*1 fifty percent, jobs light duced sedentary jobs.

kept all

III. about with VE consulted ALJ

The on option

implications siVstand adjusted VE and the base

occupational left accordingly and job categories

certain he re- indicating that thus unchanged,

one concerning directive to the ALJ’s

sponded rely entitled ALJ was The option. We therefore VE’s calculations.

on the order. final the Commissioner’s

affirm

AFFIRMED. GROUP, INCOR LEE BAKERY

SARA formerly as The

PORATED, known Petitioner, Company,

v. RELATIONS LABOR

NATIONAL

BOARD, Respondent. Labor Relations

National Petitioner,

Board,

v. Incorporated, Bakery Group, Lee

Sara

formerly known Respondent.

Company, 01-2067, 01-2228.

Nos. Appeals, Court of States

United Circuit.

Fourth 27, 2002. Feb.

Argued July

Decided *2 Preyer

ARGUED: Roberts, Charles III, Constangy, Smith, L.L.C., Brooks & Winston-Salem, Carolina, North for Sara Lee. Habenstreit, David S. Supervisory Attorney, Board, National Labor Relations Washington, D.C., for Board. ON Arthur Rosenfeld, General, BRIEF: F. Jr., John Higgins, General, E. Deputy John Ferguson, General, H. Associate Ai- leen Armstrong, A. Deputy Associate Gen- eral, Lofaso, Anne Marie Labor National Board, D.C., Relations Washington, Board. LUTTIG,

Before and NIEMEYER Judges, Circuit HERLONG, United States District Judge for the District Carolina, sitting by South .designation. n granted Petition for part review in in part denied and cross-application for granted enforcement part in denied in part published opinion. Judge opinion, NIEMEYER wrote which .I Judge joined. HERLONG Judge concurring opinion an wrote LUTTIG (now Inc. Company, dissenting part. part Inc.) (“Ear- Bakery Group, Lee Sara *3 distributes and manufacturers

thgrains”) States the Ünited throughout OPINION goods baked facilities, of some through distribution NIEMEYER, Judge. Circuit At stores. bakery contain which also facilities, Earthgrains’ many these of Inc., a Company, Earthgrains After represented be' to have elected ployees acquired goods, of baked manufacturer Confectionary, and Tobacco Bakery, Inc.; manufacturer another CooperSmith, (the “Un- Union International Workers facili- and consolidated goods, of baked Coo- ion”). acquired Earthgrains Before cities, in several companies of two ties Inc., facili- 19 distribution had perSmith, (the Board Relations Labor National into were divided which Mississippi, ties “NLRB”)' Coo- accreted or the “Board” of which had each bargaining three had not been who perSmith’s Ear- with agreement collective union, Earthgrains’ into aby represented thgrains. giving units without existing to ac- Earthgrains a chance employees January CooperSmith On so distribu- wished to be they competing CooperSmith, quired on vote operated refused which also Earthgrains goods, tor of When baked represented. of Mississippi. None Missis- four of its facilities union at several recognize to represent- were -Meridian, Laurel, Hatties- CooperSmith’s sippi facilities— aby found ed union. and Columbus—the burg, labor unfair committed Earthgrains up Earthgrains ended In where cities Labor the National of practices violation of its result facilities multiple with Ear- (“NLRA”) and ordered Act Relations Earthgrains CooperSmith, acquisition four the union at recognize thgrains and CooperSmith consolidated sites. facilities, a former closing either thgrains CooperS- facility or a former Earth-grains and for review petition Earthgrains’ On facility naming the new facility and mith for enforce- cross-application NLRB’s had the more company according to which that at order, conclude we its ment particular market share'in dominant sites, failed three-of union then associated Earthgrains city. employ- accreting for precedents its own facility, con- the name status with those respect to ees, accordingly, with and the Union recognition tinuing for petition sites, Earthgrains’ grant we refusing and named facilities cross-applica- Board’s deny the review facilities named the Union recognize remaining theAt for enforcement. tion CooperSmith. petition site, Earth-grains’ deny we Hattiesburg, Laurel, Meridian, application Board’s grant review its own closed respect Mississippi, Finally, for enforcement. distribution Neal, an facilities Thomas former finding a Board facilities, CooperSmith the former constructively using was Earthgrains’.employee, employ- transferring former rights, statutory exercising discharged for CooperSmith to the new ees to enforce application the Board’s grant we CooperSmith with the there work as modified herein. consolidation, employees.1 After the 11 of employees.” Chairman Peter Hurtgen the 13 at Meridian dissented, were former concluding that the majority CooperSmith employees; 8 of 9 employees had failed to identify the properly. issue Laurel were former em He stated that “the real issue whether 10 of 15 ployees; and at Hat the newly acquired Cooper Smith employ- tiesburg were em ees are appropriately a part of the two Columbus, ployees. At closed respective units The issue here is the CooperSmith facility and transferred whether the new can be added the former to the to the unit without a vote.” Addressing Earthgrains facility. The consolidated fa issue, Chairman Hurtgen concluded *4 cility had former Earthgrains employees that “accretion requires a finding of ‘over- ” and 3 former CooperSmith employees. whelming community interest,’ of a find- But because the Columbus market was ing supported which was not by the rec- brand, dominated the CooperSmith ord. Earthgrains renamed the former Ear- order, From the Board’s thgrains facility CooperSmith. filed petition review, for’ and the After declined to recognize NLRB filed cross-application for en- the Union at the four facilities operating forcement of its order. name, CooperSmith under the the NLRB’s charged Earthgrains General Counsel with II practices unfair labor in failing negoti- Union, with ate the in violation of The principal question on appeal 8(a)(1)-and 8(a)(5) §§ of the In a NLRA. whether the Board applied long-stand its decision, split the Board concluded that ing principles defining for bargaining units Earthgrains had violated by. NLRA the and for accreting employees' to existing refusing to with negotiate Union and the bargaining units when it held that Earth- by making changes unilateral at these four grains had an obligation to recognize bar addition, facilities. the Board found gaining enlarged units “as by the accretion had constructively dis- CooperSmith of employees.” In deciding charged Neal, an employee Thomas at Co- questions, such must lumbus, for exercising his rights under the See, principles consistently. e.g., NLRB v. NLRA, 8(a)(3) § in violation of of Act. the Lundy Co., Packing 68 F.3d In ruling that the newly-acquired Coo- (4th Cir.1995). perSmith facilities should have been in- outset, At agree the we cluded in with preexisting Earthgrains Chairman bargain- units, Hurtgen ing the particular the present- concluded that issue acquisition ed is “did not affect Board properly whether the appropriate- accreted ness of the bargaining Cooper units or [Ear- Smith to Ear- thgrains’] obligation to recognize thgrains’ preexisting the Un- bargaining units— ion representative units, as of those as not Earthgrains’ whether existing units enlarged by accretion CooperSmith remained “appropriate.”2 Because Ear- Meridian, Earthgrains 1. At colleague transferred Our in dissent likewise focuses on portion of its CooperS- appropriateness of Earthgrains' existing new units, bargaining facility, retaining articulating mith bakery the issue workers Earthgrains’ facility. “must be .separate as treated added). (Emphasis units.” Earthgrains, 29 obli- [Earthgrains’] or units recog- not it need contends

