USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 95-1733

SULLIVAN BROTHERS PRINTERS, INC.,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

____________________

No. 96-1098

LOCAL 600M, GRAPHIC COMMUNICATION

INTERNATIONAL UNION, AFL-CIO, CLC,

Petitioners,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

____________________

SULLIVAN BROTHERS PRINTERS, INC.,

Intervenor.

____________________

ON PETITIONS FOR REVIEW AND CROSS-APPLICATION

FOR ENFORCEMENT OF AN ORDER OF
THE NATIONAL LABOR RELATIONS BOARD

____________________

Before

Torruella, Chief Judge,

___________

Campbell, Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

_____________________

Robert P. Corcoran,
___________________

with whom

Gleeson & Corcoran was

___________________

brief for petitioner Sullivan Brothers Printers, Inc.

on

Anton G. Hajjar, Adrienne L. Salda a and O'Donnell, Schwartz

_______________ ___________________
___________________
& Anderson, P.C. on
_________________
Communications

brief for petitioners

International Union,

Local 600M,

AFL-CIO,

CLC

and

Graphic

Graphic

Communications International Union, AFL-CIO, CLC.

David A. Fleischer, Senior
__________________

Attorney, with whom Frederick L.

____________

Feinstein, General Counsel, Linda Sher, Associate General Counsel

_________
__________
and

Aileen A. Armstrong,
____________________

National Labor

Deputy

Relations Board

Associate

were on

General

brief for

Labor Relations Board.

____________________

November 5, 1996
____________________

Counsel,

the National

-2-

TORRUELLA, Chief Judge.

TORRUELLA, Chief Judge.
___________

Petitioner-Appellant Sullivan

Brothers Printers, Inc. ("Sullivan"), appeals the decision of the

National

Labor

Relations

finding that Sullivan

Board

(the "NLRB"

or

the

committed an unfair labor practice.

600M of the Graphic Communications International Union

AFL-CIO,

requested.

appeals the

"Board")

Board's

refusal to

order

("GCIU"),

the remedy

For the reasons stated herein, we affirm.

BACKGROUND

Local

it

BACKGROUND

We

detail.

38

have

previously

addressed this

dispute

in

some

See Pye v. Sullivan Bros. Printers, Inc. ("Sullivan I"),

___ ___
_____________________________
__________

F.3d 58 (1st Cir. 1994) (affirming district court's denial of

the Board's

request for a preliminary

Sullivan recognize

and bargain

rather than delve into the

injunction requiring that

with Local 600M).

Accordingly,

facts of this case, we begin

with an

outline of the dispute, and address more specific details as they

arise.

For

GCIU Local

109C represented

Sullivan's pressmen, and Local 139B represented

its bookbinders.

As

of 1990,

over

three decades,

Sullivan's pressmen

small minority in each local:

of each

local .

. . worked

and bookbinders

represented a

"The vast majority of

at another printing

the members

company, North

American

Directory Corporation ('NADCO')."

however, NADCO

had closed

locals' membership.

roughly

10

Local

all

from

By 1993,

its plant, dramatically

reducing the

109C was left with about

40 members,

15 of whom were from Sullivan,

members,

Id. at 60.
___

Sullivan.

-3-

and Local 139B with 8 to

Henry

Boermeester

("Boermeester"),

president

("Becht"), president

to

explore

of

Local

109C,

of Local 139B, both

the possibilities

of

merging

and

Oscar

Becht

NADCO employees, began

or transferring

the

locals.

Accordingly, in January of 1993, the Local 109C members

voted to

surrender

their charter

which had some 700 members.

in March.

and transfer

to Local

The Local 139B members did the same

Id. at 60-61.
___

In July of 1993,

Local 600M formally notified Sullivan

of the changes and

asked Sullivan to recognize and

it.

contract with Sullivan

Local 139B's

August of 1993,

1995.

600M,

but Local

bargain with

was due to

109C's was effective

expire in

through May

of

Beginning in July, 1993, Sullivan began to take unilateral

actions,

which Local 600M points

to as unlawfully altering some

of the terms and conditions of employment in the bookbinders' and

pressmen's units.

Sullivan informed Local 600M in early August,

1993, that it would not recognize Local 600M, and that it did not

consider itself bound by the transfer.

Id. at 62.
___

Local 600M responded by filing an unfair labor practice

charge

with the Board. The Board issued an unfair labor practice

complaint charging Sullivan with violations of the National Labor

Relations

Act

(the

"Act")

for

unilaterally changing the terms

violation

U.S.C.

of sections 8(a)(1)

158(a)(1) & (a)(5).1

refusing

to

bargain and

and conditions of employment, in

and 8(a)(5) of

the Act.

Under

See 29
___

The Board petitioned the district

____________________

for

8(a) of the Act,

[i]t shall be an unfair labor practice for an

-4-

court

for

temporary

recognize and bargain

the

unilateral

injunction,

injunction

with Local 600M and

changes.

stating

requiring

that

The

"'a

Sullivan

rescinding certain of

district

question

that

court

exist[ed]

denied

the

as

the

to

continuity of representation provided by Local 600M,'" id. at 62,

___

and a panel of this court affirmed in October, 1994.2

Id.
___

In the

meantime, an

conducted a hearing

ALJ found

administrative law judge

and issued his decision in July,

that Sullivan had not violated

recognize Local 600M as

1994.

The

the Act by refusing to

the successor to 139B, but

it by refusing to recognize Local 109C.

("ALJ")

had violated

The NLRB, in turn, found

that Sullivan had violated the Act by refusing to recognize Local

____________________

employer --

(1)

to

interfere

coerce employees

with,

restrain,

in the exercise

rights guaranteed in section 157

or

of the
of this

title;
***
(5)
with

to

refuse
the

to bargain

representatives

employees, subject to

158(a)(1) & (a)(5).

of

the provisions

section 159(a) of this title.

29 U.S.C.

collectively
his
of

In Sullivan I, we concluded
___________

that "the transfer

of [L]ocals

139B and 109C to 600M exhibited no combination of characteristics

on which the Board has typically based a finding of continuity in

the past."

Sullivan I, 38
__________

holding today affirming the

conclusion than
reviewing
pursuant to

an

F.3d at 67.

We recognize that

our

Board's decision reaches a different

in our earlier decision.

interlocutory appeal

section 10(j) of the

for
Act.

In that
a

case we were

temporary injunction

See 29
___

U.S.C.

160(j).

Such a proceeding is independent of the proceeding on the merits,

and therefore our
context of

decision in Sullivan I is not binding

___________

this appeal.

See
___

in the

NLRB v. Kentucky May Coal Co., 89

____
______________________

F.3d 1235, 1239-40 (6th Cir. 1996) (collecting cases).

-5-

600M as the

successor to

both Locals, and

recognize and bargain with Local

600M.

Inc. ("Sullivan II"), 317 N.L.R.B.

____
____________

Sullivan petitioned

for review,

motion to transfer the

Appeals for

ordered Sullivan

Sullivan Bros. Printers,

________________________

561, 1995 WL

318651 (1995).

this court granted

the Board's

proceeding to the United States

the District of

transferred the proceeding

Columbia Circuit, and

back to

this court.

I.
I.

Sullivan
Sullivan
________

Court of

that Circuit

The Board

filed a cross-application for enforcement of its order.

DISCUSSION
DISCUSSION

to

has

Sullivan contends that we

should set aside the Board's

order.

