Sullivan Brothers Printers, Inc. v. National Labor Relations Board

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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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

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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

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