thgrains repre- as the Union recognize newly gation ac- representation union nize enlarged by had those who sentative CooperSmith quired employees. had CooperSmith a union or the accretion represented never been that: representation, the record shows to vote Specifically, opportunity justi- was accretion produce continues [Earthgrains] the issue is whether units re- existing sub- not whether without bakery products fied and distribute The transactional appropriate. employ- mained operations; changes in stantial dis- are issue relating to this represented facts historically ees pute. overall majority each comprise a units organiza- unit; labor no other expanded em- CooperSmith to the respect

With em- Laurel,' represented tion Meridian, and Hatties- ployees share and those ployees; formér burg, previ- community of interests open, and remained facili- con- work those ously represented ployees a few Earthgrains transferred operations. ties. While solidated *5 each Coo- to employees former of its own added). did The Board (Emphasis site at each majority facility, the perSmith community of interests a address whether employees, remained of each employees existed between to elected had never employees and those bargaining and the facilities separate these respect by a union. With represented be at each employees unit or whether at employees to the former group separate facility a had a for- Columbus,, transferred they were sepa- a to be considered identity sufficient Ear- facility where mer unit. bargaining rate At that also worked. employees thgrains who were employees, site, Earth-grains’, that the argues appeal, On Union, in the remained by the represented deci- appropriate “disregarded Board majority. . why . it line, explain made no effort sional ap- precedents], disregarded [its] had Coo- that determining analysis inconsistent completely a plied these all at four perSmith argues It inapplicable.” existing patently to two that was be accreted should facilities account units, to take into Board failed that the - new acquired the fact that simply: stated locations, geographical in distinct support record is substantial There law, ap- which case overlooking its thus finding judge’s law] the [administrative facility has a new that presumption plies of its consolidation [Earthgrains’] to be identity sufficient group a separate' [CooperSmith] operations existing unit. separate bargaining considered appropriateness did not affect thereby denied Earthgrains’ be units and however, challenge appropriate- does not Hürtgen like- Chairman right election. to an Rather existing bargaining units. ness itsof raised recognized the actual issue wise of whether question it raises noting, is wheth- discretion, Earth-grains, “the real issue recognize could,- that the in its employ- Cooper acquired Smith newly respective er at part [Ear- two appropriately ees are facilities, might constituted be issue as constituted, restated thgrains] units.” He they be so If could units. added can be the new “whether the-CooperSmith em- thgrains contends that a vote.” existing unit without accreted be ployees could not 297 regulates The NLRB policy circumstances, in the broad that the employees’ rights “[ejmployee context self-determina- of self-determination would not be thwart tion the collective bargaining process is Sun, ed.” Baltimore 257 F.3d perhaps the most [NLRA’s] fundamental Specifically, through its announced stan promise.” NLRB, Baltimore Sun Co. v. dard, the Board rejects accretion unless Cir.2001). 257 F.3d Specifi- two prerequisites (1) have been satisfied: § cally, grants of the NLRA the Board must find that the employ new right equally choose between self ees have “an insufficient group identity to organization through representatives “of unit”; (2) function as a separate their own choosing” the right “to re- must find an “overwhelming community of frain” any collective bargaining activ- interest,” such that the accreted ity. 157; § 29 U.S.C. see also Melbet have “interests closely [that] are so aligned Co., Jewelry 107, 109, 180 N.L.R.B. 1969 with those of the preexisting bargaining (1969). WL 23025 unit that the Board can safely assume the accreted would opt into the To protect the right employees’ of self- unit given if the opportunity.” Baltimore determination, the Board is given broad Sun, 257 F.3d 427 (citing Safeway discretion to define appropriate collective Stores, 256 N.L.R.B. 918, 1981 WL 159(b); § units. See 29 U.S.C. (1981)). Lundy Packing, 68 F.3d 1579-80. turn, Those vote on union repre- aWhen company acquires employ new sentation, and, wins, if the union the union ees through the acquisition of an entire may bargain collectively employer with the facility, the Board has presumptively treat to reach a collective bargaining agreement *6 ed employees at the new facility as a that will govern the unit for an agreed See, bargaining unit. e.g., ATS During term. the term of the collective Acquisition Corp., 712, 712, 321 N.L.R.B. bargaining agreement, new employees of 1996 (1996); WL 395871 Group, Gitano the company where the bargaining unit Inc., 1172, 1175, 308 N.L.R.B. 1992 WL exists are routinely accreted into the unit (1992). And 281657 the Board generally to be See, bound the agreement. e.g., compel does not employees .at the new Works, NLRB,

