof-
fered by the Company to show that SunSpot employees did not desire
union representation was "error." See Sandvik Rock Tools, Inc. v. NLRB,
194 F.3d 531, 535 (4th Cir. 1999); Westinghouse Elec., 506 F.2d at 673;
see also NLRB v. Stevens Ford, Inc., 773 F.2d 468, 474 (2d Cir. 1985);
NLRB v. Ideal Laundry & Dry Cleaning Co., 330 F.2d 712, 717 (10th
Cir. 1964). But unlike the Regional Director, we fail to see how this error
was not serious and prejudicial. Indeed, it is difficult to imagine more
probative evidence of the employees’ community of interest and group
identity than documentation of their sentiment about the proposed accre-
tion.
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be thwarted"); Melbert Jewelry, 180 N.L.R.B. at 110 (stating that the
Board will not "under the guise of accretion" deny employees "the
opportunity of expressing their preference . . . that they wish to autho-
rize the Union to represent them"). And because misuse of accretion
poses a significant threat to the self-determination rights of employees
guaranteed by § 7 of the NLRA, courts have been particularly vigilant
in assuring that the Board observes in practice the strict standards it
has adopted for accretion orders. See, e.g., Westvaco, 795 F.2d at
1177; NLRB v. Stevens Ford, Inc., 773 F.2d 468, 472-76 (2d Cir.
1985); Westinghouse Elec., 506 F.2d at 672-73. If there is any sub-
stantial doubt, the policy of the NLRA requires that an election be
conducted. Cf. Martin Marietta Chems., 270 N.L.R.B. 821, 822
(1984) (noting that when "a question concerning representation [as
between competing bargaining units] arises, . . . the Board will not
impose a union by applying its accretion policy").
In this case, therefore, the Regional Director should have consid-
ered first the Board’s jurisprudence for determining whether the Sun-
Spot employees had a separate group identity sufficient to be
considered a "separate appropriate unit." If the employees could be so
considered, then accretion would be inappropriate.
When the Board determines whether employees could constitute an
appropriate bargaining unit, it enjoys unusually broad discretion
because bargaining units can be determined by reference to a long list
of different factors, and there is very often "more than one appropriate
bargaining unit within a single employment unit." Sandvik Rock
Tools, Inc. v. NLRB, 194 F.3d 531, 534 (4th Cir. 1999). The Board
is thus "free to select any one of those appropriate units as the bar-
gaining unit." Arcadian Shores, 580 F.2d at 119. Twelve criteria, by
which the Board determines whether a "community of interest" exists
to support finding an appropriate bargaining unit, have been identi-
fied, and no one of them is more dominant than the other. See Lundy
Packing, 68 F.3d at 1580. These are:
(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)
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frequency of contact or interchange among the employees;
(6) geographic proximity; (7) continuity or integration of
production processes; (8) common supervision and determi-
nation of labor-relations policy; (9) relationship to the
administrative organization of the employer; (10) history of
collective bargaining; (11) desires of the affected employ-
ees; (12) extent of union organization.
Id. (quoting I.T.O. Corp. v. NLRB, 818 F.2d 1108, 1113 (4th Cir.
1987)) (internal quotation marks omitted); accord Sandvik Rock
Tools, 194 F.3d at 535. When the Board applies these factors in a rea-
soned manner, its determination of an appropriate bargaining unit for
an election stands unless it is shown to be "utterly inappropriate."
Arcadian Shores, 580 F.2d at 120.
Because the Board’s discretion in selecting an appropriate bargain-
ing unit for an election is broad, that same breadth correspondingly
narrows its discretion in accreting employees because, under the
Board’s accretion rule, any employees that could appropriately be a
separate unit cannot be accreted to another unit.
In this case, the Regional Director seemed to overlook his obliga-
tion to determine first whether the SunSpot employees could be con-
sidered a separate appropriate unit. It appears that he instead focused
on the second prong alone out of some demonstrated uncertainty
about the appropriate rule. As he stated, "It is not entirely clear from
Board precedent whether accretion is appropriate when the employees
who would be added to the existing unit merely would not constitute
a separate appropriate unit or whether they must also have an over-
whelming community of interest with the represented employees."
Had the Regional Director considered the first prong of the Safeway
Stores rule, he would not have been able to conclude that the SunSpot
department employees did not have a separate identity sufficient to be
considered an appropriate bargaining unit.
The SunSpot department was organized as a separate department
and effectively operated day to day as a separate department, even
though it was geographically proximate to other departments. Its
immediate supervisors were dedicated to the SunSpot department and
did not overlap with any other department. Cf. Sandvik Rock Tools,
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194 F.3d at 536. SunSpot employees did not participate in the prepa-
ration of the newspaper. The department’s employees met as a depart-
ment on a weekly basis; they decided their own goals in developing
the website; they developed their own budget; and they controlled the
terms and conditions of departmental work. They were also compen-
sated differently from other employees, receiving a different benefit
package and individually-negotiated wages. In focusing work on a
website and on customers surfing the Web, the department’s employ-
ees were required to have skills and expertise quite different from
those employed in producing a newspaper. Moreover, the equipment
and supplies they used did not overlap with any other department.
