USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 94-1569
IN RE: ROSEMARY PYE,
ON BEHALF OF NATIONAL LABOR RELATIONS BOARD,
Plaintiff, Appellant,
v.
SULLIVAN BROTHERS PRINTERS, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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John A. Mantz, Attorney for National Labor Relations Board, with
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whom Ellen A. Farrell, Assistant General Counsel, Frederick L.
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Feinstein, General Counsel, Robert E. Allen, Associate General
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Counsel, and Corinna L. Metcalf, Deputy Assistant General Counsel,
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were on brief for appellant.
Robert P. Corcoran with whom Gleeson & Corcoran was on brief for
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appellee.
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October 26, 1994
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STAHL, Circuit Judge. The National Labor Relations
STAHL, Circuit Judge.
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Board appeals the denial of its petition for a preliminary
injunction requiring Sullivan Brothers Printers, Inc., to
recognize and bargain with Local 600M, Graphic Communications
International Union ("GCIU"), AFL-CIO, as the exclusive
representative of the Sullivan Brothers pressmen and
bookbinders. The issue at the core of the dispute is whether
Local 600M had properly assumed the mantle of two smaller,
now-defunct locals that formerly represented the company's
pressmen and bookbinders. The district court concluded that
the Board had failed to demonstrate a likelihood of success
in the underlying proceeding and denied its petition for
interim relief. Finding no abuse of discretion by the
district court, we now affirm.
I.
I.
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Background
Background
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A. The Demise of Locals 109C and 139B
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The relevant facts are undisputed. Sullivan
Brothers is a commercial printing concern located in Lowell,
Massachusetts. For more than thirty years, two separate
locals represented the company's pressmen and bookbinders --
Local 109C and Local 139B, respectively, both affiliates of
GCIU. Local 109C was the larger of the two locals,
representing in 1990 more than 250 workers at five companies
in the Lowell area, including eighteen pressmen at Sullivan
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Brothers. Local 139B represented about 135 bookbinders and
general helpers at two companies in the same area,
approximately ten of whom were employed by Sullivan Brothers.
The vast majority of the members of each local -- as many as
240 members of 109C, and 125 members of 139B -- worked at
another printing company, North American Directory
Corporation ("NADCO"). Historically, NADCO workers dominated
the leadership roles of both locals, occupying virtually all
of the officer and executive board positions.
In June 1991, NADCO shut down its bindery, and in
February 1993, it closed its plant altogether. NADCO's
closing reduced Local 109C to roughly forty members -- about
fifteen employed by Sullivan Brothers -- and Local 139B to
just eight to ten members, all at Sullivan Brothers. The
shutdowns also left the two locals largely without
leadership. Following the 1991 bindery closing, Local 139B
president Oscar Becht and secretary-treasurer Jeannette
Pickels, both NADCO employees, were the only local officers
or directors remaining in office, having obtained other jobs
in the NADCO plant pending the 1993 shutdown date. Local
109C president Henry Boermeester, a NADCO pressman, announced
at a membership meeting in 1992 that he would step down when
the plant closed the following year. None of the few dozen
remaining members of the two locals expressed interest in
filling any of the leadership positions at either local.
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With membership at low levels -- the GCIU
constitution permits the international to rescind a local's
charter when membership dips below fifty -- Boermeester and
Becht began to explore and discuss with their members the
possibility of merging the two locals or transferring1 them
to a larger local. The unwillingness of any remaining 109C
and 139B members to assume leadership positions made merging
the two locals impracticable.2 Thus, in January 1993, Local
109C members voted to surrender their charter and transfer to
Local 600M, a GCIU local headquartered in Boston comprising
about 700 workers in the printing industry. The
administrative transfer became effective on July 1, 1993.
Local 139B members followed suit in March, with the transfer
effective on May 1, 1993. The two locals' assets, totalling
about $15,000, were transferred to Local 600M with no
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1. Under the GCIU constitution and by-laws, two locals merge
when both surrender their respective charters and negotiate a
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new set of governing by-laws acceptable to the members of
both merging locals. That document is then put to a secret
ballot vote and, if approved, a new charter is issued to the
new entity. An administrative transfer, on the other hand,
occurs when one GCIU local surrenders its charter and its
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members vote to join, and are accepted by, another GCIU
local. The accepting local's charter and by-laws remain
intact.