At

heart,

is

transfer

of

Locals 139B

bargaining

its

argument

and

relationship,

109C

giving

that the

administrative

interrupted the

rise

to

collective

question

of

representation, such that Local 600M must establish its status as

a bargaining representative through the same means that any labor

organization

must

use

in the

first

instance.

See NLRB
___ ____

v.

Insulfab Plastics, Inc., 789 F.2d 961, 964-65 (1st Cir. 1986).
_______________________

"The

certified

Act

bargaining

circumstances,"

recognizes

that

employee

representative may

NLRB v.
____

be

support

eroded by

for

changed

Financial Inst. Employees of America,

_______________________________________

Local 1182 (Seattle-First Nat'l Bank), 475 U.S. 192, 197 (1985),
_____________________________________

such

as the administrative transfer here.

In order to determine

whether a particular

change "interrupts

bargaining relationship, the Board asks:

or

transfer

vote

occurred

under

an existing

(1)

collective

whether the merger

'circumstances

satisfying

-6-

minimum

due

continuity'

process' and

between

(2)

whether

there was

the pre- and post-merger

'substantial

union."

Sullivan
________

I,
_

38

F.3d

Berkeley,
________

at 64

306

(quoting

N.L.R.B.

893,

News/Sun-Sentinel Co., 290

______________________

F.2d

Southwick Group d/b/a Toyota of

__________________________________

N.L.R.B.

899,

(1992)

1171 (1988),

(quoting

enforced 890
________

430 (D.C. Cir. 1989), cert. denied, 497 U.S. 1003, (1990)),
____________

vacated in part,
_________________

In the Matter of Nancy Watson-Tansey,

_______________________________________

313

N.L.R.B. 628 (1994)) (additional citations omitted).

"Whether

question

of representation

factual issue to be

determined by the Board."

Coop.
_____

F.3d 390,

v.

NLRB, 32
____

393 (8th

Cir.

exists

is

Minn-Dak Farmers
________________

1994).

"We will

enforce a Board order if the Board correctly applied the law

if

substantial

factual

evidence

findings."

on

the record

supports

Union Builders, Inc. v. NLRB,

_____________________
____

the

and

Board's

68 F.3d 520,

522

(1st Cir. 1995).

scintilla.

Substantial evidence is "'more than a mere

It means such relevant evidence as a reasonable mind

might accept

as adequate

Papers, Inc.
_____________

v.

to support a

NLRB, 706
____

F.2d

18,

conclusion.'"

Penntech
________

22

(quoting

(1st Cir.)

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)), cert.
_______________________
____
_____

denied,
______

464 U.S.

Sullivan's

892

(1983).

We

begin

challenge to the Board's finding

then turn to

our

analysis

with

of due process, and

the issue of whether substantial continuity existed

here.

A.
A.

Sullivan

the ALJ's

Due Process
Due Process
___________

contends that the

determination and

Board erred

finding that the

in overruling

voting procedures

-7-

employed by Local 139B in electing to surrender their charter and

transfer to Local 600M

It

satisfied minimal due process standards.3

is established that the balloting

need not conform to Board standards.

at 204.

Generally,

the Board

procedures a union follows

See Seattle-First, 475 U.S.

___ _____________

will look

for such

due process

safeguards as "notice of the election to all members, an adequate

opportunity for

members to discuss the

election, and reasonable

precautions to maintain ballot secrecy."

of establishing lack of adequate

Id. at 199.
___

The burden

due process lies with Sullivan.

See News/Sun Sentinel Co. v. NLRB,

___ ______________________
____

890 F.2d 430, 433

n.4.

For

the reasons set forth below, we find it has not met that burden.4

Here, on the day

Local

the day

139B, passed out

shift, leaving

of the vote, Becht, the

ballots to the five

three or

another employee for distribution

shift.

to

He informed them that

pick up

the ballots,

When he collected

four

president of

or six employees on

additional ballots

to the employees on

with

the night

he would return the following day

which were

the sealed envelope,

collected in

an envelope.

he found eight

ballots,

____________________

Sullivan

finding

does not challenge the Board's adoption of the ALJ's

that

the election

carried out

by

Local 109C

did not

violate the minimal due process requirement.

Local 600M and the GCIU, as joint intervenors, raise the issue

of whether the
Board's

imposition of voting

statutory power.

(declining

to reach

however, we need not

the

requirements is beyond

See Seattle-First, 475 U.S. at 199 n.6

___ _____________
issue).

Like

the Board

address whether the NLRB has

before

rate been met

here.

See
___

Sullivan II, 317

___________

1995 WL 318651 at *9 n.2.

-8-

us,

the authority

to impose due process requirements, as such requirements

any

the

have at

N.L.R.B. at __,

all cast in favor

of the merger.

No objection was raised by the

members as to the merger vote process.

The Board concluded

was met in this

five

after

case.

informal meetings

the

NADCO

negotiations,

relied

First, it

with

closure,

requirement

found that Becht held

informing

them

Local 139B

of

the

week before the

members

of

vote that he

with his

Second, as for the vote itself, the Board

on the lack of any evidence

with

four or

status

the ballots, a procedure consistent

practice.

fact accomplished

due process

the remaining

and notified them a

would bring around

established

that the

that the election was not in

adequate procedural

safeguards,

noting

that

Becht knew

members,

that all

of the

employees were

that he personally distributed

current union

the ballots to the day-

shift employees, and that there was no evidence that the ballots'

secrecy was

compromised.

important[ly],

objected

at the

vote

Third,

there [was]

no

the Board noted

indication

that, "[m]ost

that any

individual

to the voting procedures or any aspect of merger either

time of the

did not

vote or any

reflect

N.L.R.B. at __,

time subsequently, or

the majority

1995 WL 318651

view."

at *4.

that the

Sullivan II,
____________

Accordingly, the

317

Board

concluded that its standard of minimal due process was satisfied,

emphasizing

again "that this case

locals and that no one objected."

The Board accepted

involves the merger of sister

Id.
___

Becht's testimony

about the

union

membership

Board

status

of Sullivan's

employees.

In so

doing, the

stated that, unlike the Board, the ALJ had "questioned the

-9-

basis

for

status

of

Becht's

knowledge concerning

the Respondent's

foundation.'"

Id.
___

at 3

unit

n.4.

the

union

membership

employees

as being

According to

the

acceptance of Becht's testimony about union

'without

Board,

its

membership therefore

ran contrary to the

Board

erred

contends,

in

when

drawing

the ALJ

testimony he was in

testimony about

'he'

ALJ's conclusion.

Sullivan argues

this conclusion.

discussed

the

his "'belief' that

just handed the ballots

responsible to collect them."

WL

herring.

318651

at *15.

Sullivan

foundations of

Becht's

Becht's

someone referred to

out without checking

only as

names off at

them out at night was

Sullivan II, 317 N.L.R.B.

___________

This

purported error

proves

at __,

a red

Contrary to Sullivan's position, the ALJ did comment on

the lack of foundation

who voted were

this is

Instead,

fact concerned with another issue:

night and that the 'individual' who passed

1995

that the

for Becht's statement that the

all union

unexplained."

Id.
___

members, stating that

Thus the Board's

employees

"[h]ow he

knew

statement was not

inaccurate.

