

                  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 &amp;  Corcoran was  on                                                                   
brief for petitioner Sullivan Brothers Printers, Inc.
     Anton G. Hajjar, Adrienne L. Salda a and O'Donnell, Schwartz                                                                           
&amp; 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
                                           

                               -2-

          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

                               -3-

("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) &amp; (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

                               -4-

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) &amp; (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).

                               -5-

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

                               -6-

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

                               -7-

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.

                               -8-

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

                               -9-

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: 

                               -10-

          [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

                               -11-

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

                               -12-

between  the putative  bargaining agent,  its affiliate,  and the

employer,'" Insulfab, 789 F.2d at 966 (quoting J. Ray McDermott &amp;                                                                           

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

                               -13-

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

                               -14-

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).                         

                               -15-

          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

                               -16-

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.

                               -17-

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

                               -18-

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

                               -19-

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

                               -20-

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

                               -21-

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

                               -22-

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

                               -23-

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

                               -24-

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

                               -25-

            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

                               -26-

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

                               -27-

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

                               -28-

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

                               -29-

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.

                               -30-

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. &amp; 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                                                                           

                               -32-

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 &amp; 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 &amp; 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 &amp; 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                                                                           

&amp;  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 &amp;                                                   

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. &amp; 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

                               -37-

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                                                           

                               -38-
