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 on ___________________ ___________________
brief for petitioner Sullivan Brothers Printers, Inc.
Anton G. Hajjar, Adrienne L. Salda a and O'Donnell, Schwartz _______________ ___________________ ___________________
& Anderson, P.C. on brief for petitioners Local 600M, Graphic _________________
Communications International Union, AFL-CIO, CLC and 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, Deputy Associate General Counsel, ____________________
National Labor Relations Board were on brief for the National
Labor Relations Board.
____________________
November 5, 1996
____________________
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TORRUELLA, Chief Judge. Petitioner-Appellant Sullivan TORRUELLA, Chief Judge. ___________
Brothers Printers, Inc. ("Sullivan"), appeals the decision of the
National Labor Relations Board (the "NLRB" or the "Board")
finding that Sullivan committed an unfair labor practice. Local
600M of the Graphic Communications International Union ("GCIU"),
AFL-CIO, appeals the Board's refusal to order the remedy it
requested. For the reasons stated herein, we affirm.
BACKGROUND BACKGROUND
We have previously addressed this dispute in some
detail. See Pye v. Sullivan Bros. Printers, Inc. ("Sullivan I"), ___ ___ _____________________________ __________
38 F.3d 58 (1st Cir. 1994) (affirming district court's denial of
the Board's request for a preliminary injunction requiring that
Sullivan recognize and bargain with Local 600M). Accordingly,
rather than delve into the facts of this case, we begin with an
outline of the dispute, and address more specific details as they
arise.
For over three decades, GCIU Local 109C represented
Sullivan's pressmen, and Local 139B represented its bookbinders.
As of 1990, Sullivan's pressmen and bookbinders represented a
small minority in each local: "The vast majority of the members
of each local . . . worked at another printing company, North
American Directory Corporation ('NADCO')." Id. at 60. By 1993, ___
however, NADCO had closed its plant, dramatically reducing the
locals' membership. Local 109C was left with about 40 members,
roughly 15 of whom were from Sullivan, and Local 139B with 8 to
10 members, all from Sullivan. Henry Boermeester
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("Boermeester"), president of Local 109C, and Oscar Becht
("Becht"), president of Local 139B, both NADCO employees, began
to explore the possibilities of merging or transferring the
locals. Accordingly, in January of 1993, the Local 109C members
voted to surrender their charter and transfer to Local 600M,
which had some 700 members. The Local 139B members did the same
in March. Id. at 60-61. ___
In July of 1993, Local 600M formally notified Sullivan
of the changes and asked Sullivan to recognize and bargain with
it. Local 139B's contract with Sullivan was due to expire in
August of 1993, but Local 109C's was effective through May of
1995. 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 refusing to bargain and for
unilaterally changing the terms and conditions of employment, in
violation of sections 8(a)(1) and 8(a)(5) of the Act. See 29 ___
U.S.C. 158(a)(1) & (a)(5).1 The Board petitioned the district
____________________
1 Under 8(a) of the Act,
[i]t shall be an unfair labor practice for an
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court for a temporary injunction requiring that Sullivan
recognize and bargain with Local 600M and rescinding certain of
the unilateral changes. The district court denied the
injunction, stating that "'a question exist[ed] as to the
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 administrative law judge ("ALJ")
conducted a hearing and issued his decision in July, 1994. The
ALJ found that Sullivan had not violated the Act by refusing to
recognize Local 600M as the successor to 139B, but had violated
it by refusing to recognize Local 109C. The NLRB, in turn, found
that Sullivan had violated the Act by refusing to recognize Local
____________________
employer --
(1) to interfere with, restrain, or
coerce employees in the exercise of the
rights guaranteed in section 157 of this
title;
***
(5) to refuse to bargain collectively
with the representatives of his
employees, subject to the provisions of
section 159(a) of this title.
29 U.S.C. 158(a)(1) & (a)(5).
2 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 F.3d at 67. We recognize that our __________
holding today affirming the Board's decision reaches a different
conclusion than in our earlier decision. In that case we were
reviewing an interlocutory appeal for a temporary injunction
pursuant to section 10(j) of the Act. See 29 U.S.C. 160(j). ___
Such a proceeding is independent of the proceeding on the merits,
and therefore our decision in Sullivan I is not binding in the ___________
context of this appeal. See NLRB v. Kentucky May Coal Co., 89 ___ ____ ______________________
F.3d 1235, 1239-40 (6th Cir. 1996) (collecting cases).
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600M as the successor to both Locals, and ordered Sullivan to
recognize and bargain with Local 600M. Sullivan Bros. Printers, ________________________
Inc. ("Sullivan II"), 317 N.L.R.B. 561, 1995 WL 318651 (1995). ____ ____________
Sullivan petitioned for review, this court granted the Board's
motion to transfer the proceeding to the United States Court of
Appeals for the District of Columbia Circuit, and that Circuit
transferred the proceeding back to this court. The Board has
filed a cross-application for enforcement of its order.