What

is

more, even

if

it were

misstatement,

Sullivan has pointed to no grounds for us to question the Board's

acceptance

of "the

testimony."

veteran Local 139B

officer's uncontroverted

Id. at *9 n.4.
___

Second, Sullivan questions the

fact

that

sealed

with

when Becht

envelope, with

or

their secrecy

retrieved the

no evidence

compromised.

Board's reliance on the

ballots

they were

that they had

-10-

been tampered

Sullivan argues

ALJ's reasoning was more persuasive when he stated:

in the

that the

[a]lso left devoid of any informative answers

are significant questions
of

the

envelope

from

delivered to employees
Becht at noon

of who had custody

the

time

it

was

and then returned

the following day, if

to

anyone;

where it was kept, and whether any safeguards

whatsoever
and

reasonably protected

reliability of

course of the day

the

the secrecy

ballots during

the

and a half consumed before

Becht arrived and the ballots were tallied.

Id. at *15.
___

Sullivan maintains that the ALJ's concerns were more

probative as to the

whether or

disagree.

impropriety,

not

secrecy and integrity of the

the ballots

Simply

put, the

and mere

were

in

burden

assertions that

a sealed

is

on

balloting than

envelope.

Sullivan to

tampering

We

prove

was possible,

without evidentiary support

requirement.

("[A]n

See
___

can

affirmative

an evidentiary

shift

to

proof of

that the Board

the

the validity

unanimous

not meet

890 F.2d

of a

at

NLRB

General

Counsel

procedural propriety.").

that

433-34

merger election

showing of irregularity

applied the law

not meet its burden.

near

record, does

News/Sun Sentinel Co.,

______________________

employer challenging

must provide

burden

in the

We

before the

to

provide

cannot find

incorrectly where Sullivan

does

Cf. Insulfab, 789 F.2d at 965-66 (upholding

___ ________

election

in 32-person

union

despite

informal

procedures).

Third,

Sullivan questions the

Board's reliance on the

fact that none of the employees objected to the voting procedure,

arguing that

even minimal due process standards

require the use

of a "more finely calibrated analysis than whether or not someone

bothered to

complain."

Sullivan continues, that

Appellant's

Brief, at

47.

Indeed,

is especially so here, because prior to

-11-

the

merger no Local 139B

active in the

member showed an

union, indicating

interest in becoming

that the lack

just as likely to indicate apathy as approval.

of objection

is

We are once again

unconvinced.

The Board did not rely

employee objected:

week's

notice of

meetings

that

the

dispositive,

the

election, that

were

they

held four

and that there

tampered

with.

or

five

was no evidence

While

it

is

not

the fact that none of the eight employees who voted

complained supports

789 F.2d

it also found that the employees were given a

to discuss the change,

ballots

solely on the fact that no

the Board's

961, 966 (1st

finding.

Cir. 1986)

See,
___

e.g., Insulfab,
____ ________

(noting that no

one in

the

bargaining unit opposed the results of an affiliation election in

upholding the Board's finding of due process); Aurelia Osborn Fox

__________________

Memorial Hosp., 247 N.L.R.B. 356, 1980 WL 11045, at *5 (same).

______________

B.
B.

Substantial Continuity
Substantial Continuity
______________________

Having established that

did

not

violate due

continuity prong of

Local 139B's voting

process, we

the test.

turn

now to

The focus in

procedure

the substantial

this second step is

on whether the administrative transfer "substantially changed the

union."

Seattle-First, 475 U.S. at 199.

_____________

determination,

factors,

the

including

officers, assets,

NLRB
____

Board

the

traditionally considers

union's

membership,

"structure,

autonomy, by-laws,

v. Pearl Bookbinding Co.,

______________________

517 F.2d

1975), as well as any changes "'in the

the union's

In making its factual

number of

administration,

[and]

1108, 1111

size,"

(1st Cir.

rights and obligations of

leadership and membership, and

-12-

in the relationships

between

the putative

bargaining agent,

its affiliate,

and the

employer,'" Insulfab, 789 F.2d at 966 (quoting J. Ray McDermott &

________
__________________

Co. v. NLRB, 571 F.2d 850, 857 (5th Cir.), cert. denied, 439 U.S.
___
____
____________

893 (1978)).

does

not

instead,

run

Nonetheless, "[i]n assessing

down

the Board

a checklist

considers

News/Sun Sentinel Co.,

_____________________

Inc., 264

890 F.2d

of

'certain

'the totality

at 315

N.L.R.B. 1237, 1250 (1982)).

continuity, the NLRB

cited criteria';

of a

situation.'"

(quoting Yates Indus.,

______________

The burden is

again on

____

Sullivan to prove lack of continuity.

News/Sun Sentinel Co., 890

_____________________

F.2d at 315.

Sullivan argues that the Board incorrectly

applied the

law and relied upon findings of fact not supported by substantial

evidence

Locals

in holding

that substantial continuity

139B and 109C and Local 600M.

exists between

We turn now to the merits

of this claim.

1.
1.

Local 139B:
__________

elected or appointed

Leadership Responsibility
Leadership Responsibility

No

former Local 139B

position in

Local 600M.

official holds

The Board

that the only remaining Local 139B officers, President Becht

Jeannette Pickels, were both

an

found

and

offered and declined positions with

Local 600M

after the

merger.

The

Board also found

that Becht

agreed

to serve on Local 600M's negotiating committee, a role he

played

prior to the merger.

would be accomplished

by the

Sullivan employee, as was true

The Board

noted that negotiations

union's president, who

in the past.

was not

Thus, according

to

the Board, the lack of continuity in leadership was caused by the

-13-

free

choice

continuity

of

in

the

the

leaders

form

themselves,

of

Becht's

and

there

participation

was some

on

the

negotiating committee.

We

role

find that the

is not supported by

Board's conclusion regarding Becht's

substantial evidence.

Both Becht and

the

president of Local 600M testified that Becht had agreed that

"if

he was

couldn't

available, he'd

commit."

1994, p. 265).

committee

describes.

be delighted

(Transcript

to

be there,

of hearing before

Thus, the commitment to serve on

but he

NLRB, Feb. 3,

the negotiating

was tentative at best, and not the agreement the Board

See
___

Sullivan I,
__________

38 F.3d

at 65.

Accordingly,

Board's conclusion that Becht "will continue to perform

leadership role

with respect to the

the

the same

[Local 600M's] negotiations

with Respondent," Sullivan II, 317 N.L.R.B. at __, 1995 WL 318651

___________

at *5,

is also

without a

Becht's tentative

the

foundation

role in

the negotiation process,

fact that no Local 139B

Local

600M,

leadership.

213720,

precludes

of

represented

procedures

finding

(1988) (viewing

whether

by

the

the

same

evidence.

paired with

officer has an official position in

substantial

continuity

See Garlock Equip. Co., 288 N.L.R.B.

___ ___________________

at *11

function

in substantial

continuity of

unit's

employees

officers,

and with a degree

who

are

in

247, 1988 WL

leadership as

continue

operating

of autonomy similar

to

be

under

to that which

they had earlier).

Whether a union "[r]etain[s]

important,

for

'[w]hen

the

same

the same key personnel is

persons

participate

in

-14-

communications

with

the

company with

contract negotiations, and

preserved.'"

Hosp.
_____

v.

Insulfab,
________

NLRB,
____

Nonetheless,

our

621

to

the like, continuity is

789

F.2d

F.2d at

1054,

conclusion that

leadership between Local

respect

139B and

likely to be

966 (quoting

1057

there

(10th

was

grievances,

St. Vincent
___________

Cir.