Indeed, the only evidence of any sharing involved the isolated
instance of using a projector from the newsroom and the occasional
use of a copy machine in the advertising department. While SunSpot
department employees interacted with other departments to obtain
content for the website — e.g., news articles — and to solicit newspa-
per customers for advertising dollars, this degree of interaction is no
different from that which is often found between separate appropriate
units in any given business. The SunSpot department’s employees did
not overlap with other departments in other respects. For example, the
unit employees did not participate in the production of the extensive
material that appears exclusively on SunSpot, and none of the Sun-
Spot employees who would fall within the NLRA’s jurisdiction were
hired from the newspaper operations. It is therefore not surprising that
SunSpot department job classifications and descriptions differed from
those in other departments.
Because these circumstances indicate that the SunSpot department
could be a separate appropriate bargaining unit, see Stephens Produce
Co., 214 N.L.R.B. 131, 139 (1974) (finding that meat department
employees constituted a separate appropriate unit from bakery and
dairy employees), the first prong of the applicable rule precludes
accretion of its employees to another unit. Just as we would be
required to affirm a Board finding that the SunSpot department was
a separate appropriate bargaining unit, we must reject accretion of the
SunSpot department to another bargaining unit.
Even in his application of the second prong — whether the
employees had an overwhelming community of interest with the bar-
gaining unit — the Regional Director’s conclusion is not supported
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by substantial evidence. The Board was required to consider a broad
range of factors to determine whether a group of employees shares an
overwhelming community of interest with the bargaining unit, includ-
ing "(1) similarity of working conditions; (2) job classification; (3)
skills and functions; (4) similarity of products; (5) interchange ability
of employees; (6) geographical proximity; (7) centralization of mana-
gerial control; (8) functional integration of the business; [and] (9) col-
lective bargaining history." Universal Security, 649 F.2d at 253-54
(internal citations omitted). The Board need not apply these specific
factors rigidly or formalistically, see id. at 254, because the factors
merely serve as a convenient shorthand for the critical underlying
question of whether the economic interests of the employees to be
accreted are so closely aligned with those of the preexisting unit that
the Board can safely assume that the employees would opt into that
unit if given the opportunity. See Safeway Stores, 256 N.L.R.B. at
918.
Although the Regional Director analyzed each of these nine factors
in this case, and the facts undoubtedly indicated that some community
of interest exists between SunSpot employees and the bargaining unit,
substantial evidence did not support the Regional Director’s determi-
nation that this community of interest was so overwhelming that the
employees’ choice could be forgone.
In addition to all of the facts indicating that the SunSpot depart-
ment acted separately and independently — as we recited above —
most fundamental to the community-of-interest question is the fact
that the SunSpot department employees were developing a product
that, while obviously linked to and dependent upon the newspaper in
important ways, was nonetheless a different product, aimed toward a
different market and different customers, capable of generating profits
for the Company in a very different manner. As the Union’s president
acknowledged, "The delivery of information via a website is different
from the delivery of information via the printed newspaper." And
because they were working to provide a fundamentally different prod-
uct, SunSpot department employees possessed abilities that were sim-
ilarly different from those possessed by bargaining unit employees.
They were required to utilize technological and computer skills, such
as programming in the HTML language, that unit employees were not
required to have, and to perform tasks related to SunSpot’s non-
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newspaper-related services, such as moderating discussion groups and
stockpiling permanent reference information. This inherent difference
between the two sets of employees could not be overlooked. A rea-
sonable jury could not have concluded that the community of interest
with the bargaining unit was overwhelming such as to forecast that the
SunSpot department employees would have wanted to join the bar-
gaining unit. Even if this question were close, the Board should have
resolved it by an election. See Stevens Ford, 773 F.2d at 473; NLRB
v. Food Employers Council, Inc., 399 F.2d 501, 505 n.1 (9th Cir.
1968); Martin Marietta, 270 N.L.R.B. at 822.
The Board’s fundamental concern in its accretion cases, expressed
through its announced rules of decision, has traditionally been "the
right of interested employees to determine their own bargaining repre-
sentative." Safeway Stores, 256 N.L.R.B. at 918. Accretion, according
to these precedents, is an order of last resort, a drastic remedy for
exceptional cases. Yet, the Board has not demonstrated why this case
is so exceptional that an election should have been bypassed. The
NLRA gives most workers "the opportunity to decide whether they
want the union or not," Westinghouse Elec., 506 F.2d at 672, and the
employees of the SunSpot department should have that opportunity
also.