DISCUSSION DISCUSSION
I. Sullivan I. Sullivan ________
Sullivan contends that we should set aside the Board's
order. At heart, its argument is that the administrative
transfer of Locals 139B and 109C interrupted the collective
bargaining relationship, giving rise to a 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 Act recognizes that employee support for a
certified bargaining representative may be eroded by changed
circumstances," NLRB v. 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 an existing collective
bargaining relationship, the Board asks: (1) whether the merger
or transfer vote occurred under 'circumstances satisfying
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minimum due process' and (2) whether there was 'substantial
continuity' between the pre- and post-merger union." Sullivan ________
I, 38 F.3d at 64 (quoting Southwick Group d/b/a Toyota of _ __________________________________
Berkeley, 306 N.L.R.B. 893, 899, (1992) (quoting ________
News/Sun-Sentinel Co., 290 N.L.R.B. 1171 (1988), enforced 890 ______________________ ________
F.2d 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 a question of representation exists is a
factual issue to be determined by the Board." Minn-Dak Farmers ________________
Coop. v. NLRB, 32 F.3d 390, 393 (8th Cir. 1994). "We will _____ ____
enforce a Board order if the Board correctly applied the law and
if substantial evidence on the record supports the Board's
factual findings." Union Builders, Inc. v. NLRB, 68 F.3d 520, _____________________ ____
522 (1st Cir. 1995). Substantial evidence is "'more than a mere
scintilla. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Penntech ________
Papers, Inc. v. NLRB, 706 F.2d 18, 22 (1st Cir.) (quoting _____________ ____
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)), cert. _______________________ ____ _____
denied, 464 U.S. 892 (1983). We begin our analysis with ______
Sullivan's challenge to the Board's finding of due process, and
then turn to the issue of whether substantial continuity existed
here.
A. Due Process A. Due Process ___________
Sullivan contends that the Board erred in overruling
the ALJ's determination and finding that the voting procedures
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employed by Local 139B in electing to surrender their charter and
transfer to Local 600M satisfied minimal due process standards.3
It is established that the balloting procedures a union follows
need not conform to Board standards. See Seattle-First, 475 U.S. ___ _____________
at 204. Generally, the Board 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." Id. at 199. The burden ___
of establishing lack of adequate 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 of the vote, Becht, the president of
Local 139B, passed out ballots to the five or six employees on
the day shift, leaving three or four additional ballots with
another employee for distribution to the employees on the night
shift. He informed them that he would return the following day
to pick up the ballots, which were collected in an envelope.
When he collected the sealed envelope, he found eight ballots,
____________________
3 Sullivan does not challenge the Board's adoption of the ALJ's
finding that the election carried out by Local 109C did not
violate the minimal due process requirement.
4 Local 600M and the GCIU, as joint intervenors, raise the issue
of whether the imposition of voting requirements is beyond the
Board's statutory power. See Seattle-First, 475 U.S. at 199 n.6 ___ _____________
(declining to reach the issue). Like the Board before us,
however, we need not address whether the NLRB has the authority
to impose due process requirements, as such requirements have at
any rate been met here. See Sullivan II, 317 N.L.R.B. at __, ___ ___________
1995 WL 318651 at *9 n.2.
-8-
all cast in favor of the merger. No objection was raised by the
members as to the merger vote process.
The Board concluded that the due process requirement
was met in this case. First, it found that Becht held four or
five informal meetings with the remaining Local 139B members
after the NADCO closure, informing them of the status of
negotiations, and notified them a week before the vote that he
would bring around the ballots, a procedure consistent with his
established practice. Second, as for the vote itself, the Board
relied on the lack of any evidence that the election was not in
fact accomplished with adequate procedural safeguards, noting
that Becht knew that all of the employees were current union
members, that he personally distributed the ballots to the day-
shift employees, and that there was no evidence that the ballots'
secrecy was compromised. Third, the Board noted that, "[m]ost
important[ly], there [was] no indication that any individual
objected to the voting procedures or any aspect of merger either
at the time of the vote or any time subsequently, or that the
vote did not reflect the majority view." Sullivan II, 317 ____________
N.L.R.B. at __, 1995 WL 318651 at *4. Accordingly, the Board
concluded that its standard of minimal due process was satisfied,
emphasizing again "that this case involves the merger of sister
locals and that no one objected." Id. ___
The Board accepted Becht's testimony about the union
membership status of Sullivan's employees. In so doing, the
Board stated that, unlike the Board, the ALJ had "questioned the
-9-
basis for Becht's knowledge concerning the union membership
status of the Respondent's unit employees as being 'without
foundation.'" Id. at 3 n.4. According to the Board, its ___
acceptance of Becht's testimony about union membership therefore
ran contrary to the ALJ's conclusion. Sullivan argues that the
Board erred in drawing this conclusion. Instead, Sullivan
contends, when the ALJ discussed the foundations of Becht's
testimony he was in fact concerned with another issue: Becht's
testimony about his "'belief' that someone referred to only as
'he' just handed the ballots out without checking names off at
night and that the 'individual' who passed them out at night was
responsible to collect them." Sullivan II, 317 N.L.R.B. at __, ___________
1995 WL 318651 at *15. This purported error proves a red
herring. Contrary to Sullivan's position, the ALJ did comment on
