                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 01-4079
NATIONAL LABOR RELATIONS BOARD,
                                                      Petitioner,
                               v.

DEUTSCHE POST GLOBAL MAIL, LTD., formerly known
as Yellowstone International Mailing, Inc., a wholly
owned subsidiary of Deutsche Post AG,
                                              Respondent.
                      ____________
               Petition for Enforcement of an Order
              of the National Labor Relations Board
                Nos. 13-CA-39347 and13-RC-20399
                        ____________
 ARGUED SEPTEMBER 9, 2002—DECIDED JANUARY 13, 2003
                   ____________


  Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. This case arises out of a lesser-
known November 2000 election dispute, one that requires
no mention of butterfly ballots or hanging chads. In fact,
respondent Deutsche Post Global Mail, Ltd., formerly
Yellowstone International Mailing, Inc., doesn’t dispute the
results of the election, arguing instead that the election
should not have been held at all. The National Labor Rela-
tions Board claims the election was valid and seeks enforce-
ment of its order requiring Deutsche Post to recognize and
bargain with the Union, put any agreement reached with
2                                                No. 01-4079

the Union into writing, and post a notice of the Board’s
findings at the Deutsche Post plant.
  In April 1999, Deutsche Post AG acquired Yellowstone,
which sorted, handled, and delivered a variety of corporate
and bulk mail and other items to international destina-
tions. In July of the following year, the Union filed a rep-
resentation petition with the NLRB. At the time, 113 plant
employees fit the petition’s unit description.
  At an August 2000 hearing before Region 13 of the NLRB,
Yellowstone argued that the representation petition was
premature because of impending changes to the bargain-
ing unit. Within three months, Yellowstone planned to
move from its Pratt Boulevard facility to a new Brummel
Road facility that was a mile and a half away and had more
than three times as much production space. Deutsche Post
intended to merge Yellowstone with its other American
subsidiaries, with the Brummel Road facility becoming
Deutsche Post’s Midwestern hub. Deutsche Post projected
the Brummel Road facility would have 150-160 employees
by the end of November 2000 and over 300 employees by
the end of the first quarter of 2001.
   Deutsche Post planned to offer employment at the new
plant to all Yellowstone employees. Although some of the
hub’s anticipated business was expected to involve different
combinations of sorting and shipping than had taken place
at the Pratt Boulevard plant, the projected workforce would
not need any substantially different job skills than those
already possessed by the Yellowstone workforce, nor would
it include any job classification not already filled at Yellow-
stone.
  The Regional Director found the Union’s petition for an
election to be inappropriate given Yellowstone’s planned
move. The NLRB overruled the decision and ordered the
election, which took place on November 15 and 16, 2000.
The Union won, 58 to 29. The Board certified the Union as
No. 01-4079                                               3

the collective-bargaining representative of the Yellowstone
unit on March 15, 2001, one month after Deutsche Post AG
merged Yellowstone with its other American subsidiaries to
form Deutsche Post Global Mail, Ltd.
  The Board found that the company’s refusal to bargain
with the Union violated sections 8(a)(5) and (1) of the Na-
tional Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1).
Deutsche Post admits it refused to recognize and bargain
with the Union, but claims the certification was invalid be-
cause the timing of the election was inappropriate. There-
fore, we need to determine simply whether the Board rea-
sonably ordered the November 2000 election.
  The Board’s findings are conclusive if supported by “sub-
stantial evidence on the record considered as a whole.” 29
U.S.C. § 160(e). Evidence is substantial when a reasonable
mind might accept it as adequate to support the Board’s
conclusion. Uniroyal Tech. Corp. v. NLRB, 98 F.3d 993, 998
(7th Cir. 1996). Therefore, we accept the Board’s reasonable
inferences even though we might justifiably have reached
a different conclusion had we looked at the matter de novo.
See NLRB v. P*I*E Nationwide, Inc., 923 F.2d 506, 513 (7th
Cir. 1991).
  When a company has plans to relocate or expand, an
immediate election is appropriate if the present workforce
constitutes a “substantial and representative complement”
of the employer’s reasonably foreseeable future workforce.
See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S.
27, 47 (1987). In its attempt to balance the “insurance of
maximum employee participation in the selection of a
bargaining agent” with “permitting employees who wish to
be represented as immediate representation as possible,”
Fall River Dyeing, 482 U.S. at 48 n.15 (quoting Clement-
Blythe Cos., 182 NLRB 502, 502), the Board has avoided
setting hard and fast rules for determining whether a sub-
stantial and representative complement exists, instead
4                                               No. 01-4079