Auciello Iron Inc. v. 517 facility to be included a pre-existing 781, 786, 1754, U.S. 116 S.Ct. 135 L.Ed.2d bargaining unit allowing “without those (1996) 64 (describing the union’s entitle- employees opportunity of expressing ment to a presumption of majority status preference secret election.” during the term of a collective bargaining Co., Archer Daniels Midland 333 N.L.R.B. agreement). But that routine of course 81, 303760, (2001) No. 2001 WL at *6 action assumes that the new employees (quoting Jewelry, Melbet 180 N.L.R.B. at have or no separate “little group identity 110); Co., Kroger 546, 155 N.L.R.B. 548- and thus cannot be considered to abe 49, (1965) 1965 WL 15824 (requiring new appropriate unit.” Baltimore plants elections when two into an “merge Sun, (citation 257 F.3d 427 and internal entirely new operation”); General Extru quotation omitted). marks Co., sion 121 N.L.R.B. 1958 WL contrast, (1958) when an entire group 13565 (refusing to apply the con employees nonunion joins a union com tract bar doctrine where “changes have pany, accretion is rare only reserved occurred distinguished nature as for “cases in which [the could con Board] from operations the size of the ... involv great clude with certainty, based ing on the a.merger ... of two or opera- more NLRB, Shores, v. Arcadian Inc. unit. See tions"). But even if the Board fails to Cir.1978). its Given F.2d apply presumption, bypass it will elec to define discretion broad employees tions and acërete the at the overcome that have Board could not separate facility existing bargain into the satisfying itself that without And barrier. ing onlywhen majori unit it is clear that a facility each separate ty facility of the at the new identity, the a group not have could acquired by company join wishes to not have accreted could existing bargaining unit-i.e., unit. existing bargaining to an where the Board "could conclude with great certainty employees' . Moreover, the Board could not have sat- rights of self-determination would not be step Safewcty isfied the second of its Stores Sun, thwarted." Baltimore 257 F.3d at accretion standard-that "overwhelming" had an commu- nity Earth-grains of interest with the At the three locations where Ear- ployees thgrains acquired in the units. To decide new facilities and where question, traditionally ap- CooperSmith employ it continued with plies test, considering: ees-Meridian, Laurel, H~ttiesburg- a 12-factor manner (1) in the scale and similarity apply presumption the Board failed to its (2) similarity earnings; determining the facility regarded that each new be as a work, benefits, hours in employment separate bargaining Acqui unit. See ATS of em- and conditions and other terms' sition, 712; 321 N.L.R.B. at Gitano (3) the kind of similarity in ployment; Group, 308 N.L.R.B. at 1175. For this (4) similarity in the performed; work alone, reason we decline to enforce the skills, training qualifications, accreting Board's order (5) or of contact frequency employees; those facilities. (6) employees; among the interchange presumption without But even (7) continuity or proximity; geographic Group, and Gitano Acquisition ATS (8) production processes; integration long-standing Board failed determination supervision common new em groups of accreting principles for *7 (9) relationship policy; of labor-relations units. It existing bargaining into ployees the organization administrative to the not, that not, conclude could did (10) bar- history of collective employer; facility Cooper Smith each employees at (11) affected desires gaining; to func group identity an “insufficient had (12) organiza- of union extent ployees; Sun, unit,” Baltimore a separate tion as tion. community of 427, and at that 257 F.3d 1580. The F.3d at Packing, Lundy those between interest analysis. And this did conduct Board Earthgrains bar existing in the even analysis, if it had conducted Safeway “overwhelming,” unit gaining was demonstrates in this case limited record reach Stores, To N.L.R.B. have overcome could not the Board conclusion, have would a such step. second CooperSmith the former to find that had similarity between Notwithstanding historically nonunion- employees, each opera- Earth-grains’ CooperSmith’s geographically facility in a location ized tions, CooperSmith Earthgrains in the from distinct in geo- worked unit, group not have could bargaining ar- distinct locations graphical bargaining to form identity sufficient ployees Meridian, at the Laurel, Earthgrains' and Hat- eas in which tiesburg facilities into two addition, units worked. failed to CooperSmith employees follow its own worked under standards Therefore, for so. developed years doing de-we conditions that over cline to enforce the Board’s order working directing for before it was to recognize acquired by Earthgrains. those em- And the em ployees are represented by ployees the Union. at the facilities had subject never been unionized or to a. col At the however, Columbus 'facility, bargaining agreement. Finally, lective the circumstances are sufficiently different Earthgrains employees even after a few to justify a different result. Even after its were transferred to each of the former acquisition CooperSmith, CooperSmith facilities, the operation continued own employees continued to outnumber facility Columbus, even though it employees by substantial changed the name of that facility to Coo- margins-li Meridian; to 2 at 8 to 1 at perSmith, transferred Laurel; Hattiesburg. and 10 to 5 at CooperSmith employees to the former suggest These data alone the for Earthgrains facility. Also, after the Coo CooperSmith employees might mer sue- per Smith employees were transferred to cessfully assert their historicail~ the former Earthgrains facility, the Ear- through vote, given interests if thgrains employees outnum Certainly, chance. the Board could hot ber the CooperSmith four "safely [Coo- assume that the accreted three. Because the former CooperSmith perSmith] employees opt [the would into employees were moved into the Ear- Earthgrains] given relevant unit if thgrains facility and worked there under opportunity." Sun, Baltimore 257 F.3d the conditions historically established at 427. As we observed in Baltimore through a collective bargaining agreement, Sun: the presumption of ATS Acquisition and Because the accretion doctrine is in con- Gitano Group Moreover, would not apply. siderable tension with the statute’s guar- when we the traditional standards antee of employee self-determination, -accreting employees, the outcome be historically has favored em- comes a question, much closer and we elections, ployee reserving accretion or- cannot conclude that the Board violated its ders for those rare cases which it own Accordingly, standards. grant we will could conclude with great certainty, the Board’s cross-application to enforce its circumstances, based on the order insofar it applies to the Columbus employees’ rights of self-determination *8 facility.3 would not be thwarted. Id. Ill