the lack of foundation for Becht's statement that the employees
who voted were all union members, stating that "[h]ow he knew
this is unexplained." Id. Thus the Board's statement was not ___
inaccurate. What is more, even if it were a misstatement,
Sullivan has pointed to no grounds for us to question the Board's
acceptance of "the veteran Local 139B officer's uncontroverted
testimony." Id. at *9 n.4. ___
Second, Sullivan questions the Board's reliance on the
fact that when Becht retrieved the ballots they were in the
sealed envelope, with no evidence that they had been tampered
with or their secrecy compromised. Sullivan argues that the
ALJ's reasoning was more persuasive when he stated:
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[a]lso left devoid of any informative answers
are significant questions of who had custody
of the envelope from the time it was
delivered to employees and then returned to
Becht at noon the following day, if anyone;
where it was kept, and whether any safeguards
whatsoever reasonably protected the secrecy
and reliability of the ballots during the
course of the day 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 secrecy and integrity of the balloting than
whether or not the ballots were in a sealed envelope. We
disagree. Simply put, the burden is on Sullivan to prove
impropriety, and mere assertions that tampering was possible,
without evidentiary support in the record, does not meet that
requirement. See News/Sun Sentinel Co., 890 F.2d at 433-34 ___ ______________________
("[A]n employer challenging the validity of a merger election
must provide an evidentiary showing of irregularity before the
burden can shift to the NLRB General Counsel to provide
affirmative proof of procedural propriety."). We cannot find
that the Board applied the law incorrectly where Sullivan does
not meet its burden. Cf. Insulfab, 789 F.2d at 965-66 (upholding ___ ________
near unanimous 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." Appellant's Brief, at 47. Indeed,
Sullivan continues, that is especially so here, because prior to
-11-
the merger no Local 139B member showed an interest in becoming
active in the union, indicating that the lack of objection is
just as likely to indicate apathy as approval. We are once again
unconvinced. The Board did not rely solely on the fact that no
employee objected: it also found that the employees were given a
week's notice of the election, that they held four or five
meetings to discuss the change, and that there was no evidence
that the ballots were tampered with. While it is not
dispositive, the fact that none of the eight employees who voted
complained supports the Board's finding. See, e.g., Insulfab, ___ ____ ________
789 F.2d 961, 966 (1st Cir. 1986) (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. Substantial Continuity B. Substantial Continuity ______________________
Having established that Local 139B's voting procedure
did not violate due process, we turn now to the substantial
continuity prong of the test. The focus in this second step is
on whether the administrative transfer "substantially changed the
union." Seattle-First, 475 U.S. at 199. In making its factual _____________
determination, the Board traditionally considers a number of
factors, including the union's "structure, administration,
officers, assets, membership, autonomy, by-laws, [and] size,"
NLRB v. Pearl Bookbinding Co., 517 F.2d 1108, 1111 (1st Cir. ____ ______________________
1975), as well as any changes "'in the rights and obligations of
the union's leadership and membership, and in the relationships
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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)). Nonetheless, "[i]n assessing continuity, the NLRB
does not run down a checklist of 'certain cited criteria';
instead, the Board considers 'the totality of a situation.'"
News/Sun Sentinel Co., 890 F.2d at 315 (quoting Yates Indus., _____________________ ______________
Inc., 264 N.L.R.B. 1237, 1250 (1982)). 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 in holding that substantial continuity exists between
Locals 139B and 109C and Local 600M. We turn now to the merits
of this claim.
1. Leadership Responsibility 1. Leadership Responsibility
Local 139B: No former Local 139B official holds an __________
elected or appointed position in Local 600M. The Board found
that the only remaining Local 139B officers, President Becht and
Jeannette Pickels, were both 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. The Board noted that negotiations
would be accomplished by the union's president, who was not a
Sullivan employee, as was true in the past. Thus, according to
the Board, the lack of continuity in leadership was caused by the
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free choice of the leaders themselves, and there was some
continuity in the form of Becht's participation on the
negotiating committee.
We find that the Board's conclusion regarding Becht's
role is not supported by substantial evidence. Both Becht and
the president of Local 600M testified that Becht had agreed that
"if he was available, he'd be delighted to be there, but he
couldn't commit." (Transcript of hearing before NLRB, Feb. 3,
1994, p. 265). Thus, the commitment to serve on the negotiating
committee was tentative at best, and not the agreement the Board
describes. See Sullivan I, 38 F.3d at 65. Accordingly, the ___ __________
Board's conclusion that Becht "will continue to perform the same
leadership role with respect to the [Local 600M's] negotiations
with Respondent," Sullivan II, 317 N.L.R.B. at __, 1995 WL 318651 ___________
at *5, is also without a foundation in substantial evidence.
Becht's tentative role in the negotiation process, paired with
the fact that no Local 139B officer has an official position in
Local 600M, precludes finding substantial continuity in
leadership. See Garlock Equip. Co., 288 N.L.R.B. 247, 1988 WL ___ ___________________
213720, at *11 (1988) (viewing continuity of leadership as a
function of whether the unit's employees continue to be
represented by the same officers, who are operating under
procedures and with a degree of autonomy similar to that which
they had earlier).