When the Board applied only the second prong of its announced
two-prong rule in this case, it breached the requirement of reasoned
decisionmaking by "applying a rule . . . which is in fact different from
the rule . . . formally announced." Allentown Mack, 522 U.S. at 374.
Moreover, substantial evidence did not support a conclusion that
either of the two prongs under the announced rule was met. We there-
fore grant the Company’s petition for review and deny the Board’s
petition for enforcement of its bargaining order.
In light of our ruling on the merits, we need not address the Com-
pany’s objection to the timeliness of the Union’s clarification petition.
PETITION FOR REVIEW GRANTED AND
ENFORCEMENT DENIED
KING, Circuit Judge, concurring in part and dissenting in part:
As my good colleague Judge Niemeyer correctly emphasizes, the
Regional Director appears in this case to have focused solely on the
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"community of interest" inquiry, while neglecting to conduct the dis-
tinct, albeit related and required, analysis of whether the SunSpot
employees could appropriately be considered a separate unit. Even if
the SunSpot employees were properly found to share a community of
interest with the employees in the Union’s existing bargaining unit,
accretion would nonetheless be improper if the SunSpot employees
could be regarded as a separate unit. I agree with the panel majority
that absent such a "separate unit" finding, the Regional Director’s
accretion analysis — adopted by the Board — is legally deficient.
I write separately, however, because I believe that, upon identify-
ing the Regional Director’s legal error, we should grant the Compa-
ny’s petition for review, deny the Board’s cross-petition for
enforcement, and remand so that the appropriate legal standard may
be applied by the Board. Rather than remanding to the Board, how-
ever, the majority makes its own findings, surmising that the SunSpot
department bears a separate identity sufficient to be considered an
appropriate bargaining unit. See ante at 13-14 ("Had the Regional
Director considered the first prong of the Safeway Stores rule, he
would not have been able to conclude that the SunSpot department
employees did not have a separate identity sufficient to be considered
an appropriate bargaining unit."). Then, having determined that "the
first prong of the applicable rule precludes accretion of [the SunSpot]
employees to another unit," the majority proceeds to review the
Board’s application of the "community of interest" prong. See ante at
14-16. This sort of activism is inappropriate, and I believe that we
should refrain both from reaching the merits of the first prong, i.e.,
whether the SunSpot employees actually constituted a separate unit,
and from reviewing the Regional Director’s application of the second
prong, i.e., whether substantial evidence supported a finding that the
SunSpot employees had an overwhelming community of interest with
the existing bargaining unit.
Indeed, remand on the first Safeway Stores prong obviates any
need to evaluate the second, "community of interest" prong at all.
Such a course of avoidance seems particularly wise when we have
substantial doubts concerning a core Board finding. After all, ascer-
taining whether employees share a community of interest — with
each other or with employees in an existing bargaining unit — is an
extremely fact-sensitive enterprise, with respect to which the Board
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is entitled to great deference. Disturbing a decision peculiarly within
the Board’s expertise is a grave judicial exercise, and one that should
be carried out with reluctance. The majority nevertheless opines that
while "some community of interest exists between SunSpot employ-
ees and the bargaining unit," such community of interest is insuffi-
cient to justify the Board’s accretion decision. See ante at 15
(emphasis in original). There is simply no reason, in this instance, to
engage in that sort of line-drawing.*
Because I agree that the Board’s decision was founded on the
application of an improper legal rule, I would, as explained above,
grant in part the Company’s petition for review, and deny the Board’s
cross-petition for enforcement. Rather than conducting our own
unwarranted evaluation of the merits, however, we should simply
remand the case to the Board for reconsideration.
*Less conspicuously, the panel majority ascribes "serious and prejudi-
cial error" to the hearing officer’s exclusion of certain evidence sought
to be introduced by the Company to show the SunSpot employees’ aver-
sion to union representation. See ante at 11 n.*. The majority neglects to
mention that the proffered statements were made in the course of settle-
ment discussions — and, as such, are of dubious admissibility. Rather,
the majority registers its "agree[ment]" with the Regional Director that
the exclusion of such evidence was "error," and cites cases supporting
the proposition that employee sentiment is relevant to representation
decisions.
Two additional points bear noting. While acknowledging that "the
Board will consider the desires of unrepresented employees in determin-
ing whether to accrete them to the existing unit[,]" the Regional Director
never explicitly concedes that exclusion of such evidence constituted
error. See J.A. 33 n.13. He simply states that, "in view of the other evi-
dence," the excluded statements "would not have been convincing in this
case." See id. Moreover, the majority makes no attempt to refute the
Regional Director’s factual conclusion — as by demonstrating, for exam-
ple, that the SunSpot employees had clearly manifested a will to remain
outside the bargaining unit — but simply engages in speculation as to the
gravity of the exclusion. See ante at 11 n.* ("Indeed, it is difficult to
imagine more probative evidence of the employees’ community of inter-
est and group identity than documentation of their sentiment about the
proposed accretion.").
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