United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 2008 Decided March 14, 2008
No. 06-1358
UNITED FOOD AND COMMERCIAL WORKERS, AFL-CIO,
LOCAL 540,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
Consolidated with
07-1060 and 07-1087
On Petitions for Review and Cross-Application for
Enforcement of an Order of the
National Labor Relations Board
George Wiszynski argued the cause and filed the briefs
for petitioner United Food and Commercial Workers,
AFL-CIO.
Steven D. Wheeless argued the cause for petitioner
Wal-Mart Stores, Inc. With him on the briefs was Bennett
Evan Cooper.
2
Philip A. Hostak, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Ronald E. Meisburg, General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben,
Assistant General Counsel, and Robert J. Englehart,
Supervisory Attorney. David S. Habenstreit, Attorney,
entered an appearance.
Before: TATEL, BROWN and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
KAVANAUGH.
KAVANAUGH, Circuit Judge: This case illustrates some
of the collective bargaining complications that ensue when
technological developments diminish the need for skilled
manual labor. Workers in the meat department at the Wal-
Mart in Jacksonville, Texas, elected Local 540 as their
bargaining representative. At the time, those workers used
specialized meat-cutting skills. Wal-Mart later announced its
intention to convert meat departments around the country
from selling meat that was cut on site to selling pre-packaged
meat. In the wake of the announcement, the Jacksonville
Wal-Mart changed its meat department so that it sells only
pre-packaged meat. Because the Jacksonville meat-
department workers no longer use specialized cutting skills,
the NLRB found that the meat department had become an
inappropriate bargaining unit. As a result, the Board
concluded that Wal-Mart has no general duty to bargain with
the Union representing the meat-department employees. But
according to the Board, Wal-Mart nonetheless must bargain
with the Union over the effects of the conversion on the
Jacksonville meat-department employees.
3
Both the Union and Wal-Mart have petitioned for review
in this Court. The Union argues that the meat-department
bargaining unit remains appropriate after conversion of the
department to selling pre-packaged meat. Wal-Mart contends
that it does not have to bargain with the Union over the effects
of the conversion. We conclude that the Board’s decisions on
both issues were reasonable in light of Board precedents. We
therefore deny the petitions for review and grant the Board’s
cross-petition for enforcement.
I
In late 1999, the United Food and Commercial Workers
Union, Local 540, sought to represent meat-department
employees at Wal-Mart’s Jacksonville, Texas, store. In
January 2000, the Board concluded that the 10 meat-
department employees at the Jacksonville store constituted an
appropriate bargaining unit. In February 2000, the employees
elected the Union as their bargaining representative.1
At the time of the union election in February 2000, the
meat department at the Jacksonville store ran a “boxed-meat”
operation. The store received large cuts of meat, and meat-
department employees used specialized cutting skills to
prepare the meat for sale to Wal-Mart customers.
In late February 2000, shortly after the union election,
Wal-Mart announced its intention to convert meat-department
operations at many stores throughout the United States. The
goal of the announced conversion was to implement a pre-
1
The Board expressly affirmed and adopted many of the
rulings, findings, and conclusions of the administrative law judge.
Where appropriate, we therefore cite the administrative law judge’s
decision.
4
packaged-meat operation. Meat-department employees would
no longer cut or even label the meat; instead, stores would
receive pre-packaged meat ready for display and sale.
After the Wal-Mart announcement, the Jacksonville store
began to convert its meat department to pre-packaged meat.
On July 15, 2000, the Jacksonville Wal-Mart completed the
change.
At the same time that the Jacksonville meat department
was converting its operations, Wal-Mart was pursuing
objections to the union election in proceedings before the
Board. In addition, from March through August of 2000,
Wal-Mart and the Union had a series of unsuccessful
exchanges over collective bargaining. Wal-Mart repeatedly
refused to engage in collective bargaining with the Union
until its objections to the union election were resolved. In
March, the Union sent a letter to Wal-Mart demanding
collective bargaining. Wal-Mart denied the request, citing its
pending objections to the union election. In June and July,
the Union sent further requests for bargaining, but Wal-Mart
continued to reject them.