Whether a union "[r]etain[s] the same key personnel is
important, for '[w]hen the same persons participate in
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communications with the company with respect to grievances,
contract negotiations, and the like, continuity is likely to be
preserved.'" Insulfab, 789 F.2d at 966 (quoting St. Vincent ________ ___________
Hosp. v. NLRB, 621 F.2d 1054, 1057 (10th Cir. 1980)). _____ ____
Nonetheless, our conclusion that there was no continuity of
leadership between Local 139B and Local 600M does not end 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, 60, 1992 _________________
WL 77803 at *5 (1992)). The Board weighs the totality of the
evidence, see, e.g., Central Wash. Hosp., 303 N.L.R.B. 404, __, ___ ____ ___________________
1991 WL 113265 at *1 (1991), enforced sub nom. NLRB v. Universal _________________ ____ _________
Health Sys., 967 F.2d 589 (9th Cir. 1992), and, as it commented ____________
here, the situation regarding continuity of the Local 139B
leadership is "somewhat unusual," Sullivan II, 317 N.L.R.B. at ___________
__, 1995 WL 318651 at *5, because leadership positions were in
fact offered to Becht and Pickels, who declined them. Thus the
lack of continuity is not due to Local 600M itself -- in fact,
the lack of leadership was a driving force behind the
administrative transfer. See Seattle-First Nat'l Bank, 290 ___ __________________________
N.L.R.B. 571, __, 1988 WL 213911 at *3 (1988) (noting, inter _____
alia, that there was no evidence that replacement of officers was ____
a condition of affiliation or result of action by the
International union in finding substantial continuity despite
turnover in officers), enforced 892 F.2d 792 (9th Cir. 1989), ________
cert. denied, 496 U.S. 925 (1990). ____________
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Local 109C: The Board adopted the ALJ's finding that __________
there was continued leadership responsibility on the part of
Local 109C officials. The ALJ noted that the former president of
Local 109C, Boermeester,
became an elected executive board member [of
Local 600M] on August 5, 1993, and
represented the former Local 109C members
employed by Respondent in the dispute over
Respondent's unilateral changes in a 401(k)
plan in a letter sent in his official Local
600M capacity on September 28, 1993, as well
as demanding bargaining over new equipment
purchased by Respondent. His long-time
practice of regular contact with chapel
chairmen continued, with regular contacts
between [Chapel Chairman Stephen] Wysocki and
him over representation of Respondent's
employees and Local 600M President Carlsen
testified credibly that the Local denoted him
for membership on the negotiating committee
from Local 600M when it negotiates with
Respondent. He represented Local 600M in
other negotiations with employers whose
employees Local 109C previously represented
. . . .
Sullivan II, 317 N.L.R.B. at __, 1995 WL 318651 at *18 (citation ___________
omitted). The ALJ also noted that Chapel Chairman Wysocki
retained the same leadership role that he had prior to the
merger, and that the president of Local 600M testified that
Wysocki will be used as a negotiating committee member in
contract negotiations with Sullivan. Finally, it found that two
chapel chairmen at another former Local 109C employer will
continue in their positions under Local 600M.
Sullivan contests the ALJ's conclusion. First, it
points out that Boermeester was the only former Local 109C
official to hold any of the elected or appointed positions within
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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 made until the merger
was complete, that Boermeester would have to win an election to
retain his position, as it was a temporary one to fill an
unexpired term, and that Boermeester represented a division that
did not contain former Local 109C members. Sullivan adds that
Boermeester testified that he agreed to participate in future
negotiations only if he had time to, and that, like Becht, even
in those negotiations in which he participated, he would not
enjoy the same degree of autonomy and authority as he had
previously. See Sullivan I, 38 F.3d at 66. Therefore, Sullivan ___ ___________
concludes, Boermeester's role cannot be found to satisfy the
continued leadership responsibility requirement.
We found in Sullivan I that "Wysocki's continued ___________
stewardship and Boermeester's position on Local 600M's executive
board represent some continuity of leadership for their former
local; whether they represent substantial continuity is
doubtful." 38 F.3d at 66. Our standard of review here is fairly
deferential to the Board's decision, while in Sullivan I it was __________
the district court that received our deference. See id. at 63 ___ ___
(noting that we reviewed the court's determination of reasonable
cause for clear error, and the decision to deny equitable relief
____________________
5 Both Boermeester and Wysocki testified that no one in Local
109C wanted to take over running the local.
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for abuse of discretion). The standard makes all the difference
here: applying the pertinent standard, we must affirm the
Board's finding that there was continuity of leadership between
Local 109C and Local 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 was required to report to secretary-treasurer of new
district council and union counsel was added to negotiating
team). The evidence Sullivan points to would allow a factfinder
to reach conclusions differing from the Board's -- as we
intimated in Sullivan I -- but our review of the record reveals ___________
substantial evidence underpinning the ALJ findings adopted by the
Board regarding Local 109C. We will not substitute our judgment
for the Board's, even if we might have reached a different
conclusion, see Union Builders, 68 F.3d at 522, and so we must ___ ______________
affirm the Board's finding in these circumstances.
2. Negotiation and Administration of Contracts 2. Negotiation and Administration of Contracts
Proposals Proposals _________
In terms of contract proposals, the practice of both
Local 109C and Local 139B was to hold informal meetings -- at a
donut shop or on the shop floor -- where members could make
proposals. The by-laws of Local 600M, however, state that
suggested contract proposals must be submitted to the president,
in writing, at least 90 days prior to contract expiration. We
agree with Sullivan that, on its face, this is a substantial
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change. Nonetheless, the case law is firm that what we must
weigh is not the rule, but the actual practice followed. See, ___
e.g., Central Wash. Hosp., 303 N.L.R.B. at __, 1991 WL 113265 at ____ ___________________
*1. Carlsen testified that the by-laws procedure was not always
strictly followed: sometimes Local 600M would hold meetings for
proposals, and sometimes employees would send lists that were
developed and sent back to them for approval or modification. On
this record, the Board concluded that the procedure did not
differ dramatically, despite the by-laws provision.