2. At the administrative hearing on the underlying
complaint, Local 109C president Boermeester testified as
follows: "Well, if they had merged together to form a Union,
there still has to be somebody to lead the Union. Between
the two groups or two units, there was still no leadership."
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condition that they be used for the benefit of the 109C or
139B members.
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B. Local 600M
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Since they had joined a sister GCIU local, the
former 109C and 139B members were still subject to the
International's constitution and by-laws. Local 600M's
structure, constitution and by-laws, however, differ from
those of former locals 109C and 139B in a number of ways:
(1) Local 600M's territory extends well beyond the
Lowell area, covering about forty shops throughout
eastern Massachusetts and southern New Hampshire.
Its trade jurisdiction is also greater: while
approximately 500 of its 700 members work in the
same classifications as the 139B and 109C members,
Local 600M accepts all types of printing industry
workers, including shipping clerks, truck drivers,
and envelope and box manufacturers.
(2) Local 600M dues are calculated on a sliding
scale based on salary, rather than on a flat rate,
as locals 109C and 139B calculated dues; thus, the
pressmen would see their dues increase from $8 to
$9.22 per week, while the bookbinders' dues would
increase from $6 to $7.95.3
(3) Contract negotiation and ratification, as well
as strike authorization, could also be different at
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3. Local 600M is not currently collecting dues from the
former 109C and 139B members because of Sullivan Brothers'
refusal to recognize it.
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Local 600M. As 109C and 139B members, the Sullivan
Brothers bookbinders and pressmen were free to
suggest contract terms for upcoming negotiations in
informal "proposals meetings" held with their
negotiators at a local donut shop or on the shop
floor. A Local 600M by-law, however, requires
members to submit proposed contract terms in
writing to the president of the local at least
ninety days before the contract expiration date.
Another by-law gives the executive board the power
to accept a contract against the wishes of a
particular bargaining unit if the bargaining unit
fails to approve the contract and at the same time
fails to authorize, by a two-thirds majority,
further action up to and including a strike.
Locals 139B and 109C had no such by-law provisions.
Local 600M by-laws also empower the executive
board, on its own, to call a strike in unspecified
"special cases" for any bargaining unit comprising
fewer than twenty-five members -- a category that
includes the Sullivan Brothers pressmen's and
bookbinders' units.
(4) Local 600M's by-laws impose a number of new
work restrictions on the Sullivan Brothers pressmen
and bookbinders. As members of Local 600M, they
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may not: solicit or accept work without union
consent; perform trade work outside the shop where
they are regularly employed without union
permission; work for wages less than those provided
for in the contract under which they are covered
without union approval; work overtime contrary to
executive board order; or take vacation other than
as prescribed by their governing contracts absent
executive board permission to take money instead of
scheduled vacation time.
(5) The leadership of Local 600M is almost
entirely different from that of 109C and 139B. Of
the defunct locals' two dozen officers and
directors, only Boermeester assumed any kind of
role in Local 600M (or even joined it). With the
aid of Local 600M president George Carlsen,
Boermeester obtained a seat on the local's
executive board for the duration of a departing
board member's term. Local 139B president Becht
was offered a position on 600M's board and was
asked to assist in upcoming contract negotiations
with Sullivan Brothers, but he turned down the
board position and made only a tentative commitment
to the negotiations, depending upon his
availability. In addition, Steven Wysocki, Local
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109C's "chapel chairman," or shop steward, at
Sullivan Brothers, continued in the same capacity
for the pressmen's unit of 600M. Boermeester and
Wysocki, who along with another 109C officer had
negotiated Local 109C's previous contracts with
Sullivan Brothers, agreed to help Carlsen negotiate
the next contract when the current contract expired
in 1995. Boermeester already has negotiated
contracts for the other two former 109C shops
subsumed by 600M.