Accordingly, we that conclude the also challenges the Board, in accreting the Cooper Smith em- finding Board’s that Earthgrains violated reject Earthgrains' We argument ádditional suggest the record to that the interests of refusing recognize for to Union at Colum- compromised. were ever To the Earthgrains argues bus. that the lo- contrary, September because since when the placed cal union trusteeship by in trusteeship was reason began, the trustee has continued defalcations, of financial deficiencies negotiate to meet and with to the represent was unable Earthgrains' employ- to extent that willing was to bar- n adequately. ees But nothing gain. we can . find in Neal from which rumors about “constructively supervisor by 8(a)(3) NLRA § told was never But Neal exercising inferences. drew for Neal Thomas discharging” formally by any- or even company, by the rights. statutory his Nor eliminated. one, would be job his that as a November was hired Neal of the elimi- that, in the event was he told Columbus Earth-grains’ route salesman job his would lose job, he nation of his later, February months few facility. A ’ to newa being transferred than rather eliminated, and Neal route-was his out, the rumors it turned And as position. thereafter, however, Shortly laid off. was - inaccurate. acted which Neal were on He loader. a depot as recalled Neal was was never position loader depot Neal’s he cquld return his upon was told eliminated. if position a salesman route his return to -, open. route came evidence that substantial conclude We that Ear- finding Board’s supports Following Earthgrains' acquisition of Neal refusing to by promote thgrains, January 1998, sales routes violated representative, sales route reassigned. . were restructured and When testimony, 8(a)(3) § of the NLRA. Neal’s given routes, Neal was not one of the he rebutted, supports which was not grievance through Union, filed a which given was not that Neal Board’s conclusion rejected. Subsequently, was when a route of his position because route salesman salesman was fired and another route af- Accordingly, we participation. union open, requested came Neal that route. He illegal an finding that Board’s firm the told, however, get was that he would deci- Earthgrains’ contributed Williams, animus rOute if Willie another em- sales as route position a deny Neal ployee, sion turned it down. When Neal asked why priority position, representative. Williams had for the Neal claims that he was told David finding the Board’s But on Willis, supervisor, kept my his "If I had 8(a)(3) “con § violated keep my nose-if I'd nose clean and leave job from his structively discharging” Neal alone, get the union mess I could a route." loader, conclude that we depot Neal was left with the belief that he sup evidence to substantial had no Board got "would have a route" but for his union finding. port its participation. work as discharge, nevertheless Neal constructive prove To. another approximately for loader to establish would have depot Counsel General giv- resigned, He then [intentionally] and half. made month employer “that resig- his explanation following intoler ing working conditions employee’s be nation: did employer so and “that able” try they going to activities.” employee’s were union heard that I had cause Co., be- regardless, my job Mining away Canyon with to do v. Grand NLRB Cir.1997). try to work going 1039, 1049 they was cause F.3d loader, depot discharge may be there wouldn’t that constructive where has held out of there get I better em figured I evidence proved also be off, in a I turned me *9 they so laid Choice” between before a “-Hobson’s ployee faced part of June the first “abandoning] notice employment week’s it out. I worked Intercon [statutory] rights.” her his or WL (Zercom), 2001 N.L.R.B. No. on job was based losing his of Neal’s fear (2001). *1 a Meridian conversation an informal In this case the Board found that remedy would accordingly pay Neal the “quit Neal after being confronted awith difference between what he would have choice resignation [Hobson’s] between or made as a representative route sales continued employment conditioned on re- what he actually made as a depot loader linquishment statutory of rights.” The and at jobs whatever he held after his record, however, evidence in the does resignation, covering period commencing support this conclusion.4 Despite the with the date he was first denied a route suggestion to Neal that he pro- would be and ending with the date of offer of rein- moted to salesman route if he statement. Finally, the “Notice to Em- alone,” “would leave the union there was ployees” provided the Board’s order any never suggestion that Neal’s contin- would have to be modified read: “We employment ued depot as a was will offer loader immediate and full reinstatement conditioned relinquishment on of his stat- to Thomas Neal to a route sales represen- utory rights. No one from Earthgrains job, tative and we will make Neal whole management ever threatened Neal with for alllosses because of our unlawful refus- discharge or .job intimated that Neal’s al to grant1 request his for a route sales depot danger loader was in because representative job.” his union activities. contrary, To the IV own testimony