On August 9, the Board rejected Wal-Mart’s objections
to the union election and certified the Union as the meat-
department employees’ bargaining representative. By this
time, Wal-Mart had already converted the meat department.
So on August 16, when the Union again requested bargaining
with Wal-Mart, Wal-Mart again refused, this time on the
ground that the meat-department bargaining unit was no
longer appropriate.
The Board’s General Counsel then issued a complaint
alleging that Wal-Mart committed an unfair labor practice by
refusing to bargain with the Union. After initial proceedings
5
before an administrative law judge, the Board concluded that
the meat-department unit had become inappropriate by July
15, 2000 – the date the Jacksonville store completed the
conversion – and that Wal-Mart therefore has no duty to
bargain with the Union over an employment contract. But the
Board concluded that Wal-Mart must bargain over the effects
of the conversion and had committed an unfair labor practice
by refusing the Union’s request to do so. See 348 N.L.R.B.
No. 16, at 1-2 (2006). The Board therefore issued an order
requiring Wal-Mart to bargain with the Union regarding the
effects of the conversion and to supply the Union with
relevant information. See id. at 2.
Both the Union and Wal-Mart have petitioned for review
in this Court. The Union contends that the Jacksonville meat-
department unit is still appropriate, and Wal-Mart argues that
it has no duty to bargain with the Union over the effects of the
change in the Jacksonville meat-department operations. We
examine the Board’s decisions to ensure that they are rational,
consistent with the National Labor Relations Act, and
supported by substantial evidence. See Allentown Mack Sales
& Serv., Inc. v. NLRB, 522 U.S. 359, 361 (1998).
II
The Union argues that the bargaining unit of meat-
department employees remains appropriate despite Wal-
Mart’s conversion to a pre-packaged-meat operation.
In determining whether a unit is appropriate, the Board
focuses on whether the employees share a “community of
interest.” RC Aluminum Indus., Inc. v. NLRB, 326 F.3d 235,
239-40 (D.C. Cir. 2003) (internal quotation marks omitted).
The Board considers “a variety of factors, including the
employees’ wages, hours and other working conditions;
6
commonality of supervision; degree of skill and common
functions; frequency of contact and interchange with other
employees; and functional integration.” Sundor Brands, Inc.
v. NLRB, 168 F.3d 515, 518 (D.C. Cir. 1999) (internal
quotation marks omitted). Because the assessment requires a
fact-intensive inquiry and a balancing of various factors, the
Board has broad discretion in making the determination; we
have said its decision is entitled to “wide deference.” Id.
(internal quotation marks omitted); see also RC Aluminum
Indus., 326 F.3d at 240.
The Board historically treated meat-department units as
presumptively appropriate. See, e.g., Big Y Foods, Inc., 238
N.L.R.B. 855, 856 (1978); R-N Market, Inc., 190 N.L.R.B.
292, 292 & n.2 (1971). Meat-department employees
traditionally worked on large animal carcasses, and their jobs
required specialized meat-cutting skills and expertise. Over
time, meat-department employees began to work with boxed
meat, which consists of portions of carcasses that the store
receives and that meat-department employees then cut and
package for sale. See Scolari’s Warehouse Mkt. Stores, Inc.,
319 N.L.R.B. 153, 155 (1995). In recent years, however, pre-
packaged meat has become much more common; stores
receive the meat already prepared for sale, and employees no
longer need or use meat-cutting skills.
As the industry has evolved, the Board has abandoned the
presumption of appropriateness for meat-department units.
Instead, the Board applies its ordinary community-of-interest
test. Applying that test, the Board has made clear that use of
specialized meat-cutting skills by meat-department employees
is central to the appropriateness of a meat-department unit.
See Wal-Mart Stores, Inc., 328 N.L.R.B. 904 (1999);
Scolari’s Warehouse, 319 N.L.R.B. 153. Indeed, it is
“difficult to find a precedent in which the Board found a meat
7
department unit appropriate when no meat cutting took place
there.” Wal-Mart Stores, Inc., 348 N.L.R.B. No. 16, at 23
(2006).