1980)).

no continuity

Local 600M does

not end

of

our

analysis,

as "'there is no requirement that officers of a merged

local must

become officers of the

new local.'"

Sullivan I, 38
___________

F.3d at 65 (quoting Service Am. Corp., 307 N.L.R.B. 57,

_________________

WL 77803 at

*5 (1992)).

evidence, see, e.g.,

___ ____

The Board weighs

the totality of

Central Wash. Hosp., 303

___________________

here,

the

situation

leadership is

__,

fact

regarding

1995 WL 318651 at

lack of

continuity is not due

the

Sullivan II, 317

___________

*5, because leadership

offered to Becht and Pickels,

Universal
_________

1992), and, as it commented

continuity of

"somewhat unusual,"

the

N.L.R.B. 404, __,

1991 WL 113265 at *1 (1991), enforced sub nom. NLRB v.

_________________ ____

Health Sys., 967 F.2d 589 (9th Cir.

____________

60, 1992

Local

139B

N.L.R.B. at

positions were in

who declined them.

to Local 600M itself

Thus the

-- in fact,

the

lack

of

leadership

administrative transfer.

N.L.R.B.

571, __,

1988 WL

was

driving

See
___

Seattle-First Nat'l Bank,

__________________________

213911 at

force

*3 (1988)

behind

the

290

(noting, inter
_____

alia, that there was no evidence that replacement of officers was

____

condition

International

of

affiliation

union in

turnover in officers),

or

finding

result

of

action

substantial continuity

enforced 892
________

cert. denied, 496 U.S. 925 (1990).

____________

-15-

F.2d 792

(9th Cir.

by

the

despite

1989),

Local 109C:
__________

there

The Board adopted the

was continued

leadership

Local 109C officials.

ALJ's finding that

responsibility on

the part

The ALJ noted that the former president of

Local 109C, Boermeester,

became an elected executive board

Local

600M]

represented
employed

on
the

August
former

by Respondent

in the

a letter sent in

demanding

purchased

by

regular

chairmen

continued,

dispute over
in a

401(k)

new equipment
His

contact
with

members

28, 1993, as well

Respondent.

of

and

his official Local

bargaining over

practice

1993,

Local 109C

600M capacity on September

as

member [of

5,

Respondent's unilateral changes

plan in

of

long-time

with

regular

chapel
contacts

between [Chapel Chairman Stephen] Wysocki and

him

over

representation

employees

and

Local 600M

of

Respondent's

President Carlsen

testified credibly that the Local denoted him

for membership on

the negotiating

from

when

Local

600M

Respondent.
other

He

negotiates

represented

negotiations

employees

it

with

Local 109C

committee
with

Local 600M
employers

in

whose

previously represented

. . . .

Sullivan II, 317 N.L.R.B. at __,

___________

omitted).

retained

The ALJ

the same

merger,

and

Wysocki

will

also

be

noted

leadership

that the

1995 WL 318651 at *18 (citation

as a

chairmen

at

another

he

of Local

negotiating

contract negotiations with Sullivan.

chapel

Chapel Chairman

role that

president

used

that

had prior

600M

Finally, it found

continue in their positions under Local 600M.

109C

to

the

testified that

committee

former Local

Wysocki

member

in

that two

employer

will

Sullivan

points

out

that

contests

the ALJ's

Boermeester was

the

conclusion.

only

First, it

former Local

109C

official to hold any of the elected or appointed positions within

-16-

Local

600M -- indeed, Sullivan maintains, he was the only former

official who even became

a member of Local 600M.5

Sullivan also

relies on the testimony that Boermeester's appointment was

not a

condition

of the merger, that

it was not

was complete, that Boermeester

retain

his position,

as

unexpired term, and that

did

would have to win an

it was

temporary

election to

one to

fill

testified that

109C members.

he agreed

Sullivan adds that

to participate

in future

negotiations only if he had time

to, and that, like Becht,

in

he participated,

those negotiations

enjoy

the

same

previously.

concludes,

an

Boermeester represented a division that

not contain former Local

Boermeester

made until the merger

in which

degree of

autonomy

and

See Sullivan I, 38 F.3d at 66.

___ ___________

Boermeester's role

cannot

he would

authority

as he

even

not

had

Therefore, Sullivan

be found

to satisfy

the

continued leadership responsibility requirement.

We

found

in

Sullivan I
___________

that

"Wysocki's

continued

stewardship and Boermeester's position on

board represent

local;

some continuity

whether

doubtful."

they

deferential to the Board's

the district court

substantial

their former

continuity

is

Our standard of review here is fairly

decision, while in Sullivan I

__________

that received our deference.

(noting that we reviewed

cause

of leadership for

represent

38 F.3d at 66.

Local 600M's executive

it was

See id. at
___ ___

63

the court's determination of reasonable

for clear error, and the decision to deny equitable relief

____________________

Both Boermeester and

Wysocki testified that

109C wanted to take over running the local.

-17-

no one in Local

for

abuse of discretion).

here:

applying the

Board's finding

Local

The standard makes all the difference

pertinent

standard,

that there was continuity

109C and Local

we must

affirm

the

of leadership between

600M, notwithstanding Sullivan's argument.

Cf. City Wide Insulation, Inc., 307 N.L.R.B. 1, __, 1992 WL 75108
___ __________________________

at

*3

(1992)

(finding

substantial

continuity

of

leadership

despite fact that business manager who formerly did not report to

anyone

district

was

required to

council

report

and union

to

counsel

secretary-treasurer of

was

added to

new

negotiating

team).

to

The evidence Sullivan points to would allow a factfinder

reach

conclusions

differing

from

the

intimated in Sullivan I -- but our review

___________

Board's

--

as

we

of the record reveals

substantial evidence underpinning the ALJ findings adopted by the

Board

for

regarding Local 109C.

the Board's,

conclusion, see
___

affirm

the

2.
2.

even

We will not substitute our judgment

if we

might

have reached

Union Builders, 68 F.3d

______________

Board's

finding

in

at 522, and so

these

different

we must

circumstances.

Negotiation and Administration of Contracts

Negotiation and Administration of Contracts

Proposals
Proposals
_________

In terms

Local 109C and

of contract

proposals, the practice

Local 139B was to hold informal

of both

meetings -- at a

donut

shop

proposals.

or on

The

the shop

by-laws

floor --

of Local

suggested contract proposals must

in

writing, at least

agree

with Sullivan

where members

600M,

state that

be submitted to the president,

90 days prior to

that, on

however,

could make

its face,

contract expiration.

this is

We

a substantial

-18-

change.

Nonetheless, the

case law is

firm that

what we

must

weigh is not the

rule, but the actual

practice followed.

e.g., Central Wash. Hosp., 303 N.L.R.B. at __,

____ ___________________

*1.

See,
___

1991 WL 113265 at

Carlsen testified that the by-laws procedure was not always

strictly followed:

proposals,

sometimes Local 600M would

and sometimes

employees would

hold meetings for

send lists

that were

developed and sent back to them for approval or modification.

this record,

the

Board concluded

that

the procedure

did

On

not

differ dramatically, despite the by-laws provision.