C. The Current Dispute
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On July 6, 1993, Local 600M formally notified
Sullivan Brothers of the administrative transfers and asked
the company to recognize and bargain with it as the exclusive
representative of the former 109C and 139B members. The
contract between 139B and Sullivan Brothers was due to expire
on August 31, 1993; 109C's contract was effective through May
31, 1995. Local 600M proposed that Sullivan Brothers simply
extend the 139B contract so that it expired contemporaneously
with the 109C contract -- adjusting it in the interim for
wage and benefit increases granted in 109C's most recent
contract -- so that contracts (or possibly a single contract)
could be negotiated for the two units at the same time. On
August 11, 1993, Sullivan Brothers informed Local 600M that
it did not consider itself bound by the transfer and refused
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to recognize Local 600M. In addition, beginning on July 1,
1993, Sullivan Brothers took unilateral actions that Local
600M alleges unlawfully altered some of the terms and
conditions of employment in the bookbinders' and pressmen's
units.4
Sullivan Brothers' refusal to recognize Local 600M
prompted Local 600M to file an unfair labor practice charge
with the NLRB on August 23, 1993. The Board issued an unfair
labor practice complaint on October 28, 1993, subsequently
amended on January 20, 1994, which charged Sullivan Brothers
with violating sections 8(a)(1) and (5) of the National Labor
Relations Act, 29 U.S.C. 158(a)(1) and (5), for refusing
to bargain with Local 600M and for unilaterally changing the
terms and conditions of employment. An administrative law
judge ("ALJ") conducted a hearing on the matter on February 3
and 4, 1994.5 On March 7, 1994, more than six months after
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4. Sullivan Brothers: (1) ceased making contributions to
the employees' pension plans; (2) announced a new 401(k)
plan; (3) ceased deducting union dues and remitting them to
the employees' bargaining representatives; (4) installed and
began to use new equipment in the pressmen's unit; (5)
granted wage increases to employees in the bookbinders' unit;
(6) gave Christmas bonuses to employees in both units; and
(7) implemented a proofreading bonus program for employees in
both units.
5. On July 15, 1994, the ALJ issued his decision on the
underlying complaint. The ALJ found that Local 600M was in
fact the successor to Local 109C and that Sullivan Brothers
had an obligation to bargain with it. The ALJ also found
that Sullivan Brothers had no obligation to recognize Local
600M as Local 139B's successor because the vote to transfer
violated minimal standards of due process. We accord the
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it initially received the union's complaint, and more than
four months after it had issued its own complaint, the Board
petitioned the district court for a temporary injunction
pursuant to section 10(j) of the Act, 29 U.S.C. 160(j).6
The petition sought an order requiring Sullivan Brothers,
pending final resolution of the issues raised in the
underlying complaint, to recognize and bargain with Local
600M as the representative of the pressmen's and bookbinders'
units, and to rescind, upon Local 600M's request, certain
unilateral changes made in the terms and conditions of the
members' employment. The district court found that "a
question exists as to the continuity of representation
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ALJ's decision, coming after the district court's ruling, "no
independent weight in assessing whether the court erred,"
Maram v. Universidad Interamericana de Puerto Rico, 722 F.2d
_____ __________________________________________
953, 959 (1st Cir. 1983). Since the district court based its
findings and conclusions on the administrative hearing
record, we note that, to the extent it proves useful, "it is
appropriate to look to evidence the ALJ points to that was
before the court, but of which the court failed to take
note." Id.
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6. Section 10(j) provides:
The Board shall have power, upon issuance
of a complaint as provided in subsection
(b) of this section charging that any
person has engaged in or is engaging in
an unfair labor practice, to petition . .
. for appropriate temporary relief or
restraining order. Upon the filing of
any such petition the court shall cause
notice thereof to be served upon such
person, and thereupon shall have
jurisdiction to grant to the Board such
temporary relief or restraining order as
it deems just and proper.
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provided by Local 600M" and that the Board had failed to
establish a likelihood of success on the merits, and
concluded that injunctive relief was not just and proper.
This appeal followed.
II.
II.