The evolution of Wal-Mart’s Jacksonville meat
department has mirrored the general trend in the industry.
Before 2000, the Jacksonville meat-department employees
used specialized and distinctive cutting skills and spent about
85 percent of their time handling and cutting boxed meat. In
January 2000, the Board’s Regional Director therefore found
that the meat-department employees shared a community of
interest separate from other store employees and constituted
an appropriate bargaining unit.
The Jacksonville Wal-Mart’s July 2000 conversion to a
pre-packaged-meat operation eliminated the need for meat-
department employees to exercise any meat-cutting skills –
or, indeed, to cut any meat at all. Instead of using “highly
specialized meatcutting skills on a routine and constant
basis,” the employees now receive small, pre-wrapped meat
packages and place them on the proper shelves. Wal-Mart
Stores, Inc., Decision and Direction of Election (Case 16-RC-
10168) at 11 (2000), Joint Appendix (“J.A.”) 207. “In
essence, the Jacksonville store’s meat department employees
now do stocking.” Wal-Mart Stores, Inc., 348 N.L.R.B. No.
16, at 23.
Because the Jacksonville meat-department employees no
longer engage in specialized meat-cutting, the Board
concluded that the meat-department bargaining unit no longer
is appropriate. See id. at 22-23. In light of the facts and the
Board’s precedents on meat-department employees, we think
the Board’s decision was entirely reasonable and find no basis
to disturb it.
8
The Union emphatically argues that the meat-department
unit nonetheless remains appropriate because (1) under Wal-
Mart’s corporate structure, the meat department is still
separate from the general-merchandise division; (2) meat-
department employees continue to spend most of their work
time in the meat department selling meat, which employees
from other departments do not sell; (3) no employee lost pay
as a result of the conversion; and (4) no employee was
transferred out of the meat department. But the Board found
that, in the absence of specialized meat-cutting skills, those
factors were insufficient to establish a separate community of
interest for meat-department employees. We cannot say the
Board’s analysis was unreasonable: It is surely appropriate
for the Board to take account of the technological changes
that make specialized skills unnecessary and thereby render
inappropriate a bargaining unit that is premised on
employees’ possessing those skills.
Apart from the merits, the Union also raises a procedural
point, but it requires little discussion. The Union argues that
Wal-Mart may not re-litigate the appropriateness of the
bargaining unit in the unfair labor practice proceeding, absent
changed or special circumstances. The Board reasonably
found, however, that the conversion of the meat department
constituted changed or special circumstances, thereby
allowing Wal-Mart to contest the unit determination in the
unfair labor practice proceeding. See Wal-Mart Stores, Inc.,
348 N.L.R.B. No. 16, at 21-23; see also Frito-Lay, Inc., 177
N.L.R.B. 820, 821 (1969); Super K-Mart, 322 N.L.R.B. 583,
583 n.3 (1996).
In sum, the Board carefully followed its meat-department
precedents and reasonably determined that the Jacksonville
meat-department unit no longer is appropriate because the
employees no longer use specialized meat-cutting skills. The
9
Union’s various arguments to the contrary are unavailing. We
therefore deny the Union’s petition for review.
III
We turn now to Wal-Mart’s petition. Wal-Mart
challenges the Board’s requiring it to bargain with the Union
over the effects of the conversion on the meat-department
employees. As we have broken down the component parts of
Wal-Mart’s argument, we discern four questions:
First, does Wal-Mart have a duty to engage in effects
bargaining with respect to the conversion of the meat
department? The Board said yes. Under Board precedent,
when a plant closes, the employer has a duty to bargain over
the effects of the closing. See First Nat’l Maint. Corp. v.
NLRB, 452 U.S. 666, 681-82 (1981). The Board found that
Wal-Mart’s conversion to a pre-packaged-meat operation was
analogous to a plant closing because the conversion, like a
plant closing, eliminated the bargaining unit. The Board
therefore concluded that Wal-Mart must bargain with the
Union over the effects of the conversion. Notwithstanding
Wal-Mart’s various attempts to distinguish those plant-closing
precedents, the Board quite reasonably relied on them in this
conversion case.