Sullivan protests that there was no evidence that the
90 day requirement was not adhered to. But Sullivan bears the
burden here of demonstrating that there was no substantial
continuity, and it 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. In the end, we are
left with evidence that the old locals held meetings sometime
prior to the contract's expiration to collect suggestions, and
that Local 600M's practice is to sometimes hold meetings at a
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 139B was for the president and a Sullivan employee to act
as the negotiators; most recently, that had been Becht with an
employee. According to Carlsen's testimony, Local 600M's
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practice would be to use a committee formed of the local's
president, plus Becht as the former president, Wysocki (because
there was no chapel chair from former Local 139B), and an
employee, if possible. For Local 109C, the past practice was to
use the local's president, vice president, and a chapel chair:
only the latter was a Sullivan employee. Again according to
Carlsen, the new practice would be to have 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) and Boermeester
to Carlsen. Nonetheless, we agree with the Board that there has
been no substantial break in continuity. First, neither
Boermeester nor Becht were Sullivan employees to begin with, and
so both before and after the administrative transfer Sullivan's
employees will be represented by a team led by a non-employee
president. Second, on both the pre- and post-transfer
committees, the Sullivan employees do not make up a majority.
Prior to the transfer, employees made up half of the 139B
committee, and one third of the 109C committee: assuming Carlsen
can find employees to fill his designated spots, they will make
up one half of both committees. Based on this record, we find
that substantial evidence supports the Board's factual finding of
substantial continuity in contract negotiations.
Local 600M attempted to extend the bindery contract so
-20-
that the contracts of both Locals 139B and 109C would expire on
the same date, allowing Local 600M to break the established
practice of negotiating the contracts individually and bargain
for both at one time. Sullivan contends that 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 of contracts. The Board based its finding on
Carlsen's testimony that he would be willing to conduct separate
negotiations if the employees so wished. Without citing support,
Sullivan maintains that the very 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 local merely for
suggesting changes that may, in fact, benefit workers. We have
no reason to second-guess the Board's reliance on Carlsen's
testimony, and accordingly affirm its findings on this point.
Contract Ratification Contract Ratification _____________________
The Board found that the contract ratification
procedures remains substantially the same. Prior to the merger,
in both locals a proposed contract was ratified only when
accepted by a majority of the bargaining unit employees voting in
a secret ballot election. The Board found, and Sullivan does not
seem to contest, that Local 600M's practice of having only
covered employees vote, by secret ballot if requested, is a
-21-
substantially similar practice.
Sullivan focuses instead on the fact that, under Local
600M, the executive board has the right to accept contracts
contrary to the membership's vote, thereby opening up the danger
of the executive board accepting a contract and imposing it on
the bargaining unit employees even though a majority of those
employees voted to reject the contract. The Board did not find
the change substantial, on the basis that
this procedure takes effect only in a
very limited situation, i.e., where a
unit rejects a contract offer, votes not
to strike, and does not accept the
executive committee's recommendation.
Under these limited circumstances, such a
difference does not rise to the level of
a significant change.
Sullivan II, 317 N.L.R.B. at __, 1995 WL 318651 at *6. On ____________
appeal, the Board reiterates its logic that the executive board
can only disregard the employees' wishes when they have brought
the bargaining to a gridlock, an unlikely occurrence. Sullivan
retorts that employees will frequently reject a contract offer
but decide not to strike, and that even if the use of the power
is rare, the dramatic change from the old locals' complete
autonomy and the lasting consequences on the employees of the use
of the executive board's power, represents a meaningful
diminution of local autonomy and indicates a lack of continuity.
See National Posters, Inc., 289 N.L.R.B. 468, __, 1988 WL 213801, ___ ______________________
at *20 (1988) ("If . . . the members of the Local possessed the
authority before the merger, but did not thereafter, to finally
consummate their own bargaining agreements, a question of
-22-
continuity of identity would be raised."), enforced 885 F.2d 175 ________
(4th Cir. 1989), cert. denied, 494 U.S. 1026 (1990). ____________
We disagree. The case law Sullivan relies on for
support involve a veto power that is invoked in every situation,
unlike here. See, e.g., Garlock Equip. Co., 288 N.L.R.B. at __, ___ ____ ___________________
1988 WL 213720 at *13 (finding lack of continuity where, inter _____
alia, representative of new district lodge must consent to every ____
contract, creating a de facto veto). We are more persuaded by
the Board's reasoning in Seattle-First, 290 N.L.R.B. at __, 1988 _____________
WL 213911 at *4. There, as here, the former practice required
ratification of a new contract by the membership, but after
merger the new executive council could accept or reject a final
contract offer without membership approval. The Board found
that, as the executive council's authority was limited to
occasions where the membership had rejected a strike or other
economic action, as here, the membership did in 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, without comment, that the grievance
handling procedures for Local 600M were the same as for Local
109C. The Board adopted that finding, and concluded that, for
Local 139B, the limited evidence before it demonstrated no
significant difference in grievance handling procedures. Both
before and after the transfer, the president of the 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 union official, and now the
administration would be undertaken by Boston-area President
Carlsen. 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, arbitration decisions, contract
proposals, or grievance resolutions, effectively undermining the
preservation of continuity in contract administration. We agree
with the Board that, as any informal settlement of a grievance
has no precedental value, this is not a point of great
significance. Indeed, Sullivan offers no evidence that Local
600M could not, in fact, access such records if a need arises.
