                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-9-1998

CPS Chem Co Inc v. NLRB
Precedential or Non-Precedential:

Docket 97-3595,97-3659




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Recommended Citation
"CPS Chem Co Inc v. NLRB" (1998). 1998 Decisions. Paper 259.
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Filed November 9, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NOS. 97-3595 and 97-3659

CPS CHEMICAL COMPANY, INC.
Petitioner in 97-3595

v.

NATIONAL LABOR RELATIONS BOARD,
Respondent

OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION, AFL-CIO
Intervenor-Respondent

NATIONAL LABOR RELATIONS BOARD
Petitioner in No. 97-3659
OIL, CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION, AFL-CIO
Intervenor-Petitioner

v.

CPS CHEMICAL COMPANY, INC.
Respondent

On Petition for Review of Decision and Order of
National Labor Relations Board and Cross-Application
by NLRB for Enforcement of Its Order
Board No. 22-CA-20769

Argued: September 25, 1998

Before: BECKER, Chief Judge, WEIS and GARTH
Circuit Judges.

(Filed November 9, 1998)
WILLIAM K. HARVEY, ESQUIRE
 (ARGUED)
Jackson, Shields, Yeiser & Cantrell
262 German Oak Drive
Cordova, TN 38018

MARK EDWARD ROGART, ESQUIRE
General Counsel
CPS Chemical Company, Inc.
900 Route 9 North
Woodbridge, NJ 070-1015

Attorneys for CPS Chemical Co.

STEVEN B. GOLDSTEIN, ESQUIRE
 (ARGUED)
National Labor Relations Board
Contempt Litigation Branch
1099 14th Street, NW
Suite 10700
Washington, DC 20570

MARGARET A. GAINES, ESQUIRE
FREDERICK L. FEINSTEIN,
 ESQUIRE
LINDA SHER, ESQUIRE
AILEEN A. ARMSTRONG, ESQUIRE
National Labor Relations Board
1099 14th Street, NW
Washington, DC 20570-0001

Attorneys for National Labor
Relations Board

MARSHA S. BERZON, ESQUIRE
 (ARGUED)
Altshuler, Berzon, Nussbaum,
 Berzon & Rubin
177 Post Street, Suite 300
San Francisco, CA 94108

                        2
       JONATHAN P. HIATT, ESQUIRE
       JAMES B. COPPESS, ESQUIRE
       AFL-CIO
       815 16th Street, NW
       Washington, DC 20006

       KATHLEEN A. HOSTETLER,
        ESQUIRE
       Oil, Chemical & Atomic Workers
        International Union
       AFL-CIO
       255 Union Blvd.
       Lakewood, CO 80288-8200

       Attorneys for Oil, Chemical and
       Atomic Workers International Union,
       AFL-CIO

OPINION OF THE COURT

BECKER, Chief Judge.

CPS Chemical Company, Inc. ("CPS") petitions for review
of an order of the National Labor Relations Board ("NLRB"
or "Board") finding that CPS violated section 8(a)(1) and (5)
of the National Labor Relations Act ("NLRA" or "Act") by
refusing to recognize and bargain with Local 8-397 of the
Oil, Chemical and Atomic Workers International Union
("OCAW" or "International"). The Board has cross-petitioned
for enforcement of its bargaining order. CPS does not
contest that it failed to recognize and bargain with Local 8-
397. Rather, it argues that it was not obligated to do so
because the affiliation of the independent union at CPS's
Old Bridge, New Jersey, plant with Local 8-397 "resulted in
such discontinuity that OCAW could not legitimately claim
to represent the employees without a NLRB election to
resolve the question concerning representation." Pet'r Br. at
1.

CPS relies heavily on several cases decided by this Court
in the 1970s, in which we refused to enforce Board orders
similar to the one at issue here. See Sun Oil Co. v. NLRB,
576 F.2d 553 (3d Cir. 1978); NLRB v. Bernard Gloekler N.

                                3
E. Co., 540 F.2d 197 (3d Cir. 1976); American Bridge Div.,
U.S. Steel Corp. v. NLRB, 457 F.2d 660 (3d Cir. 1972). Our
reasoning in those cases, however, has been undermined in
significant respects by an intervening decision of the
Supreme Court. See NLRB v. Financial Inst. Employees,
Local 1182, 475 U.S. 192 (1986) [Sea-First]. Sea-First
created a new standard by which we must evaluate cases
such as the present one and prevents us from relying on at
least some of the factors we considered persuasive in our
earlier cases. More specifically, Sea-First requires the Board
(and us) to focus exclusively on employees and their
relationship to their union when evaluating whether a
"question of representation" exists. Any concern with the
effect of internal union changes on the union's relationship
with the employer, upon which we focused in our earlier
cases, are outside the purview of representation issues
under the Act. Further, to the extent that a portion of our
analysis in the earlier cases is still valid, wefind this case
easily distinguishable on its facts.

In this case, the Board applied its general principles
governing union recognition, as well as the specific
principles for union affiliations that require the employer to
demonstrate that an affiliation has created a substantial
change in a union and in the relationship between the
employees and their union. The Board found there to be no
substantial change. We find that the Board's factual
findings and its application of these affiliation principles
have substantial support in the record, and that its
conclusions are based on a reasonable interpretation of the
Act and the case law in this area. Consequently, we will
deny CPS's petition for review and will enforce the Board's
order.1
_________________________________________________________________

1. CPS also sought review of the Board's refusal to enforce its subpoena
for certain union records. CPS did not formally request that the Board
enforce the subpoena, and virtually all of the records it requested were
provided before or at the hearing. Further, it has presented no evidence
of prejudice in the failure of the Board to enforce its subpoena. See
Kenrich Petrochemicals, Inc. v. NLRB, 893 F.2d 1468, 1484-85 (3d Cir.)
("Absent a showing of abuse of discretion or actual prejudice," a
challenge to a failure to produce documents prior to an NLRB hearing
will be rejected), vacated in part on other grounds, 907 F.2d 400 (3d Cir.
1990) (en banc).

