Sullivan Bros. Printers, Inc. v. N.L.R.B.
| Decision Date | 07 June 1996 |
| Docket Number | AFL-CI,P,Nos. 95-1733,96-1098,CL,s. 95-1733 |
| Parties | 153 L.R.R.M. (BNA) 2752, 132 Lab.Cas. P 11,695 SULLIVAN BROTHERS PRINTERS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. LOCAL 600M, GRAPHIC COMMUNICATION INTERNATIONAL UNION,etitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Sullivan Brothers Printers, Inc., Intervenor. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Robert P. Corcoran, Boston, MA, with whom Gleeson & Corcoran was on brief, for petitioner Sullivan Brothers Printers, Inc.
Anton G. Hajjar, Washington DC, Adrienne L. Saldana, New York City, 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.
Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.
Petitioner-Appellant Sullivan 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.
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) (). 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 ("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 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 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 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.
by Local 600M,' " id. at 62, and a panel of this court affirmed in October, 1994. 2 Id
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, 106 S.Ct. 1007, 1010, 89 L.Ed.2d 151 (1986), 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 minimum due process' and (2) whether there was 'substantial continuity' between the pre- and post-merger union." Sullivan I, 38 F.3d at 64 () (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 " " Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22 (1st Cir.) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951)), cert. denied, 464 U.S. 892, 104 S.Ct. 237, 78 L.Ed.2d 228 (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.
Sullivan contends that the Board erred in overruling the ALJ's determination and finding that the voting procedures employed 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, all cast in favor of the merger. No objection was raised by the members as to the merger vote process.
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, 106 S.Ct. at 1014. 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, 106 S.Ct. at 1011. 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
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...
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