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The Section 10(j) Preliminary Injunction Standard
The Section 10(j) Preliminary Injunction Standard
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In considering a petition for interim relief under
section 10(j), a district court must limit its inquiry to
whether (1) the Board has shown reasonable cause to believe
that the defendant has committed the unlawful labor practices
alleged, and (2) whether injunctive relief is, in the
language of the statute, "just and proper." See Asseo v.
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Centro Medico del Turabo, 900 F.2d 445, 450 (1st Cir. 1990);
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Asseo v. Pan American Grain Co., 805 F.2d 23, 25 (1st Cir.
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1986); Maram v. Universidad Interamericana de Puerto Rico,
_____ ____________________________________________
Inc., 722 F.2d 953, 958 (1st Cir. 1983). The district court
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is not empowered to decide whether an unfair labor practice
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actually occurred. Centro Medico del Turabo, 900 F.2d at
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450. In assessing whether the Board has shown reasonable
cause, the district court need only find that the Board's
position is "fairly supported by the evidence." Id. In
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satisfying the court that injunctive relief is just and
proper, however, the Board faces a much higher hurdle, for
here the district court must examine "the whole panoply of
discretionary issues with respect to granting preliminary
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relief." Centro Medico del Turabo, 900 F.2d at 454 (quoting
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Universidad Interamericana de Puerto Rico, 722 F.2d at 958).
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Thus, the district court must apply the familiar, four-part
test for granting preliminary relief. Under this test, the
Board must demonstrate:
(1) A likelihood of success on the
merits;
(2) The potential for irreparable
injury in the absence of
relief;
(3) That such injury outweighs any
harm preliminary relief would
inflict on the defendant; and
(4) That preliminary relief is in the public
interest.
See, e.g., Narragansett Indian Tribe v. Guilbert, 934 F.2d 4,
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5 (1st Cir. 1991); Centro Medico del Turabo, 900 F.2d at 453.
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When, as in this case, the interim relief sought by the Board
"is essentially the final relief sought, the likelihood of
success should be strong." Pan American Grain Co., 805 F.2d
______ ______________________
at 29 (emphasis added).
Our review of the district court's analysis is
limited. We review the court's determination of reasonable
cause for clear error, and we examine its ultimate decision
to grant or deny equitable relief for abuse of discretion.
Centro Medico del Turabo, 900 F.2d at 450; Pan American Grain
________________________ __________________
Co., 805 F.2d at 25. A court abuses its discretion when, in
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determining the likelihood of success on the merits, it
applies an improper legal standard or erroneously applies the
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law to particular facts. Feinstein v. Space Ventures, Inc.,
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989 F.2d 49, 51 (1st Cir. 1993).
III.
III.
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Discussion
Discussion
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The Board argues on appeal that the district court
erred in concluding that the Board failed to demonstrate a
likelihood of success on the merits and that it abused its
discretion in denying its petition for injunctive relief. We
now address these arguments.
A. The District Court's Ruling
A. The District Court's Ruling
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1) Reasonable Cause
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The district court made no reasonable cause
finding, instead proceeding directly to assess the Board's
likelihood of success on the merits. Neither party argues
that this in itself constituted error; we assume arguendo
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that the district court did in fact find reasonable cause,7
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7. Perhaps the court saw no reason to labor over a test of
questionable utility; we are not unsympathetic. Even if a
court makes an explicit finding that the Board had reasonable
cause, it must still assess, as part of the "just and proper"
determination, the relative likelihood that the Board will in
fact ultimately prevail. See Centro Medico del Turabo, 900
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F.2d at 455 ("[W]e are satisfied . . . that there is
reasonable cause to believe that the alleged unfair labor
practices were committed, and that there is substantial
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likelihood of success") (emphasis added); Universidad
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Interamericana de Puerto Rico, 722 F.2d at 959 (stating that
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the reasonable cause determination consists of determining
"whether the Regional Director's position was fairly
supported and, if so, for the purpose of overall weighing,
how likely so") (emphasis added).
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and turn to the district court's determination that the Board
failed to demonstrate a likelihood of success.
2) No Likelihood of Success
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The gravamen of the Board's unfair labor practice
complaint is that the administrative transfer of Locals 109C
and 139B to Local 600M raised no question of representation.