Sullivan protests

90 day requirement

burden

here

of

continuity, and it

that there was no

was not adhered to.

demonstrating

evidence that the

But Sullivan bears

that there

was

no

the

substantial

points to nothing in the record demonstrating

that the 90-day practice was adhered to, or how far ahead of time
___

the Local 109C and

139B meetings were held.

left with evidence

that the

prior to

the contract's

that Local 600M's

old locals

In the

held meetings

expiration to collect

practice is

end, we are

sometime

suggestions, and

to sometimes hold

meetings at

point prior to expiration, and sometimes to consider lists mailed

in.

On this record, we find that Sullivan has not met its burden

and that we must affirm the Board's finding on this point.

Contract Negotiations
Contract Negotiations
_____________________

In negotiating contracts with Sullivan, the practice of

Local

as

139B was for the president and

the negotiators; most recently,

employee.

According

to

Carlsen's

a Sullivan employee to act

that had been

testimony,

Becht with an

Local

600M's

-19-

practice

would be

president, plus

there

was

employee,

use

only

to

use a

Becht as the former

no

chapel chair

if possible.

the latter

the

new

was a

from

formed of

the

local's

president, Wysocki (because

former

Local

139B), and

an

For Local 109C, the past practice was to

the local's president,

Carlsen,

committee

vice president, and

Sullivan employee.

practice would

be

to

a chapel chair:

Again

have

according to

himself as

the

president, Boermeester as the former president, Wysocki as chapel

chair, and perhaps an employee, serve on the committee.

Sullivan argues that there is no substantial continuity

here, as the primary responsibility for negotiations have shifted

from Becht (who will not necessarily even serve)

to Carlsen.

been

no

Nonetheless,

substantial

Boermeester nor

so both

we agree with the Board that there has

break

before and after the

Second,

committees,

the Sullivan

the

continuity.

First,

neither

administrative transfer Sullivan's

represented by

president.

to

in

Becht were Sullivan employees to begin with, and

employees will be

Prior

and Boermeester

on

both

a team led

by a

non-employee

the

and

post-transfer

pre-

employees do not

transfer, employees

made

make up

up

half

a majority.

of the

139B

committee, and one third of the 109C committee:

can find employees to

up one

assuming Carlsen

fill his designated spots, they

half of both committees.

Based on this

will make

record, we find

that substantial evidence supports the Board's factual finding of

substantial continuity in contract negotiations.

Local 600M attempted to

-20-

extend the bindery contract so

that the contracts

the

same date,

of both Locals 139B and

allowing

practice of negotiating

for both at one

Local 600M

to

the contracts

time.

109C would expire on

break the

established

individually and

Sullivan contends that

bargain

this would result

in a loss of autonomy for the locals, and so contests the Board's

conclusion

that the attempt did not mark a significant change in

negotiation

Carlsen's

of

contracts.

The

Board based

finding

on

testimony that he would be willing to conduct separate

negotiations if the employees so wished.

Sullivan

its

maintains that

the very

Without citing support,

fact that

joint negotiations

were proposed reveals the lack of substantial continuity present.

To the contrary, we find that Carlsen's flexibility on conducting

separate negotiations

indicates that

Local 600M was

willing to

compromise in order to maintain the continuity of representation:

to find otherwise would

be to penalize the new

suggesting changes that may,

no

reason

to second-guess

local merely for

in fact, benefit workers.

the

Board's

reliance on

We have

Carlsen's

testimony, and accordingly affirm its findings on this point.

Contract Ratification
Contract Ratification
_____________________

The

Board

found

that

the

contract

procedures remains substantially the same.

in

both

locals a

proposed

contract

was

Prior to

ratified

ratification

the merger,

only

when

accepted by a majority of the bargaining unit employees voting in

a secret ballot election.

seem

to

contest,

covered employees

The Board found, and Sullivan does not

that Local

vote,

600M's

by secret

practice

ballot

of having

if requested,

only

is

-21-

substantially similar practice.

Sullivan focuses instead on

600M,

the executive

contrary to the

of

the

board

has the

the fact that, under Local

right

to accept

contracts

membership's vote, thereby opening up the danger

the executive board accepting

bargaining unit

a contract and

employees even

employees voted to reject the

imposing it on

though a majority

contract.

The Board did

of those

not find

the change substantial, on the basis that

this

procedure takes

very

limited

unit

rejects a contract offer, votes not

to

strike,

executive

effect

situation,

and

does

only in

i.e., where

not

committee's

accept

the

recommendation.

Under these limited circumstances, such a

difference does not rise to the level

of

a significant change.

Sullivan II, 317

____________

appeal, the

__,

employees will

the

Sullivan

contract offer

even if the use of the

from

the

On

they have brought

frequently reject a

dramatic change

*6.

the executive board

unlikely occurrence.

but decide not to strike, and that

rare,

318651 at

the employees' wishes when

bargaining to a gridlock, an

retorts that

is

1995 WL

Board reiterates its logic that

can only disregard

the

N.L.R.B. at

old

power

locals' complete

autonomy and the lasting consequences on the employees of the use

of

the

executive

board's

power,

diminution of local autonomy and

represents

meaningful

indicates a lack of continuity.

See National Posters, Inc., 289 N.L.R.B. 468, __, 1988 WL 213801,
___ ______________________

at *20

(1988) ("If . . . the

authority

consummate

members of the Local possessed the

before the merger, but did

their

own

bargaining

-22-

not thereafter, to finally

agreements,

question

of

continuity of identity would be raised."), enforced 885 F.2d

________

175

(4th Cir. 1989), cert. denied, 494 U.S. 1026 (1990).

____________

We

support

The

case law

Sullivan

relies on

for

involve a veto power that is invoked in every situation,

unlike here.

1988

disagree.

See, e.g., Garlock Equip. Co., 288 N.L.R.B. at __,

___ ____ ___________________

WL 213720 at *13

(finding lack of

continuity where, inter

_____

alia, representative of new district lodge

____

contract, creating

a de facto veto).

We are more

the Board's reasoning in Seattle-First,

_____________

WL 213911 at

*4.

ratification

of a

There, as

new

merger the new executive

must consent to every

290 N.L.R.B. at __, 1988

here, the former

contract by

the

persuaded by

practice required

membership, but

council could accept or reject

after

a final

contract

that,

offer without

as

occasions

economic

the

membership

executive

where the

approval.

council's

authority

membership had

action, as here, the

The Board

was

limited

rejected a strike

membership did in

found

to

or other

fact "have the

opportunity to voice its approval or disapproval of a final offer

and the executive council cannot bypass the membership."

Id.
___

We

accordingly affirm the Board's finding on this issue.

Grievances
Grievances
__________

The

ALJ

found,

handling procedures for

109C.

Local

Local 600M

The Board adopted

139B,

the

without comment,

limited

that

were the same

that finding, and

evidence before

the grievance

as for

Local

concluded that, for

it

demonstrated

no

significant

difference in grievance

before and after the

handling procedures.

transfer, the president of the

Both

Local would

-23-

have the

authority to resolve grievances once

attempts to solve

the problem informally at the shop level were unsuccessful.

Sullivan

challenges

these

findings

on

two

bases.

First, Sullivan notes day-to-day administration had formerly been

the responsibility of a Lowell-area

administration

Carlsen.

would

be

union official, and now

undertaken

by

Boston-area

the

President

As the administration was never under the control of a

Sullivan

employee, we fail to

see how this

change in personnel

amounts to a significant change, where the actual practice is the

same.

Second, Sullivan argues that neither of the former locals

transferred

its past contracts,

proposals, or grievance

resolutions, effectively undermining the

preservation of continuity in

with

the Board that, as

has

no

precedental

significance.