Neal’s supports only the resigned conclusion that he because of sum, In grant we Earthgrains’ petition job rumors that his would be eliminated for review as it insofar relates to the due to some further restructuring. He Board’s accretion of former CooperSmith suggestion has made no that the rumors employees Meridian, Laurel, and Hat- about the elimination job of his were in tiesburg. grant, We also its petition inso- or, any way indeed, at him directed far as it challenges the finding Board’s the rumors were even circulated man- that Earthgrains constructively discharged agement. short, In there simply no Neal. In all respects, other deny Ear- we basis for finding that Neal faced a Hob- thgrains’ petition. Correspondingly, we son’s quitting Choice of depot his loader grant the cross-application Board’s for en- job or relinquishing statutory rights. his forcement of its order as it applies at Columbus, grant and we its cross-applica- Thus, we while refuse to any enforce tion for enforcement its order with re- remedy finding based on a that Neal was spect to Earthgrains’s denial pro- Neal’s constructively discharged, we conclude motion to a representative. route sales that Neal nevertheless is entitled to a rem- all other respects, deny we enforcement of edy by of Earthgrains’ reason refusal to the Board’s order. promote him to the posi- route salesman IT IS SO tion. ORDERED. Accordingly, we grant will Board’s application to enforce its order LUTTIG, Judge, Circuit concurring insofar itas requires Earthgrains to offer part and dissenting part: position Neal the of route salesman or a “substantially equivalent position” if The majority concludes that the Board position longer no Any exists. back-pay failed properly precedents re- 4. Because thgrains, we conclude that record evi- Board's "Hobson's support finding dence does not that Neal precedent Choice” is consistent with the Choice,” faced an unlawful "Hobson’s we NLRA. issue, need not reach the raised *10 at employees company’s- -a whether

garding I. aas regarded be facility” must a “new accurately de- majority does The and, unit, “for this bargaining separate situa- units and labor bargaining scribe alone,” enforcement it denies reason acquisition Before Earthgrains. tion at Earthgrains commit -finding that Board’s party was a Earthgrains CooperSmith, refusing to practice unfair ted an labor bargaining collective different to four at the union recognize consolidated Bakery, Confection- agreeménts Laurel, Meridian, and Hatties- in facilities International Tobacco Workers ary, and I believe at 298. See ante burg. Union”), (“the cov- each Union, Local 149 misreading of the on a conclusion based Ear- unit” of “bargaining ering a misunder decisions and previous Board’s these collec- One of employees. thgrains authority- review this court’s standing of all covered agreements bargaining tive Futhermore, I Board. of the decisions Earth-grains’ at production majority’s holding with the agree cannot Meridian, oth- Mississippi. The in bakery have concluded not” Board “could that the delivery and agreements covered er three at that the ' among who worked sales satisfied facilities these three consolidated distribu- nineteen different Earth-grains’ in announced the Board’s standard Saf These throughout the state. facilities tion (1981), for Stores, N.L.R.B. eway “Me- as the were known agreements three bargain union-represented into accretion agree- “Gulfport agreement,” ridian analysis majority’s blurs The ing units. ment,” agreement.”1 and “Jackson two distinct issues confuses and together CooperSmith, acquisition After first, whether case: in this presented Earthgrains consol- competitor,2 non-union in the con Earthgrains had city in each operations idated be treated units must solidated CooperSmith dis- and an Earthgrains both the unionized apart bargaining units, be facility would facility. One tribution that had bargaining units multifacility was closed, remaining facility and the pre-consolidation, established been “Earth-grains” or an as either viewed second, the former on depending operation, “CooperSmith” consolidated those pre- dominant company had been which units. bargaining those may accreted be geographic in the relevant consolidation II reasons, from Part I dissent For these facilities, Four of consolidated area. and would en majority’s opinion, Laurel, Meridian, Hattiesburg, located re order of the Board’s portion force continuing Columbus, were deemed the union recognize quiring because Coo- operations, facilities. consolidated four of the all Bakery workers Hardins comprised the former bargaining unit 1. Meridian The (7), working under Columbus Meridian employees in: sales (2), (5), (5), (4), agreement Kos- Tupelo Greenville Forest extant collective (5), (1), (5), Philadelphia Vicksburg ciusko (now agreement”), as the "Jackson known (2), (12), (2), Magee Grenada Jackson assumed, while which (1). bargaining unit Gulfp.ort City Yazoo facil- the Jackson thgrains’ other (4), Hattiesburg in: Laurel covered workers (6), agree- by the "Meridian ity were covered (1), (2),' Picayune Lucedale Brookhaven ment.” (5). (11), (1), Pascagoula Final- Gulfport por- covered a ly, unit the Jackson time CooperSmith’s employees, ofAll Jackson, who employees, in of the sales tion J.A. 714. acquisition, were non-union. Bakery. previously for Hardins worked Bakery acquired Hardins When