In other words, the Board asserts that Local 600M took over
the representation of the Sullivan Brothers bookbinders and
pressmen from locals 139B and 109C with sufficient continuity
to keep intact Sullivan Brothers' obligations to recognize
and bargain with Local 600M and to perform under the existing
collective bargaining agreements. The district court
concluded that the Board had not demonstrated that it was
likely to win that argument. In so holding, the district
court relied primarily on (1) changes in leadership effected
by the transfer; (2) changes in a number of the rights and
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Two circuits have recently dropped the reasonable
cause analysis in section 10(j) cases, reasoning that (1) it
was erroneously introduced in section 10(j) cases by analogy
to cases arising under section 10(l), which, unlike section
10(j), expressly requires that the Regional Director find
reasonable cause prior to seeking an injunction, and (2) it
is entirely superfluous, since determining that equitable
relief is appropriate necessarily includes a finding that the
Board is likely to succeed on the merits -- a virtual
impossibility without also meeting the minimal reasonable
cause standard. See Miller v. California Pacific Medical
___ ______ ___________________________
Center, 19 F.3d 449, 456-67 (9th Cir. 1994) (en banc); Kinney
______ ______
v. Pioneer Press, 881 F.2d 485, 487-93 (7th Cir. 1989). We
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find no fault in our sister circuits' rulings. However, the
relative merits of retaining or discarding the reasonable
cause requirement were not argued in this case, and we
therefore decline to rule on the issue.
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duties of the local members; and (3) changes in the manner of
negotiating, ratifying and administering contracts and
calling strikes. The Board argues that these changes were
non-existent, illusory, or insufficient to constitute a
change in the representative's identity, and that the
district court's conclusion was erroneous.
We cannot say that any single one of the changes
cited by the district court would result in a change of
identity for a union, or even that, taken together, all of
these changes will certainly result in an ultimate
determination for Sullivan Brothers. Our task here is simply
to determine whether the district court erred in finding
significance in these facts and whether it abused its
discretion in concluding that the Board had not demonstrated
a clear likelihood of success. Bearing in mind that "[t]he
ultimate question is whether the union . . . operates in
substantially the same way as it did before," Seattle-First
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Nat'l Bank v.NLRB, 892 F.2d 792, 799 (9th Cir. 1989), cert.
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denied, 496 U.S. 925 (1990), we think the district court
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acted well within its discretion by declining to answer that
question in the affirmative.
To determine whether a particular affiliation,
merger, or transfer interrupts an existing collective
bargaining relationship, the Board asks: (1) whether the
merger or transfer vote occurred under "circumstances
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satisfying minimum due process"8 and (2) whether there was
"substantial continuity" between the pre- and post-merger
union.9 Southwick Group d/b/a Toyota of Berkeley, 306
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N.L.R.B. 893, 899 (1992) (quoting News/Sun-Sentinel Company,
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290 N.L.R.B. 1171 (1988), enforced 890 F.2d 430 (D.C. Cir.
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1989), cert. denied, 497 U.S. 1003 (1990)); see also
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Insulfab, 789 F.2d at 965.
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The "substantial continuity" prong is a fact-
intensive test that compares the pre- and post-merger labor
organizations and asks "whether the 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."
Toyota of Berkeley, 306 N.L.R.B. at 900. No single factor is
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determinative, nor is a particular checklist prescribed.
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8. Sullivan Brothers apparently does not challenge the
procedures surrounding Local 109C's and Local 139B's transfer
votes in this proceeding, and we therefore offer no opinion
on whether those votes satisfied minimal due process
standards. See supra note 5.
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9. Union affiliations and mergers do not necessarily, or
even usually, raise a question of representation. NLRB v.
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Insulfab Plastics, Inc., 789 F.2d 961, 964 (1st Cir. 1986).
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A question of representation arises when the affiliating
union undergoes changes "sufficiently dramatic to alter the
union's identity." Id. at 964-65. Otherwise, affiliation
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"is an internal union matter that does not affect the
representative status of the bargaining agent or end the
employer's duty to continue its relationship with that
union." Id. at 965.
