Pye on Behalf of N.L.R.B. v. Sullivan Bros. Printers, Inc.

• Decision Date: 12 September 1994
• Docket Number: No. 94-1569,94-1569
• Citation: 38 F.3d 58
• Parties: 147 L.R.R.M. (BNA) 2584, 63 USLW 2292, 129 Lab.Cas. P 11,210 In re Rosemary PYE, on Behalf of NATIONAL LABOR RELATIONS BOARD, Plaintiff, Appellant, v. SULLIVAN BROTHERS PRINTERS, INC., Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 58

38 F.3d 58

147 L.R.R.M. (BNA) 2584, 63 USLW 2292,

129 Lab.Cas. P 11,210

In re Rosemary PYE, on Behalf of NATIONAL LABOR RELATIONS

BOARD, Plaintiff, Appellant, v. SULLIVAN BROTHERS PRINTERS, INC., Defendant, Appellee.

No. 94-1569.

United States Court of Appeals, First Circuit.

Heard Sept. 12, 1994.

Decided Oct. 26, 1994.

John A. Mantz, Attorney for N.L.R.B., with whom Ellen A. Farrell, Asst. Gen. Counsel, Frederick L. Feinstein, Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, and Corinna L. Metcalf, Deputy Asst. Gen. Counsel, Washington, DC, were on brief, for appellant.

Robert P. Corcoran with whom Gleeson & Corcoran, Boston, MA, was on brief, for appellee.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

The National Labor Relations 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. Background

A. The Demise of Locals 109C and 139B

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 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.

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 transferring ¹ 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 condition that they be used for the benefit of the 109C or 139B members.

B. Local 600M

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 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 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 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

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 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. Secs. 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...