303 had perSmith Meridian, the dominant share Laurel, market facilities in and Hatties- Meridian, Laurel, those localities.3 In in burg regarded should be as bar- Hattiesburg, and the former Earth-grains gaining outside scope facility was physically closed and the Coo- and Gulfport Meridian bargain- collective Columbus, facility used. In perSmith was ing agreements, holding that Earth-grains Earthgrains facility the old was used and bore the burden of proving the consol- CooperSmith facility closed. These idation CooperSmith with altered the ex- consolidated employed facilities both for- isting bargaining units point to the (non-union) CooperSmith mer they were no longer appropriate, and that (union) Earth-grains and former employ- Earthgrains failed to show that the consol- ees.4 idation had affected the appropriateness not recognize did union existing 478; units.6 J.A. of the former Earthgrains employees at 485. Nowhere does the majority claim M.eridian, consolidated facilities in that the Board’s refusal regard the con- Laurel, Hattiesburg, Columbus, and even Meridian, Laurel, solidated facilities and though employees, these while they worked Hattiesburg bargaining units in the facility, had to, contrary or an unreasonable inter- by been covered either the Meridian or of, pretation the National Labor Relations Gulfport agreement.5 collective Rather, Act. apparent basis for The National Labor Relations Board found the majority’s deny decision to enforce- be an practice, unfair labor ruling ment portion to this of the Board’s order is that all of the the consolidat- that the Board violated the Administrative ed in facilities Meridian and Columbus by Procedure Act failing “to in apply fact were included in the Meridian collective the clearly understood legal standards that bargaining agreement, and that the Laurel it enunciates in principle.” Allentown Hattiesburg employees were covered NLRB, Mack v. by 359, 376, Gulfport 478; agreement. J.A. 485. U.S. (1998). S.Ct. 139 L.Ed.2d 797 The II. majority characterizes the Board’s deci- rejected The Board in Earthgrains’ sions argu- Acquisition, ATS 321 N.L.R.B. ment that the workers (1996), consolidated 1996 WL 395871 and Gitano (in 3. The other three consolidated Earthgrains' 5. workers in the Meridian and Jackson, Philadelphia, Forest) were facilities had Columbus been covered continuing Earthgrains viewed as operations, agreement; Earthgrains' Meridian workers in because had been dominant in Hattiesburg the Laurel and facilities had been geographic regions. Earthgrains those con- Gulfport agreement. covered existing tinued to collective bar- gaining agreements to the workers in those specifically findings relied on the facilities, including CooperSmith the former Earth-grains in record that "continues to employees who in. transferred produce bakery products and distribute with- changes out operations; substantial facility’s 4. Of the Meridian thirteen consoli- ployees the historically represented from units delivery dated sales and eleven comprise majority expanded CooperSmith overall were former each two unit; Laurel, Earthgrains. organizations were eight represent- from In other labor no came from and one ed employees; Ear- from and those thgrains. Hattiesburg, previously In ten community share a interests worked for and five previously represented Columbus, thgrains. three were from Coo- operations.” J.A. 478. consolidated perSmith Earthgrains. four *12 cases Gitano, in the Board well as 1172, In 1992 WL Inc., N.L.R.B. 308 Group, the in which Earthgrains upon relied establishing “presump- a (1992), as 281657 a presumption, facility” the Gitano applied [a] at new “employees tion” that unit. remained employees bargaining of unionized separate portion as a treated are por while another facility original at the the thing, and such hold no Those cases location. to a new transferred tion were of rea principles not violated Board has 47, Tsubaki, 2000 331 NLRB No. See U.S. arbitrarily declin decisionmaking by soned (2000); Acquisition ATS 791211 WL stan previously-announced its ing apply to Inc., 1996 WL 321 NLRB Corp., that Gitano, held dards. Rental, Inc., (1996); Truck Ryder 395871 portion a “transfers employer when an (1995); 1092, 1995 547774 NLRB WL 318 to a new location one at employees its Co., 1993 WL NLRB Armco Steel facility is new location,” at the unit the (1993). ap never has The Board Id. at 1175 unit. a presumptively an en when presumption plied the Gitano added). presumption that If (emphasis consolidated, or is relocated facility tire determines rebutted, majority test a not not re the of Gitano does recognize language and the must employer whether it Accordingly, was id. at 1175 facility. See such a result. quire new at the union in the unit hold that employees the Board to (“If for majority permissible of the a from transferees facility are at the consolidated employees at the new unit, presume we will Ear former bargaining from original who transferred were support to continue of the es employees part that those remained thgrains facilities employer is and find union and retained bargaining units tablished bargain with and recognize to obligated rights representation. to union their ...”). majority appears The union majority’s opinion, enough, the Oddly why) explain not it does (although believe failing to for faulting the Board while should presumption that the Gitano employees that all -the presume Meridian, in the union because facilities, whether consolidated physically Laurel, Hattiesburg were em- or former Earthgrains to the established relocated existing ployees, are consolidated Earthgrains When facilities. units, only denies Earthgrains bargaining Meridian, Laurel, Hat- in operations Coo- to the former union representation a however, not it did “transfer tiesburg, those facilities. employees at perSmith location to at one its portion of (“[W]e conclude ante at 299 See rather, location,” relocated a new Board, accreting facility, transferring an entire consolidated Laurel, Meridian, and Hat- ployees at employ (not remaining portion) of all two facilities into tiesburg location. facility to the new at that old ees own to follow its failed bargaining were the transferred Although Therefore, we doing for so. standards unit bargaining overall of their “portion” Board’s order di- enforce the decline to the Lau (the unit Gulfport recognize recting employees, Hattiesburg rel and by the represented are those employees unit for the workers Meridian added)). majority (emphasis Union.” Meridian), they, did constitute intact leaves apparently opinion Earthgrains’ “portion” of requiring Board’s order Meridian, Lau original locations representative the union as recognize for the required rel, Hattiesburg, as or apply. presumption Gitano