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Rather, "[t]he Board considers the totality of a situation."
Id. Among the factors that the Board has traditionally
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considered are: "the continued leadership responsibilities
of existing union officials, the perpetuation of membership
rights and duties, the continuance of the manner in which
contract negotiations, administration, and grievance
processing are effectuated, and the preservation of the
certified representative's assets, books and physical
facilities." Id. See also Insulfab, 789 F.2d at 965
___ ___ ____ ________
(listing as factors to consider "structure, administration,
officers, assets, membership, autonomy, by-laws, size"
(quoting NLRB v. Pearl Bookbinding, 517 F.2d 1108, 1111-12
____ __________________
(1st Cir. 1975)); J. Ray McDermott & Co. v. NLRB, 571 F.2d
_______________________ ____
850, 857 (5th Cir.) ("we must consider whether changes have
occurred in the rights and obligations of the union's
leadership and membership, and in the relationships between
the putative bargaining agent, its affiliate, and the
employer"), cert. denied, 439 U.S. 893 (1978).
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The Board argues that the district court erred in
performing the substantial continuity analysis by
exaggerating and overemphasizing changes in leadership while
ignoring other evidence of continuity. We recognize that
"there is no requirement that officers of a merged local must
become officers of the new local," Service America Corp., 307
________ _____________________
N.L.R.B. 57, 60 (1992) (emphasis added), and that continued
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leadership may be provided by representatives other than
union officers if they fill positions of responsibility and
trust. As evidence of continuity of leadership, the Board
points to the continuation of Wysocki in his role as shop
steward, former Local 139B president Becht's tentative
commitment to participate in future negotiations, and former
Local 109C president Boermeester's election to Local 600M's
executive board and his continued participation in contract
administration and negotiation.
The evidence, however, supports a finding that the
transfer did in fact change the relationship between the
putative bargaining agent and Sullivan Brothers. Becht's
tentative commitment remained just that, and Boermeester
failed to obtain as a condition of the transfer an express
guarantee that he would oversee day-to-day contract
administration and future negotiations with Sullivan
Brothers. Moreover, Boermeester's term on the executive
board expires at the end of 1994, when he must face
reelection before the entire local. Furthermore, Local 600M
president Carlsen notified Sullivan Brothers in writing
following the transfers that henceforth it would be his
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office that would handle contract administration,
negotiations, and grievances, and that future communications
concerning those matters should be directed accordingly.
Compare Toyota of Berkeley, 306 N.L.R.B. at 904 (finding
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substantial continuity following merger where, inter alia,
_____ ____
former union's principal official, as a condition of the
merger, "continued to exercise sole control over the
collective bargaining and day-to-day contract administration
and grievance handling on behalf of employees formerly
represented by [the merged] Local").
In arguing that there was in fact continuity of
leadership, the Board relies heavily on Service America. We
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fail to see how that case controls here. In Service America,
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the Board held that having new representatives negotiate and
administer contracts following a merger does not necessarily
defeat continuity, particularly when the former union would
have undergone a change in leadership anyway. Service
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America, 307 N.L.R.B. at 60. The circumstances in that case
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were entirely different, however, from the case at hand.
First, the merging union in that case, Local 513, still had
1,300 members and a full slate of its own local leaders when
it merged with Local 115. Here, the evidence is undisputed
that no members of Local 139B or 109C wished to take over
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positions of leadership within their own locals; the transfer
occurred in part precisely because the workers had no more
leaders and no prospects of finding any among the ranks --
i.e., they had no more representation. Second, in Service
______________ _______
America, both of Local 513's top officials also served as
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business agents negotiating contracts and handling grievances
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for the union; they continued as full-time business agents,
negotiating contracts and handling grievances, for Local 115.
No former 109C or 139B officer has retained a similar
position of responsibility as part of Local 600M. Wysocki's
continued stewardship and Boermeester's position on Local
600M's executive board represent some continuity of
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leadership for their former local; whether they represent
substantial continuity is doubtful. Our attention has not
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been directed to any case in which the Board ultimately found
substantial continuity when the affiliating or merging union
has undergone the kind of transformation of leadership seen
here. See Garlock Equip. Co., 288 N.L.R.B. 247-253 (1988)
___ ___________________
("[T]he cases have placed emphasis upon whether unit
employees have continued to be represented by the same
officers operating under the same procedures and with the
same degree of autonomy as before the change.").