600M could

arbitration decisions, contract

any informal settlement

value,

Indeed,

not, in fact,

contract administration.

this

is

Sullivan offers

not

Finally, Sullivan focuses on

of a grievance

point

no evidence

access such records if

We agree

of

great

that Local

a need arises.

the fact that, under Local

139B, a

grievance received

the direct attention of

President Becht, but

under Local 600M, an unresolved grievance was to be handled

pressroom

steward, and

systematically blur

units.

willing

the line

We disagree.

according to

to do

concludes

that Local

600M intended

between the bindery

Local 139B

never had a

by a

to

and pressroom

chapel chairman,

Becht's testimony, because he could not find anyone

the job.

Board that the use

In this

situation, we

agree with the

of another Sullivan employee who

-24-

is from the

former Local

109C instead

of from Local

139B does

not mark

substantial difference.

Strike Votes
Strike Votes
____________

With

respect to strike votes,

agree, that the basic procedures of the

similar.

kind of

locals are substantially

Sullivan's argument to the contrary is based on a Local

600M by-laws provision, which allows the

a strike

the Board found, and we

in shops with 25

a vote.

executive board to call

or fewer members without

Before doing so,

holding any

the executive board

satisfied that

the membership and the

strike and that

the strike would have

must be

International support the

no adverse effect on

the

Local.

The

Board

discounted

relying on Carlsen's

have

the

ballot,

testimony that the

individual

with

strike.

the danger

shop

a two-thirds

Sullivan's

of

position

is

provision,

actual practice was

affected conduct

majority

this

necessary

that

vote

by secret

to authorize

Carlsen's

to

testimony

regarding Local 600M's normal policy regarding strike votes would

not apply here,

because Sullivan's employees fall

or fewer exception to the rule.

never stated

Sullivan points out that Carlsen

that the executive board did

order a strike in such a

within the 25

not have the right to

small shop, or that the executive board

never did.

We

find

support for

the

Board's

conclusion in

following testimony by Local 600M President Carlsen:

the

JUDGE

BERNARD:

testifying

that

just

in

discussed,

binding nature

Are

the respects

the
of a

strike

you
we've

fund,

strike vote

the

by the

-25-

Local

600M,

including
there,

these

Sullivan
.

remaining

shops,

. . . , the

members

have

retained

their

autonomy?
THE WITNESS:
autonomy

as to

contract

or

They have retained their

the right

take an

but the Local would

to vote

on a

individual strike,
support them if they

voted to go on strike.
If

we

Brothers,

vote

to

Sullivan

strike

Sullivan

Brothers would

also

have the facilities of the merged fund.

JUDGE
bottom

BERNARD:
line

just

Getting down
numbers

to the

wise,

these

shops would not necessarily be able to be

outvoted or outflooded

by all the

other

shops in Local -THE WITNESS:

No, sir, the other shops

would have nothing to do with it . . . .

(Hearing Testimony, at 223-24).

stated

that

However,

their

strike"

the

in

question

Carlsen's statement

autonomy

as to

at most,

premerger

Sullivan II, 317

____________

would

not

that the Sullivan

the right

offers evidentiary

that "there is,

locals'

by-law

As Sullivan noted, Carlsen never

to .

support for

N.L.R.B. at

and

__, 1995

an individual

the Board's

those

of

applied.

shops "retained

. take

a minimal difference

procedures

be

conclusion

between the

[Local

WL 318651

two

600M]."

at *6.

The

burden is on Sullivan to show that there is a lack of substantial

continuity between the locals:

to

here, where the Board

can point

evidence that the by-law at issue is not enforced, Sullivan's

failure

to

requires

First, 290
_____

raise

record

that we affirm

evidence

the Board's

N.L.R.B. at __, 1988

disproving

conclusion.

WL 213911 at *5

that

assertion

Cf. Seattle___ ________

n. 11 (holding

that international's potential authority to impose trusteeship on

a local for failure

to obtain authorization to strike

-26-

"does not

defeat the conclusion that in most situations decisions to strike

remain at the local

level").

But see Sullivan I, 38

_______ __________

F.3d at 67

("The record contains no evidence that that particular provision,

or any other provision in question, does not represent the actual

practice of Local 600M.").

3.
3.

The

transferred

that

Board

found

to Local 600M

the evidence

Assets and Records

Assets and Records

that

139B's

and commingled with

indicated

[Local] are available to

Local

that "the

full

assets

were

other funds, but

resources of

the former Local 139B unit."

the

Sullivan
________

II, 317 N.L.R.B. at __, 1995 WL 318651 at *7.

__

its

assets

were

transferred

into

the

As for Local 109C,

Local

600M strike

emergency

fund, with similar results.

that such

commingling

frustrate

a purpose of the Act to find that employee expressions

of

desire

affiliations

to

is not

achieve

and

dispositive, and

[increased

mergers

concerning representation."

substantial difference

We agree

or

financial

automatically

Id.
___

that "it

support]

raised

like the Board we

to give that fact great weight.

Members' Rights and Duties

Members' Rights and Duties

Dues

would

through

questions

Therefore, although there is a

in the locals' assets prior

the administrative transfer,

4.
4.

with the Board

to and after

are not disposed

Dues
____

The

Board

found a

structure for Local 139B:

flat dues

rate to

"slight

difference"

in the

dues

the transfer resulted in a change from

a sliding scale,

resulting in

an overall

-27-

increase.

The

ALJ

found a

members, from $8.00 to $9.22.

similar

increase for

local

109C

No initiation fees were charged to

members of either local.

the

Sullivan argues now

sliding scale system based

dues

charged, amounts

on salary, plus

to a

substantial

that the change to

the difference in

change.

We find

nothing in its argument or the case law it relies on, however, to

convince

us

that

the Board's

findings

Central Wash. Hospital, 303 N.L.R.B. at

______________________

were

incorrect.

See
___

__, 1991 WL 113265 at *2

n.8 (finding no marked change in dues despite rise from $10.42 to

$12.50 per month).

Obligations and By-laws

Obligations and By-laws
_______________________

The Board recognized that there is a difference between

the

former locals' by-laws and those of

Local 600M, in that the

latter set of by-laws restrict members' rights

employment.

to accept outside

The Board, however, citing the lack of evidence that

Local 600M

change.

ever enforced the restrictions,

The Board

relied on

the

found no significant

premise, cited

above, that

actual practice, not policy,

controls.

at

evidence here that the by-laws were

66-67.

But there was no

not followed on this issue:

this record is

find

thus, the only evidence we

the restriction itself.

that Sullivan

has met

change, and the Board's

See Sullivan I,
___ __________

its burden

See id.
___ ___

of

38 F.3d

find on

Accordingly, we

showing significant

conclusion lacks substantial evidentiary

support.

Voting
Voting
______

Finally, Sullivan argues that a

-28-

fundamental difference

has been made in the locals' character:

Local 109C was comprised

exclusively of pressmen, and Local 139B of bookbinders, but Local

600M

includes

a mix

of

different

printing industry

workers.