the three units. No election consolidated III. among

has held been these As to the former CoopérSmith employ however, so the basis for continued ees working in now the consolidated facili representation is if union these employees ties, the issue is they can properly part are somehow still existing, be accreted the bargaining units consist multi-facility, union-represented ing of unionized Earthgrains employees. *13 Board thgrains bargaining precedent permits employees But units. such to be to a preexisting accreted bargaining unit would be with the majority’s inconsistent when employees the have “little or sep no insistence that the Board should ap- have arate group identity and thus cannot be plied presumption Gitano’s of separate considered to be a separate appropriate bargaining units. Perhaps majority unit” and the community of interest be re-, assumes that the union successfully employees tween the the existing unit butted the presumption Gitano with re- Stores, is. “overwhelming.-” Safeway 256 to these spect former NLRB at 918. See also Staten Island ployees facilities, at the consolidated but . University Hospital v National Labor certainly there is no discussion this. of Board, 450, (2d Relations 24 F.3d 455 it And would be inappropriate most Cir.1994) (“Accretion, requires an over majority to make such a tacit as- whelming community of interests between sumption without citing any to evidence group employees smaller of and a larger in the record and without Ear- giving unit ... applies only [and] if one group of show, thgrains opportunity an on re- employees has no identity distinct from the Board, mand to the that the pre- Gitano other.”). sumption has not been rebutted. So it In making finding accretion, its of that appears the outcome reached stated, fashion, in conclusory that majority, which allows the Ear- former the consolidated CooperSmith employees thgrains employees in the fa- consolidated “share community of interests” with the cilities to retain union representa- their employees. unionized J.A. tion, is with its irreconcilable discussion notes, majority 478. theAs the Board did (but of Gitano consistent with view my not community address whether this of Gitano, which, the scope about of for the was “overwhelming,” interests nor did above, I discussed reasons does discuss the “little or no separate group case). this I -no quarrel with the have identity” requirement' of the Safeway majority’s ultimate conclusion that un- Although Stores test. agree I with the represents still ion who that majority the Board should have more transferred from were carefully applied its announced accretion thgrains Meridian, Laurel, facilities in case, standards to the facts of this rather Hattiesburg, I cannot but understand than glossing over the accretion issue as it did,7 rationale. I not think it do appropriate deny especially light This is separate true in group our court's no identity” prong of the Safe standard). observation particular- way that have "courts been Stores See also Universal Se ly vigilant assuring Instruments, curity that the Board observes Inc. v. National Labor Re practice Board, adopted strict standards it has lations 649 F.2d Cir. 1981) (“In for accretion making orders.” Baltimore Co. v. Sun its [accretion] determina NLRB, (4th Cir.2001) (re- 257 F.3d closely analyze tion Board must fusing to enforce an accretion order employees truly and old new share a ") Board when it failed to consider the community (emphasis added). "little or of interest.’ this, interests historically because of order part enforcement Ante vote, given if the chance.” through contains substantial case record however, ac- order, The Board’s at 299. have allowed that would evidence, find, the former cretes CooperS- the accreted Board'to multi- encompass units or no “little have mith facilities, the former from, ple as an “over- well identity” group constitute with, do not the CooperSmith of interest” whelming community or the Meridian portion a sizable employees. such Earth-grains unionized doubt to cast units as Gulfport bargaining sup- reasons to four majority gives The among the majority status union’s on the accre- the Board’s port its conclusion Moreover, ratio high units. accreted test. Stores Safeway fails tion order one is even None is persuasive not, does Earthgrains employees unionized rely mistaken to majority is relevant. *14 any direct analysis, have further without attributes pre-consolidation on the the of prongs to the two relevance Safe- such as CooperSmith of non- numbers Large test. way Stores lo- employment geographical their distinct have may nevertheless union working conditions. unique cations and from, identity” separate group noor “little the bearing on whether no These have community of “overwhelming anas as well inquiry— the accretion subjects of proper with, unionized of a small number interest” employ- these whether, post-consolidation, employees. group iden- “little or no have ees “overwhelming from, an well as tity” relevant to one majority point does The with, the unionized interest” community of “over on whether the that bears factor majority’s The employees. prong interest” community of whelming post-consolidation the ignore desire to satisfied, the lack of and"that is has been the of characteristics among the ac representation union prior understandable, none because employees. See