Finally, Sullivan focuses on 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 by a
pressroom steward, and concludes that Local 600M intended to
systematically blur the line between the bindery and pressroom
units. We disagree. Local 139B never had a chapel chairman,
according to Becht's testimony, because he could not find anyone
willing to do the job. In this situation, we agree with the
Board that the use of another Sullivan employee who is from the
-24-
former Local 109C instead of from Local 139B does not mark a
substantial difference.
Strike Votes Strike Votes ____________
With respect to strike votes, the Board found, and we
agree, that the basic procedures of the locals are substantially
similar. Sullivan's argument to the contrary is based on a Local
600M by-laws provision, which allows the executive board to call
a strike in shops with 25 or fewer members without holding any
kind of a vote. Before doing so, the executive board must be
satisfied that the membership and the International support the
strike and that the strike would have no adverse effect on the
Local. The Board discounted the danger of this provision,
relying on Carlsen's testimony that the actual practice was to
have the individual shop affected conduct a vote by secret
ballot, with a two-thirds majority necessary to authorize a
strike. Sullivan's position is that Carlsen's testimony
regarding Local 600M's normal policy regarding strike votes would
not apply here, because Sullivan's employees fall within the 25
or fewer exception to the rule. Sullivan points out that Carlsen
never stated that the executive board did not have the right to
order a strike in such a small shop, or that the executive board
never did.
We find support for the Board's conclusion in the
following testimony by Local 600M President Carlsen:
JUDGE BERNARD: . . . . Are you
testifying that in the respects we've
just discussed, the strike fund, the
binding nature of a strike vote by the
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Local 600M, these remaining shops,
including Sullivan . . . , the members
there, . . . have retained their
autonomy?
THE WITNESS: They have retained their
autonomy as to the right to vote on a
contract or take an individual strike,
but the Local would support them if they
voted to go on strike.
If we vote to strike Sullivan
Brothers, Sullivan Brothers would also
have the facilities of the merged fund.
JUDGE BERNARD: Getting down to the
bottom line just numbers 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). As Sullivan noted, Carlsen never
stated that the by-law in question would not be applied.
However, Carlsen's statement that the Sullivan shops "retained
their autonomy as to the right to . . . take an individual
strike" offers evidentiary support for the Board's conclusion
that "there is, at most, a minimal difference between the two
locals' premerger procedures and those of [Local 600M]."
Sullivan II, 317 N.L.R.B. at __, 1995 WL 318651 at *6. The ____________
burden is on Sullivan to show that there is a lack of substantial
continuity between the locals: here, where the Board can point
to evidence that the by-law at issue is not enforced, Sullivan's
failure to raise record evidence disproving that assertion
requires that we affirm the Board's conclusion. Cf. Seattle- ___ ________
First, 290 N.L.R.B. at __, 1988 WL 213911 at *5 n. 11 (holding _____
that international's potential authority to impose trusteeship on
a local for failure to obtain authorization to strike "does not
-26-
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. Assets and Records 3. Assets and Records
The Board found that Local 139B's assets were
transferred to Local 600M and commingled with other funds, but
that the evidence indicated that "the full resources of the
[Local] are available to the former Local 139B unit." Sullivan ________
II, 317 N.L.R.B. at __, 1995 WL 318651 at *7. As for Local 109C, __
its assets were transferred into the Local 600M strike or
emergency fund, with similar results. We agree with the Board
that such commingling is not dispositive, and that "it would
frustrate a purpose of the Act to find that employee expressions
of desire to achieve [increased financial support] through
affiliations and mergers automatically raised questions
concerning representation." Id. Therefore, although there is a ___
substantial difference in the locals' assets prior to and after
the administrative transfer, like the Board we are not disposed
to give that fact great weight.
4. Members' Rights and Duties 4. Members' Rights and Duties
Dues Dues ____
The Board found a "slight difference" in the dues
structure for Local 139B: the transfer resulted in a change from
a flat dues rate to a sliding scale, resulting in an overall
-27-
increase. The ALJ found a similar increase for local 109C
members, from $8.00 to $9.22. No initiation fees were charged to
members of either local. Sullivan argues now that the change to
a sliding scale system based on salary, plus the difference in
the dues charged, amounts to a substantial change. We find
nothing in its argument or the case law it relies on, however, to
convince us that the Board's findings were incorrect. See ___
Central Wash. Hospital, 303 N.L.R.B. at __, 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 to accept outside
employment. The Board, however, citing the lack of evidence that
Local 600M ever enforced the restrictions, found no significant
change. The Board relied on the premise, cited above, that
actual practice, not policy, controls. See Sullivan I, 38 F.3d ___ __________
at 66-67. But there was no evidence here that the by-laws were
not followed on this issue: thus, the only evidence we find on
this record is the restriction itself. See id. Accordingly, we ___ ___
find that Sullivan has met its burden of showing significant
change, and the Board's conclusion lacks substantial evidentiary
support.