Similarly,

while the original locals were limited to the city of

Lowell and

its environs,

600M

extends throughout

Hampshire.

the territorial jurisdiction

eastern Massachusetts

More importantly,

and part

Sullivan emphasizes that

of Local

of New

through

the transfer, its

employees in

being part of locals

membership in a

that such a

Locals 139B and

with 8-10 and 40 members,

local of

over 700 people.

dramatic increase in size

109C went

respectively, to

Sullivan

See, e.g.,
___ ____

__, 1987 WL 109286, at *2 (1987).

a merger is between two locals

continuity

has considered

was a

N.L.R.B. 79,

Sullivan notes that even where

of the same international, as the

transfer is here, the

where there

severe

concerning representation has been raised.

Pacific Southwest Container, Inc., 283

__________________________________

administrative

concludes

would result in a

diminution of voting strength, a factor the Board

in finding a question

from

Board has found

similar disparity

a lack of

of size.

See
___

Quality Inn Waikiki, 297 N.L.R.B. 497, __, 1989 WL 224495, at *10
___________________

(1989).

In

cases,

the

immediately

e.g.,
____

making

its

Board generally

before the

looks

at

substantial

the

affiliation, merger,

Seattle-First, 290 N.L.R.B. at

_____________

Here, however, the Board,

the

comparison in

local

continuity

in

question

or transfer.

__, 1988 WL

See
___

213911 at *2.

without citing any authority, expanded

period in this case to include the locals' position prior to

-29-

NADCO's

closing.

merger

left

position:

the

"a

Accordingly,

members

small

the

of the

segment

Board

locals

of a

concluded that

in

larger

their

local

the

historical

representing

similar craft employees within the same geographic area under the

same

International."

318651 at *7.6

Sullivan II,
___________

317 N.L.R.B. at

__, 1995 WL

It argues again now that the proper comparison in

terms of size is between the historic size of the locals -- about

240

their

for Local 139B and

size

diminished

125 for Local

right before

by NADCO's

merger,

closing.

appellee

calculates,

Sullivan

constituted about

each local; now,

the

prior

109C in 1990

to

as membership

Viewed from

NADCO's

seven percent

Sullivan's employees

-- and not

had

been

that perspective,

closing

of the

are 28 of

employees

of

membership of

700, or

about

four percent, of Local 600M.

whether

the Board

erred

figures, for we find

that

However, we need not determine here

in considering

the pre-NADCO

that, even assuming Sullivan

closing

can establish

there are significant differences in voting power, there is

still

substantial continuity

between Locals

109C and

139B and

Local 600M.

Whether

substantially

measure

changes

merger,

a local

of the changes here

transfer,

is a

or

question

reveals that it

affiliation

of degree.

falls somewhere in

the gray area between a

complete transformation in identity

no

On

change

at

all.

balance,

while

Our

we

recognize

and

that

____________________

The

International Union's constitution permits it

to rescind

or suspend the charter of any local with fewer than 50 members.

-30-

significant changes have been wrought in the locals' by-laws

and

assets -- and, for Local 139B, in its leadership -- the weight of

the

factors we

changes are not

the

have

examined leads

sufficiently dramatic to

bargaining representative

representation.

us

and

to conclude

that

alter the identity

raise a

the

of

question concerning

We

do not

reach

this conclusion

merely because

majority of the factors

we examined weigh in favor

the

this

NLRB's

decision:

is

Simply put, we cannot find that

in assets, a

not a

leadership due to

the previous

stay

and

in

decrease

substantially changed the local

International

constitution

contract proposal,

grievances

and

when

analysis.

the changes here -- an

change in

on,

of affirming

mathematical

new local by-law restricting

increase

outside employment, a

officers' refusal

immediate

voting

strength

when it is governed by

and

the

by-laws, when

the

negotiation, and ratification as

to

--

the same

system

for

well as for

and strike votes is substantially the same as before,

even

Accordingly,

we

the

dues

affirm

have

the

stayed

Board's

essentially

finding

of

the

same.

substantial

continuity.

II.
II.

Local 600M
Local 600M
__________

Sullivan's contract

checkoff

of

authorization.

order

Sullivan

employees'

In its

to

with Local

union

dues

139B provided

for the

upon

written

their

decision and order, the Board

honor the

expired bookbinders' contract.

dues

checkoff

refused to

provision of

The Board stated that it

-31-

the

did so

because the

bookbinders' agreement had expired, and

settled that

the checkoff

expiration."

Sullivan II, 317 N.L.R.B. at __,

___________

*9 n.15.

The

obligation does not

Union then filed a request

the remedy, which the Board denied.

Local 600M and the

"it is well

survive contract

1995 WL 318651 at

for reconsideration of

Before us, Joint Petitioners

GCIU (together, the "Union"), argue

that the

Board erred.

In reviewing the Union's

our judgment for

remedy

'should

with

stand

the Board's.

We treat the

particular deference:

unless it

can

claim, we will not substitute

"[a]

be shown

Board's choice

of

Board-ordered remedy

that [it]

is

a patent

attempt to achieve ends other than those which can fairly be said

to effectuate the policies of the Act.'"

Pegasus Broadcasting of
_______________________

San Juan, Inc. v. NLRB, 82 F.3d 511, 513 (1st Cir. 1996) (quoting
______________
____

Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943)).
__________________________
____

The Union first contends that the Board has not met its

obligation to

explain its decisions and

with substantial

order

evidence, in

support those decisions

either the original

decision and

or its order denying the request for reconsideration.

Burlington Truck Lines v.

________________________

United States,
______________

371 U.S.

156,

See
___

167

(1962). Accordingly, it asks that we remand the Board's order for

clarification

and

reconsideration.

See NLRB
___ ____

v.

Food Store
___________

Employees Union, 417 U.S. 1, 9-10 (1974).

_______________

We find that remand is unnecessary, as the Board has in

fact explained

Truck Lines, on
___________

and supported its decision,

which the

Union relies.

unlike in Burlington
__________

See Burlington Truck

___ _________________

-32-

Lines, 317 U.S. at

_____

here to justify the

167 ("There are

no findings and no

choice made, no indication

analysis

of the basis

on

which the Commission exercised its expert discretion."); see also

________

District 1199P v. NLRB, 864 F.2d 1096,

_______________
____

1989).

The

had expired

1100 n.3 & 1102 (3d Cir.

Board found the pertinent fact --

-- and applied

obligation does not survive

that the contract

the relevant law --

that a checkoff

contract expiration.

The

the Board relies on support its statement of the law.

Fin. Printing Div. v.

__________________

that

the Board

excluded

unfair

has

from the

labor

NLRB, 501 U.S. 190, 198-99

____

held

general

practice if,

effects a unilateral change

employment");

1987

WL 89684,

that

dues check-off

rule that

without

"an

at *3

See Litton
___ ______

(1991) (noting

provisions

employer commits

bargaining

to impasse,

of an existing term or

Indiana & Mich. Elec. Co.,

__________________________

two cases

. .

an

it

condition of

284 N.L.R.B.

(1987) ("The exception

are

53, __,

. permitting

unilateral

contract

abandonment

expiration is

of .

based

checkoff arrangements

on the

acquisition and maintenance of union

fact

. .

. that

after

'[t]he

membership cannot be made a

condition of employment except under a contract which conforms to

the proviso

to Section 8(a)(3).'" (quoting

Bethlehem Steel, 135

_______________

N.L.R.B. 1500, 1502 (1982))); see also Ortiz Funeral Home Corp.,
________ _________________________

250 N.L.R.B. 730,

731 & n.6

(1980), enforced
________

Cir. 1981), cert. denied, 455 U.S. 946 (1982).

____________

651 F.2d 136

That the

(2d

Board's

conclusion was made succinctly does not defeat its logic.