A host of other factors further distinguishes this
case from Service America. In that case, the dues structure
_______________
remained virtually identical following the merger, contract
ratification and strike vote procedures were similar, and
some of Local 513's assets were retained for the benefit of
its members. Here, the district court found significant a
number of changes in the structure of the union, in the
bookbinders' and pressmen's rights and duties as members, and
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in the procedures for contract negotiation, ratification and
strike votes.10
The Board contends that the district court erred in
assigning importance to these changes -- particularly those
concerning contract ratification and strike votes, which may
be apparent in Local 600M's by-laws but might never be put
into practice. We recognize that actual union practice, and
not just the letter of the by-laws, controls. Central
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Washington Hosp., 303 N.L.R.B. 404, 405 (1991); Seattle-First
________________ _____________
Nat'l Bank, 892 F.2d at 799. In both of those cases,
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however, there was testimony that union practice was actually
contrary to the by-laws in question. Here, Carlsen testified
that Local 600M's by-laws in fact permit the executive board
to accept a contract against the wishes of the majority of a
bargaining unit's members. The record contains no evidence
that that particular provision, or any other provision in
question, does not represent the actual practice of Local
___
600M.
As we have stated previously, interim relief in
section 10(j) cases is not normally appropriate unless it is
clear that ultimate success for the Board will "not prove
____________________
10. For a more complete description of these changes, see
supra part I.B. The district court made no finding regarding
_____
the preservation of former Local 109C's and 139B's assets.
The evidence was undisputed, however, that the assets were
not preserved for the use of the former members but instead
were or would be added to Local 600M's general or emergency
funds.
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difficult." Pan American Grain Co., 805 F.2d at 29. From
_______________________
our perspective, however, the transfer of locals 139B and
109C to 600M exhibited no combination of characteristics on
which the Board has typically based a finding of continuity
in the past. Cf., e.g., Service America, 307 N.L.R.B. 57
___ ____ _______________
(1992) (finding continuity where merger resulted in positions
of significant responsibility for former leaders, virtually
identical rights, responsibilities and dues for members, and
preservation of certain assets for benefit of former
members); Toyota of Berkeley, 306 N.L.R.B. 893 (1992)
____________________
(finding continuity where former local was merged into sister
local as separate, autonomous division with same trade and
geographic jurisdiction; identical principal official and
bargaining agent; identical authority of bargaining agent and
members to negotiate and administer contracts, fashion
bargaining proposals, and call strikes; virtually identical
dues structure; and where by-laws of sister local were
amended as a condition of the merger); May Dep't Stores Co.,
____________________
289 N.L.R.B. 661 (1988) (finding continuity where leadership,
authority, dues, and rights and duties of members remained
intact following merger of four locals into one local with
four administrative districts), aff'd, 897 F.2d 221 (7th
_____
Cir.), cert. denied, 498 U.S. 895 (1990). Without some Board
_____ ______
precedent finding continuity where the changes at least
approach those seen here, we cannot say that the district
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court incorrectly applied the law in concluding that the
Board had not shown a likelihood of success.
The district court did not analyze the Board's
petition under the remaining three requirements for
injunctive relief, and we see no need to engage in that
exercise here. Without a clear likelihood of success,
injunctive relief would not have been just and proper. See
___
Weaver v. Henderson, 984 F.2d 11,12 (1st Cir. 1993) ("The
______ _________
sine qua non of [the injunctive relief analysis] is whether
____________
the plaintiffs are likely to succeed on the merits."); see
___
also Pan American Grain Co., 805 F.2d at 28 (stating that for
____ ______________________
an injunction to issue, the record must support a finding of
a likelihood of success on the merits). Thus, the district
court's denial of injunctive relief was not an abuse of
discretion.
AFFIRMED.
AFFIRMED.
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