Voting Voting ______
Finally, Sullivan argues that a fundamental difference
-28-
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, the territorial jurisdiction of Local
600M extends throughout eastern Massachusetts and part of New
Hampshire. More importantly, Sullivan emphasizes that through
the transfer, its employees in Locals 139B and 109C went from
being part of locals with 8-10 and 40 members, respectively, to
membership in a local of over 700 people. Sullivan concludes
that such a dramatic increase in size would result in a severe
diminution of voting strength, a factor the Board has considered
in finding a question concerning representation has been raised.
See, e.g., Pacific Southwest Container, Inc., 283 N.L.R.B. 79, ___ ____ __________________________________
__, 1987 WL 109286, at *2 (1987). Sullivan notes that even where
a merger is between two locals of the same international, as the
administrative transfer is here, the Board has found a lack of
continuity where there was a similar disparity of size. See ___
Quality Inn Waikiki, 297 N.L.R.B. 497, __, 1989 WL 224495, at *10 ___________________
(1989).
In making its comparison in substantial continuity
cases, the Board generally looks at the local in question
immediately before the affiliation, merger, or transfer. See ___
e.g., Seattle-First, 290 N.L.R.B. at __, 1988 WL 213911 at *2. ____ _____________
Here, however, the Board, without citing any authority, expanded
the period in this case to include the locals' position prior to
-29-
NADCO's closing. Accordingly, the Board concluded that the
merger left the members of the locals in their historical
position: "a small segment of a larger local representing
similar craft employees within the same geographic area under the
same International." Sullivan II, 317 N.L.R.B. at __, 1995 WL ___________
318651 at *7.6 It argues again now that the proper comparison in
terms of size is between the historic size of the locals -- about
240 for Local 139B and 125 for Local 109C in 1990 -- and not
their size right before the merger, as membership had been
diminished by NADCO's closing. Viewed from that perspective,
appellee calculates, prior to NADCO's closing employees of
Sullivan constituted about seven percent of the membership of
each local; now, Sullivan's employees are 28 of 700, or about
four percent, of Local 600M. However, we need not determine here
whether the Board erred in considering the pre-NADCO closing
figures, for we find that, even assuming Sullivan can establish
that there are significant differences in voting power, there is
still substantial continuity between Locals 109C and 139B and
Local 600M.
Whether a merger, transfer, or affiliation
substantially changes a local is a question of degree. Our
measure of the changes here reveals that it falls somewhere in
the gray area between a complete transformation in identity and
no change at all. On balance, while we recognize that
____________________
6 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 have examined leads us to conclude that the
changes are not sufficiently dramatic to alter the identity of
the bargaining representative and raise a question concerning
representation.
We do not reach this conclusion merely because the
majority of the factors we examined weigh in favor of affirming
the NLRB's decision: this is not a mathematical analysis.
Simply put, we cannot find that the changes here -- an increase
in assets, a new local by-law restricting outside employment, a
change in leadership due to the previous officers' refusal to
stay on, and a decrease in immediate voting strength --
substantially changed the local when it is governed by the same
International constitution and by-laws, when the system for
contract proposal, negotiation, and ratification as well as for
grievances and strike votes is substantially the same as before,
and when even the dues have stayed essentially the same.
Accordingly, we affirm the Board's finding of substantial
continuity.
II. Local 600M II. Local 600M __________
Sullivan's contract with Local 139B provided for the
checkoff of employees' union dues upon their written
authorization. In its decision and order, the Board refused to
order Sullivan to honor the dues checkoff provision of the
expired bookbinders' contract. The Board stated that it did so
-31-
because the bookbinders' agreement had expired, and "it is well
settled that the checkoff obligation does not survive contract
expiration." Sullivan II, 317 N.L.R.B. at __, 1995 WL 318651 at ___________
*9 n.15. The Union then filed a request for reconsideration of
the remedy, which the Board denied. Before us, Joint Petitioners
Local 600M and the GCIU (together, the "Union"), argue that the
Board erred.
In reviewing the Union's claim, we will not substitute
our judgment for the Board's. We treat the Board's choice of
remedy with particular deference: "[a] Board-ordered remedy
'should stand unless it can be shown 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 support those decisions
with substantial evidence, in either the original decision and
order or its order denying the request for reconsideration. See ___
Burlington Truck Lines v. United States, 371 U.S. 156, 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 and supported its decision, unlike in Burlington __________
Truck Lines, on which the Union relies. See Burlington Truck ___________ ___ _________________
-32-
Lines, 317 U.S. at 167 ("There are no findings and no analysis _____
here to justify the choice made, no indication of the basis on
which the Commission exercised its expert discretion."); see also ________
District 1199P v. NLRB, 864 F.2d 1096, 1100 n.3 & 1102 (3d Cir. _______________ ____
1989). The Board found the pertinent fact -- that the contract
had expired -- and applied the relevant law -- that a checkoff
obligation does not survive contract expiration. The two cases
the Board relies on support its statement of the law. See Litton ___ ______
Fin. Printing Div. v. NLRB, 501 U.S. 190, 198-99 (1991) (noting __________________ ____
that the Board has held that dues check-off provisions are
excluded from the general rule that "an employer commits an
unfair labor practice if, without bargaining to impasse, it
effects a unilateral change of an existing term or condition of
employment"); Indiana & Mich. Elec. Co., 284 N.L.R.B. 53, __, __________________________
1987 WL 89684, at *3 (1987) ("The exception . . . permitting
unilateral abandonment of . . . checkoff arrangements after
contract expiration is based on the fact . . . that '[t]he
acquisition and maintenance of union 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 651 F.2d 136 (2d ________
Cir. 1981), cert. denied, 455 U.S. 946 (1982). That the 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 N.L.R.B. 817 (1988), supplemented, 305 N.L.R.B. _________ ____________
764 (1991), applies here. That case addressed what remedy
applies when a union breaches its duty of fair representation
with regard to processing an employee's grievance. The Board
held that once the General Counsel meets its initial burden of
proving that the underlying grievance was "not clearly
frivolous," the burden shifts to the union to establish that the
grievance was not meritorious. If it cannot, the employee will
be awarded back pay. See 290 N.L.R.B. at ___, 1988 WL 214001 at ___
*5.