Second, the

Union

argues that

United Rubber, Cork,

______________________

Linoleum and Plastic Workers of America, Local 250 (Mack-Wayne

_________________________________________________________________

-33-

Closures), 290
_________

764

(1991),

applies when

with regard

held

N.L.R.B. 817

applies here.

that

frivolous,"

That

a union breaches

to processing

that once the General

proving

(1988), supplemented,
____________

the

case addressed

its duty

of fair

an employee's

grievance

what

remedy

representation

grievance.

Counsel meets its

underlying

305 N.L.R.B.

The

Board

initial burden of

was

"not

clearly

the burden shifts to the union to establish that the

grievance was not meritorious.

be awarded back pay.

See 290
___

If it cannot, the

employee will

N.L.R.B. at ___, 1988 WL 214001 at

*5.

Specifically, the

bargained

Union

practice

by

refusing

checkoff provision of the

points

it

if Sullivan

had

in good faith with the Union, under Litton and Indiana

______
_______

& Michigan Electric Sullivan would

____________________

labor

agrees that

to

not have committed an unfair

continue

in effect

expired contract.

the

However, the

dues

Union

out, Sullivan did not bargain in good faith here; indeed,

committed an unfair

labor practice.

Accordingly, the Union

continues, under Mack-Wayne Closures, any uncertainty

___________________

created by

Sullivan's refusal to bargain should be assessed against it.

See
___

id. at
___

*3 (noting that

forcing the

union to bear

the risk

of

uncertainty was "in keeping with traditional equitable principles

that the wrongdoer shall bear the risk of any uncertainty arising

from its

actions").

Here,

the Union

concerning

whether Sullivan

effect the

dues checkoff provision pending

on

new

contract

should

would

posits, the

be

-34-

have agreed

assessed

uncertainty

to continue

in

agreement or impasse

against

Sullivan.

Therefore,

make

the Union

the Union whole by

employees for

doing

concludes, Sullivan

remitting dues for

the entire period

so, with interest.

from the

should be

ordered to

the bookbinder unit

date Sullivan

ceased

Refusal to do so, the Union maintains,

would reward Sullivan for its

unlawful refusal to recognize

and

bargain with the Union.

The

Board

distinguishable.

responds

that

Contrary to the Union's

argues, Mack-Wayne Closures did not

___________________

that uncertainty

uncertainty.

is

contention, the Board

rest solely on the principle

should be resolved against

conduct created the

considerations.

Mack-Wayne
Closures
_____________________

the wrongdoer whose

It also rested

on two

other

First, the Board noted that "the union obviously

[had]

more

underlying

particular knowledge

grievance than

regarding

the General

the

merits of

Counsel," such

the

that the

case fell within the principle that "the burden of establishing a

particular

matter will often be placed on the party with special

knowledge regarding that matter."

214001, at

*4.

290 N.L.R.B. at ___,

1988 WL

This consideration does not apply here.

Second,

the Board argues, Mack-Wayne Closures also stressed "the special

____________________

character

of

the

grievance-arbitration

process,

employee is in effect 'presumed' to

be 'innocent.'"

If

the

the

burden

procedural and

were not

employee

tactical advantage, i.e., of

bear the burden of proof.

no similar loss

shifted,

of rights

Id.
___

at *4.

where

the

Id. at
___

*5.

would lose

having the employer

The Board points out that

is demonstrable in

this case,

which

involves

the denial, not

of rights under

an existing contract,

-35-

but of the opportunity to negotiate a new contract.

The

Board notes that it

based its refusal

to issue a

prospective order on the "settled principle" that such provisions

do

not survive the expiration of the contract, because the Labor

Management

Relations Act,

29 U.S.C.

186(c)(4),

permits dues

checkoff

arrangements

only

agreement.

See
___

bargaining

Also, it

as

part

of

Litton, 501
______

points out, it cannot

valid

U.S. 190,

order an employer to

collective

199 (1991).

agree to a

checkoff provision, even where the employer's refusal to agree to

such a provision

is based on a desire to frustrate agreement and

not on any legitimate reason.

U.S. 99,

See H.K. Porter Co. v.

___ _______________

108 (1970) ("[A]llowing

the Board to

NLRB, 397
____

compel agreement

when the parties themselves are unable to agree would violate the

fundamental

premise

on

which

the

Act

is

based

--

private

bargaining under governmental supervision of the procedure alone,

without

any

official compulsion

over the

actual terms

of the

contract.").

Similarly, the Board maintains, the remedy for unlawful

repudiation

beyond the

has

not

provision.

n.6

of a

contractual

expiration date of

agreed

to

checkoff provision

cannot extend

the contract, where

the employer

subsequent

contract

containing such

See Ortiz Funeral Home Corp., 250 N.L.R.B. at

___ _________________________

(noting that

"a union's

right to

dues checkoff

. .

731 &

. is

extinguished on expiration of the collective-bargaining agreement

creating that right").

The Board concludes

that nothing in the

record could enable it to determine whether, or when, the parties

-36-

would

have reached agreement on

not refused

decide,

to bargain.

a new contract

if Sullivan had

Since the Board would be left having to

in essence, what the

parties should have

agreed to, it

contends that it properly declined to speculate.

We find the Board's

it is

too far a

reasoning persuasive.

reach to extrapolate the

Board's fairly narrow

reasoning in Mack-Wayne Closures into this

____________________

Wayne Closures,
_______________

(describing

proof

290

N.L.R.B. at

the specific

shifts to

__,

1988

circumstances in

the union).

The

context.

WL

See
___

Mack_____

214001, at

which the

Union has not

authority that would help us close that gap.

Simply put,

*5

burden of

presented any

Accordingly, as the

Union has not shown that the Board's remedy is "'a patent attempt

to achieve

ends other

effectuate the

than those

policies of

which can

fairly be said

to

the Act,'" Pegasus Broadcasting, 82

_____________________

F.3d at 513 (quoting Virginia Elec. & Power Co. 319 U.S. at 540),
__________________________

we affirm

the Board's denial

of the

request to honor

the dues

checkoff provision.

CONCLUSION
CONCLUSION

The

Locals 109C

issue

mere fact that a

and 139B voted

majority of the

members of both

for the administrative

transfers at

here does not, and cannot, resolve the question of whether

a question of representation has arisen.

a 'question concerning representation'

"In determining whether

exists because of lack of

continuity,

the Board

there is majority

changes

is

not directly

support for the

inquiring into

whether

labor organization after

the

at issue, but rather is seeking to determine whether the

-37-

changes are so great that a new organization has come into

--

one that

should be

bargaining representative

required to

establish its

through the same means

status

being

as a

that any labor

organization

is required to use in the first instance."

Comm'l Transp., Inc., 288 N.L.R.B.

_____________________

(1988).

214, __, 1988

Western
_______

WL 213704, *5

Nonetheless, as the Supreme Court recently commented,

[t]he

Board

is

suspicion when faced

benevolence

as

with an

its

workers'

against their certified

subject

to

from the
one.

vindicator

they

is nothing

giving a short leash

to

employer's
champion

union, which

decertification

workers if

There

entitled

is

petition

want to

file

unreasonable in

to the employer

of

its

as

employees'

organizational freedom.

Auciello Iron Works, Inc. v. NLRB, 116 S. Ct. 1754, 1760 (1996).
__________________________
____

For the reasons stated above, we affirm.

affirm
______

-38-