
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1569                                 IN RE: ROSEMARY PYE,                     ON BEHALF OF NATIONAL LABOR RELATIONS BOARD,                                Plaintiff, Appellant,                                          v.                          SULLIVAN BROTHERS PRINTERS, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            John A. Mantz,  Attorney for National Labor Relations Board,  with            _____________        whom  Ellen  A.  Farrell,  Assistant  General  Counsel,  Frederick  L.              __________________                                 _____________        Feinstein,  General   Counsel,  Robert  E.  Allen,  Associate  General        _________                       _________________        Counsel,  and Corinna  L. Metcalf,  Deputy Assistant  General Counsel,                      ___________________        were on brief for appellant.            Robert P. Corcoran  with whom Gleeson &  Corcoran was on brief for            __________________            ___________________        appellee.                                 ____________________                                   October 26, 1994                                 ____________________                      STAHL, Circuit Judge.  The National Labor Relations                      STAHL, Circuit Judge.                             _____________            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.                                           __                                      Background                                      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                                         -2-                                          2            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.                                         -3-                                          3                      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                                            ____________________            1.  Under the GCIU constitution and by-laws, two locals merge            when both surrender their respective charters and negotiate a                 ____            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                         ___            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."                                         -4-                                          4            condition that  they be used  for the benefit of  the 109C or            139B members.                                         -5-                                          5            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                                            ____________________            3.  Local  600M is  not  currently collecting  dues from  the            former 109C  and 139B  members because of  Sullivan Brothers'            refusal to recognize it.                                         -6-                                          6                      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                                         -7-                                          7                      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                                         -8-                                          8                      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                                         -9-                                          9            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                                            ____________________            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                                         -10-                                          10            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                                            ____________________            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.                    ___            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.                                                                  -11-                                          11            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.                                          ___                  The Section 10(j) Preliminary Injunction Standard                  The Section 10(j) Preliminary Injunction Standard                  _________________________________________________                      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.                                                            ___ _____            Centro  Medico del Turabo, 900 F.2d 445, 450 (1st Cir. 1990);            _________________________            Asseo  v. Pan American  Grain Co., 805 F.2d 23, 25  (1st Cir.            _____     _______________________            1986); Maram v.  Universidad Interamericana  de Puerto  Rico,                   _____     ____________________________________________            Inc., 722 F.2d  953, 958 (1st Cir. 1983).  The district court            ____            is not empowered to decide  whether an unfair labor  practice               ___            actually  occurred.   Centro Medico  del Turabo, 900  F.2d at                                  _________________________            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                                                                 ___            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                                         -12-                                          12            relief."   Centro Medico del Turabo, 900 F.2d at 454 (quoting                       ________________________            Universidad Interamericana de Puerto  Rico, 722 F.2d at 958).            __________________________________________            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,            ___  ____  _________________________    ________            5 (1st Cir. 1991); Centro Medico del Turabo, 900 F.2d at 453.                               ________________________            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            ___            determining  the  likelihood of  success  on  the merits,  it            applies an improper legal standard or erroneously applies the                                         -13-                                          13            law to particular facts.  Feinstein  v. Space Ventures, Inc.,                                      _________     ____________________            989 F.2d 49, 51 (1st Cir. 1993).                                         III.                                         III.                                         ____                                      Discussion                                      Discussion                                      __________                      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            _______________________________                      1)  Reasonable Cause                          ________________                      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                                                                 ________            that  the district court did  in fact find reasonable cause,7                                            ____________________            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                                       ___ _________________________            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                                         ___            likelihood   of   success")  (emphasis   added);  Universidad                                                              ___________            Interamericana de  Puerto Rico, 722 F.2d at 959 (stating that            ______________________________            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).            _____________                                         -14-                                          14            and turn to the district court's determination that the Board            failed to demonstrate a likelihood of success.                         2)  No Likelihood of Success                          ________________________                      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                                            ____________________                      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               _____________            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.                                         -15-                                          15            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                                                            _____________            Nat'l Bank v.NLRB, 892  F.2d 792, 799 (9th Cir.  1989), cert.            __________   ____                                       _____            denied,  496  U.S. 925  (1990), we  think the  district court            ______            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                                         -16-                                          16            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                       ____________________________________________            N.L.R.B.  893, 899 (1992) (quoting News/Sun-Sentinel Company,                                               _________________________            290 N.L.R.B.  1171 (1988), enforced  890 F.2d 430  (D.C. Cir.                                       ________            1989),  cert.  denied,  497   U.S.  1003  (1990));  see  also                    _____  ______                               ___  ____            Insulfab, 789 F.2d at 965.            ________                      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            __________________            determinative,  nor is  a  particular  checklist  prescribed.                                            ____________________            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.                            _____            9.  Union  affiliations and  mergers do  not necessarily,  or            even usually,  raise a question  of representation.   NLRB v.                                                                  ____            Insulfab Plastics, Inc., 789 F.2d  961, 964 (1st Cir.  1986).            _______________________            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                                 ___            "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.                     ___                                         -17-                                          17            Rather, "[t]he Board considers  the totality of a situation."            Id.   Among  the factors  that  the Board  has  traditionally            ___            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).                        _____ ______                      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                                         -18-                                          18            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                                                                      ___            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            _______  ___________________                                         -19-                                          19            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                                                    ________________            fail to see how that case controls here.  In Service America,                                                         _______________            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                                                                  _______            America,  307 N.L.R.B. at 60.  The circumstances in that case            _______            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                 __            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            _______            business agents negotiating contracts and handling grievances                                         -20-                                          20            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                                                    ____            leadership  for their  former local;  whether they  represent            substantial continuity  is doubtful.   Our attention  has not            ___________            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                                         -21-                                          21            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                                                                  _______            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,            __________            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.                                         -22-                                          22            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                                         -23-                                          23            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.                                         -24-                                          24