Specifically, the Union agrees that if Sullivan had
bargained in good faith with the Union, under Litton and Indiana ______ _______
& Michigan Electric Sullivan would not have committed an unfair ____________________
labor practice by refusing to continue in effect the dues
checkoff provision of the expired contract. However, the Union
points out, Sullivan did not bargain in good faith here; indeed,
it 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 posits, the uncertainty
concerning whether Sullivan would have agreed to continue in
effect the dues checkoff provision pending agreement or impasse
on a new contract should be assessed against Sullivan.
-34-
Therefore, the Union concludes, Sullivan should be ordered to
make the Union whole by remitting dues for the bookbinder unit
employees for the entire period from the date Sullivan ceased
doing so, with interest. Refusal to do so, the Union maintains,
would reward Sullivan for its unlawful refusal to recognize and
bargain with the Union.
The Board responds that Mack-Wayne Closures is _____________________
distinguishable. Contrary to the Union's contention, the Board
argues, Mack-Wayne Closures did not rest solely on the principle ___________________
that uncertainty should be resolved against the wrongdoer whose
conduct created the uncertainty. It also rested on two other
considerations. First, the Board noted that "the union obviously
[had] more particular knowledge regarding the merits of the
underlying grievance than the General Counsel," such 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." 290 N.L.R.B. at ___, 1988 WL
214001, at *4. This consideration does not apply here. Second,
the Board argues, Mack-Wayne Closures also stressed "the special ____________________
character of the grievance-arbitration process, where the
employee is in effect 'presumed' to be 'innocent.'" Id. at *5. ___
If the burden were not shifted, the employee would lose a
procedural and tactical advantage, i.e., of having the employer
bear the burden of proof. Id. at *4. The Board points out that ___
no similar loss of rights 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 as part of a valid collective
bargaining agreement. See Litton, 501 U.S. 190, 199 (1991). ___ ______
Also, it points out, it cannot order an employer to 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. See H.K. Porter Co. v. NLRB, 397 ___ _______________ ____
U.S. 99, 108 (1970) ("[A]llowing the Board to 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 of a contractual checkoff provision cannot extend
beyond the expiration date of the contract, where the employer
has not agreed to a subsequent contract containing such a
provision. See Ortiz Funeral Home Corp., 250 N.L.R.B. at 731 & ___ _________________________
n.6 (noting that "a union's right to dues checkoff . . . 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 a new contract if Sullivan had
not refused to bargain. Since the Board would be left having to
decide, in essence, what the parties should have agreed to, it
contends that it properly declined to speculate.
We find the Board's reasoning persuasive. Simply put,
it is too far a reach to extrapolate the Board's fairly narrow
reasoning in Mack-Wayne Closures into this context. See Mack- ____________________ ___ _____
Wayne Closures, 290 N.L.R.B. at __, 1988 WL 214001, at *5 _______________
(describing the specific circumstances in which the burden of
proof shifts to the union). The Union has not presented any
authority that would help us close that gap. Accordingly, as the
Union has not shown that the Board's remedy is "'a patent attempt
to achieve ends other than those which can fairly be said to
effectuate the policies of 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 mere fact that a majority of the members of both
Locals 109C and 139B voted for the administrative transfers at
issue here does not, and cannot, resolve the question of whether
a question of representation has arisen. "In determining whether
a 'question concerning representation' exists because of lack of
continuity, the Board is not directly inquiring into whether
there is majority support for the labor organization after the
changes at issue, but rather is seeking to determine whether the
-37-
changes are so great that a new organization has come into being
-- one that should be required to establish its status as a
bargaining representative through the same means that any labor
organization is required to use in the first instance." Western _______
Comm'l Transp., Inc., 288 N.L.R.B. 214, __, 1988 WL 213704, *5 _____________________
(1988). Nonetheless, as the Supreme Court recently commented,
[t]he Board is . . . entitled to
suspicion when faced with an employer's
benevolence as its workers' champion
against their certified union, which is
subject to a decertification petition
from the workers if they want to file
one. There is nothing unreasonable in
giving a short leash to the employer as
vindicator of its employees'
organizational freedom.
Auciello Iron Works, Inc. v. NLRB, 116 S. Ct. 1754, 1760 (1996). __________________________ ____
For the reasons stated above, we affirm. affirm ______
-38-