creted its refusal support possibly of them could Lundy v. Board Labor Relations National accretion Board’s order. the to enforce Cir.1995) 1577, 1580 Packing, 68 F.3d Coo- the former reveals that The record bargain “history of the collective (listing way cor- in no employees are perSmith employees” affected “desires of the ing,” the unionized doned off among organization” “extent of union they are contrary, quite employees; has tradition Board factors the twelve facilities, side, the same in working side “community applying when ally applied delivering in tasks the same performing test). However, many other of interest” goods. baked traditionally considered factors “community of interest” making in much the Board of majority also makes di opposite in the cut determinations that former fact finding of the Board’s support Earthgrains em- rection the unionized outnumber as the accretion, such factors especially three consolidated ployees at performed,” “[tjhese of work “similarity in kind data that claims dispute, skills, and in the “similarity qualifications, CooperS- suggest alone .former employees,” “geographic training of successfully assert might mith employees who have never on impose a union the .accreted forecloses accretion Because representa- preference for such indicated right to ployees' select basic . lightly tion. should not representative, “continuity -or proximity,” integration is an discharge “arbitrary and irrational” production processes.” Id. interpretation Given the of the NLRA. I think it case, majority’s facts ruling that important emphasize, however, that we the Board’s standard accretion could need reach not issue whether the satisfied, possibly be without even re- Board’s use of the “Hobson’s Choice” theo manding give the Board an opportunity ry of constructive discharge is permissible to apply Safeway Stores standard under the National Act, Labor Relations instance, the first is indefensible. because the record substantial lacks evi dence to support a finding that Ear sum, it is clear from the record thgrains constructively Neal, discharged facilities, the consolidated assume, even if we arguendo, whether originally from CooperSmith or Board’s articulated “Hobson’s choice” Earthgrains, are part .as a uni- working standard permissible is a interpretation of operation, fied and that the Board’s accre- the statute. tion order was proper, notwithstanding its failure to the'Safeway Stores stan- suggestion Willis’ to Neal that he would dard. Although I conclude that remand- have received a promotion had he not filed ing to the to apply Safeway grievance through the union did not con- standard, given Stores of this .facts- dition Neal’s employment as a case, would be a needless formality, the *15 depot loader on the relinquishment of stat- majority least, should if disagrees, it utory rights. Rather, statement, Willis’ remand with instructions to the Board to most, conditioned Neal’s advancement allow an opportunity apply.the to proper within the company on his abandonment (cid:127) legal standard. protected activity. An employer’s mere conditioning of some benefit or condition IV. of employment on the relinquishment of I concur majority with the statutory rights enough, is not under the finding Board’s of constructive discharge Hobson’s choice theory, to create a “con- regarding Thomas Neal is not supported structive if discharge” employee later by evidence, substantial although, like were, resigns. If it every violation of sec- I majority, am satisfied that substantial 8(a)(3), tion prohibits which “discrimina- supports evidence the Board’s finding that tion regard to ... any term or condition 8(a)(1) (3) Earthgrains violated section employment encourage or discourage of the National Labor by Relations Act membership in any organization” labor refusing promote Neal to route sales would present “Hobson’s choice” to em- representative telling him that his ployees that would allow them quit filing grievance of a kept him from getting later claim reinstatement and backpay. promotion. The Board has never that the doc- held argues that the Board’s trine of “constructive discharge” is this theory “Hobson’s Choice” of constructive broad and did not so hold in this case.8 decide, case, noted, 8. We need however, not in this should be that the Board's the NLRA would permit explicit- powers remedial are confined make-whole caselaw, ly adopt, remedies, policy sanctions, in its punitive that treats see NLRB v. any employee resignation response Inc., Pepsi to a Bottling Fayetteville, Cola Co. of 8(a)(3) practice section Cir.2001), unfair labor aas con- 258 F.3d and that discharge structive that would backpay entitle the em- contingent upon awards are reason- ployee to reinstatement and backpay. It able efforts the victims of unfair labor observations, I concur in With these II Part dissent III and I and Parts (cid:127) (cid:127) opinion. majority’s INVESTMENT MORTGAGE

PRIVATE INCORPORATED,

SERVICES,

Plaintiff-Appellee,

v. ASSOCIATES, AND CLUB

HOTEL Hinds, Andy

INCORPORATED;

Defendants-Appellants. 01-1834.

No. Appeals, Court States

United

Fourth Circuit. 3, 2002. April

Argued 19, 2002. July

Decided *16 ' discharge adopted by theory of constructive damages, see Coro- mitigate practices princi- comport with these Board must" Foods, Labor Relations v. Inc. National net Cir.1998). ples. Any Board, F.3d