Second, does Wal-Mart’s duty to engage in effects
bargaining continue even after the meat department’s
conversion rendered the bargaining unit inappropriate? The
Board again said yes, relying again on the analogy to the
plant-closing cases. An employer’s duty to bargain over the
effects of a plant closing continues even after the closing: As
the Board indicated, when a plant closes, an employer cannot
escape its effects bargaining duty simply by saying “No one
works here anymore; the bargaining unit has disappeared.”
10
348 N.L.R.B. No. 16, at 20 (2006); see also First Nat’l Maint.
Corp. v. NLRB, 452 U.S. at 681-82; Freedman Die Cutters,
Inc., 340 N.L.R.B. 422, 423 (2003); West Coast Sch., 208
N.L.R.B. 725, 725-27 (1974). The Board therefore
reasonably relied on the plant-closing precedents to find that
the conversion did not extinguish Wal-Mart’s duty to bargain
over the effects of the conversion.
Third, does Wal-Mart’s duty to engage in effects
bargaining apply even if the Union did not demand effects
bargaining before the July 15, 2000, conversion of the meat
department? The problem for Wal-Mart is that the factual
premise is incorrect: The Union first demanded effects
bargaining back in March 2000 after it learned of the
conversion plan, well before the actual July 15 conversion. It
repeated that demand several times; each time, Wal-Mart
refused to bargain. Because the Union requested effects
bargaining beginning in March 2000, we need not consider
how this case would come out if the Union had not demanded
effects bargaining before July 15, 2000; Board counsel
candidly acknowledged the difficulty of that question. See Tr.
of Oral Arg. at 18 (“That would present a much more difficult
case . . . .”).2
Fourth, does Wal-Mart’s duty to engage in effects
bargaining apply given that the Union was only elected, and
not yet certified, before the July 2000 conversion that
rendered the meat-department unit inappropriate? The Board
said yes: Under its relation-back precedents, the Board
2
Contrary to Wal-Mart’s suggestion, moreover, it had
adequate notice in the Board proceedings of the temporal scope of
the effects bargaining charge. See Complaint at 4-5, J.A. 163-64;
Joint Exhibit 1 (March 2000 Union Letter), J.A. 399; cf. United
Packinghouse, Food & Allied Workers Int’l Union, AFL-CIO v.
NLRB, 416 F.2d 1126, 1134 n.12 (D.C. Cir. 1969).
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ordinarily considers a union the elected representative of a
bargaining unit as of the date of its election, not the date of its
certification. If the Board “rejects the employer’s objections
and certifies the union, the employer’s duty to bargain relates
back to the date of the election . . . .” Mission Foods, 350
N.L.R.B. No. 36, at 11 (2007). An employer therefore can
commit an unfair labor practice by ignoring lawful bargaining
demands during the period between election and certification.
See, e.g., Timsco Inc. v. NLRB, 819 F.2d 1173, 1180 (D.C.
Cir. 1987) (noting the “existence of extensive Board
precedent suggesting that the duty to bargain often runs from
the date of election rather than certification”); Dow Chem. Co.
v. NLRB, 660 F.2d 637, 654 (5th Cir. 1981); Mike O’Connor
Chevrolet-Buick-GMC Co., 209 N.L.R.B. 701, 703 (1974).
Here, the Board reasonably applied its relation-back doctrine
and did not carve out an exception for cases in which a union
becomes inappropriate at some point between election and
certification. The Board therefore reasonably found that the
Union was protected against certain unfair labor practices –
such as Wal-Mart’s refusal to engage in effects bargaining –
from the time of the February 2000 election.
In sum, the Board reasonably applied its precedents in
finding that Wal-Mart committed an unfair labor practice by
failing to engage in effects bargaining with the Union. We
therefore deny Wal-Mart’s petition for review.3
3
Wal-Mart also argues that the Union election was invalid
because Union officials allegedly gave an illegal gratuity to an
employee. The Board reasonably rejected this argument, and we
need not discuss it further.
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***
We deny the petitions for review and grant the Board’s
cross-petition for enforcement.
So ordered.