applying a case-by-case approach. See, e.g., NLRB v. AAA
Alternator Rebuilders, Inc., 980 F.2d 1395, 1399 (11th Cir.
1993); Toto Indus., 323 NLRB 645, 645. Factors to be
considered in determining when a bargaining unit consti-
tutes a substantial and representative complement of em-
ployees include, among others, the size of the employee unit
at the time of the hearing; the projected size of the post-
expansion unit; the extent to which the projected additional
jobs represent separate and distinct skills or functions; and
the time expected to elapse before the planned reorganiza-
tion. See, e.g., NLRB v. Asbury Graphite Mills, Inc., 832
F.2d 40, 42-43 (3d Cir. 1987).
  In this case, it is not clear what proportion of the post-
reorganization unit voted. The Board, taking the plant’s
113 workers at the time and estimating a future workforce
of 300, found the current workforce to be 38 percent of the
projected one. The Board has found that proportion suffi-
cient to constitute a substantial and representative comple-
ment where, as here, all of the ultimate types of jobs were
represented. See, e.g., Custom Deliveries, Inc., 315 NLRB
1018, 1019 n.8 (1994) (noting general trend that election is
appropriate if current employees are 30 percent of the
projected workforce and 50 percent of the eventual job
classifications are filled). Deutsche Post claims the 38 per-
cent estimate required too much speculation and is too
high.
  First, relying on Cooper International, Inc., 205 NLRB
1057 (1973), Deutsche Post claims the Board erred by as-
suming that most of the Yellowstone employees would
accept job offers at the new plant. According to Deutsche
Post, Cooper precludes speculation into the number of em-
ployees who will accept post-reorganization offers of em-
ployment until after those offers are made. As a result,
Deutsche Post argues, the Board should not have ordered
the election because there was no way for it to know
No. 01-4079                                                5

whether the existing workforce constituted a substantial
and representative complement of the proposed workforce.
  Simply put, Deutsche Post reads Cooper too broadly. In
that case, the new plant was more than 18 miles away from
the old one, few of the employees had cars, and there was
no available public transportation. Because it had reason to
believe that many of the workers would not move to the
new plant, the Board declined to speculate as to the num-
ber of employees who would accept employment offers.
  Here, as the Board noted, the “strikingly different facts”
make such speculation much more reasonable. The new
plant is just 1.5 miles away, and the transportation prob-
lems in Cooper are not present. Given that the nature of the
work will not change, the company offered no reason to
think that the vast majority of Yellowstone employees
would not accept employment offers at the new plant.
Therefore, the Board’s speculation was reasonable. See AAA
Alternator Rebuilders, Inc., 980 F.2d at 1399 (“[Cooper]
does not establish an exclusive and dispositive means for
the exercise of discretion by the Board in implementing its
case-by-case approach.”).
  Deutsche Post argues that allowing the Board discretion
and some speculation will make it hard for employers to
foresee whether elections are appropriate. However, that’s
a small cost of any balancing system. The whole point of
the case-by-case analysis is to weigh the many factors
unique to any given situation, and setting hard and fast
rules such as the one Deutsche Post suggests takes away
that freedom.
  Second, Deutsche Post argues the Board erred by esti-
mating the future workforce to be 300 workers. Yellowstone
president Vic Schiegg said the new plant would have
“300 plus” employees but did not offer a precise number.
Deutsche Bank suggests Yellowstone’s workforce likely
will triple since the new plant will have over three times as
much production space.
6                                              No. 01-4079

  Given the lack of concrete evidence as to the ultimate
number of employees, the Board reasonably estimated the
future workforce to be 300. Yellowstone simply failed to
provide evidence of a more accurate prediction. Moreover,
even if it estimated the future workforce to be 339, as
Deutsche Post suggests, the Board reasonably could have
found that the current workforce constituted a substantial
and representative complement of the proposed one. See
Asbury Graphite Mills, 832 F.2d at 43 (enforcing Board
order for an immediate election where vote included 13 of
a projected 30 to 40 employees); Gerlach Meat Co., 192
NLRB 559 (1971) (35 percent of employees performing 50
percent of job classifications constituted a substantial and
representative complement of proposed workforce).
  Because we find its decision to order the election to be
supported by substantial evidence, the Board’s petition for
enforcement of its order is GRANTED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




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