                               4
I.

CPS operates a chemical plant in Old Bridge, New Jersey,
at which it employs approximately 32 production employees
(operators, mechanics, and laborers). From 1984 through
1995, these employees were represented by an independent
union, which was not affiliated with any local, regional, or
national organization. The independent union handled its
own negotiations, electing a committee of workers to
bargain with the employer, and processed its grievances
without outside assistance. On the rare occasions when
grievances were arbitrated, the union hired an attorney to
handle those cases. In 1995, leaders of the independent
union began exploring the possibility of affiliating with a
larger union. At this time, the employer and union were
parties to a three-year collective bargaining agreement,
effective through January 3, 1996. In April 1995, about half
of the CPS employees met with representatives of Local 8-
397 of OCAW, a national union with approximately 85,000
members. Following discussions with OCAW, a special
meeting was called by the independent union's leadership
for CPS employees to vote on whether or not to affiliate with
Local 8-397. Notice of the meeting was sent to all union
members on May 1, 1995, and the meeting was held on
May 17, 1995.

Fifteen employees attended the May 17 meeting and
voted by secret ballot. Seven others mailed in absentee
ballots. All twenty-two members of the independent union
who voted cast their ballot in favor of affiliation. As a result
of the vote, a resolution was adopted changing the name of
the independent union and handing over all assets and
property of the independent union to Local 8-397. The
resolution also indicated that Local 8-397 would become a
party to the collective bargaining agreement with CPS, and
directed the leadership of the union to take all necessary
steps to effect the change in affiliation.

CPS employees make up only a small portion of Local 8-
397's membership; employees of approximately 18 different
employers are affiliated with the Local, which has about
550 members. All Local 8-397 members employed by the
same company make up a "unit group." Each unit group
handles its own negotiations and grievances, but a

                               5
representative of OCAW usually assists in negotiations and
arbitrations. The unit groups decide grievance settlements
on their own and must approve any collective bargaining
agreement to which they are a party. The International also
must approve any contracts negotiated by the unit groups,
but the International cannot force a unit group to accept a
contract that the latter does not itself approve. Local 8-397
dues are equal to two hours pay per month, or about $30
for CPS employees, as compared to the independent union's
dues of $12 per month. Unit groups elect a unit vice-
president, who leads the unit and sits on Local 8-397's
executive board, and grievance/negotiation committeemen.2

Following the affiliation vote, Local 8-397 wrote to CPS
informing it of the affiliation. After requesting certain
information and noting that it would withhold judgment on
the affiliation, CPS notified Local 8-397 on June 7, 1995,
that it would not recognize the affiliation and that it would
refuse to recognize and bargain with Local 8-397 as the
representative of its production employees. Local 8-397
therefore filed an unfair labor practice charge with the
NLRB, which issued a complaint against CPS, alleging
violations of section 8(a)(1) and (5) of the National Labor
Relations Act, 29 U.S.C. S 158(a)(1), (5) (1994). Section
8(a)(5) provides that it is an unfair labor practice for an
employer to refuse to bargain with the representative of its
employees. Section 8(a)(1) makes it improper to "interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed" in section 7 of the Act, including the
rights to organize and bargain collectively. Following a
hearing, an Administrative Law Judge found that CPS had
violated both section 8(a)(1) and (5). The Board affirmed the
ALJ's findings and adopted his recommended order. See
CPS Chemical Co., 324 N.L.R.B. No. 154, 1997 WL 703038
(Nov. 7, 1997). CPS petitioned this Court for review of the
Board's order and the NLRB cross-petitioned for
_________________________________________________________________

2. The CPS unit group has not held elections because CPS has refused
to recognize and bargain with the new entity. It expects to do so once
recognition is forthcoming. The president of the former independent
union has maintained his leadership position pending elections,
effectively acting as the new unit's vice president.

                               6
enforcement of the order. We have jurisdiction under
section 10(e) and (f) of the Act, 29 U.S.C. S 160(e), (f).

While CPS challenges many of the Board's factual
findings, "we must . . . accept the Board's factual
determinations and reasonable inferences derived from
factual determinations if they are supported by substantial
evidence." Stardyne, Inc. v. NLRB, 41 F.3d 141, 151 (3d Cir.
1994). 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."
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)
(internal quotations omitted). As to the Board's legal
analysis of the affiliation issue, our review is plenary, but
"[b]ecause of the Board's `special competence' in the field of
labor relations, its interpretation of the Act is accorded
substantial deference." Pattern Makers' League v. NLRB,
473 U.S. 95, 100 (1985).

II.

A.

This case is governed by certain basic principles
established by the Act and the cases construing it. It is well
settled that a duly recognized union enjoys a rebuttable
presumption that it has the support of a majority of
bargaining unit employees after its first year of
representation. See Furniture Rentors of Am., Inc. v. NLRB,
36 F.3d 1240, 1244 n.1 (3d Cir. 1994). An employer who
doubts the validity of this presumption--i.e., an employer
who believes that a "question of representation" exists--
may take one of three steps to clarify the union's continued
majority support. See Allentown Mack Sales & Serv., Inc. v.
NLRB, 118 S. Ct. 818, 820 (1998). It may (1) petition for a
Board-supervised election, see 29 U.S.C.S 159(c)(1)(B); 29
C.F.R. S 101.17 (1998); (2) conduct an internal poll of its
employees to gauge their support for the union, see Hajoca
Corp. v. NLRB, 872 F.2d 1169, 1173 (3d Cir. 1989); or (3)
withdraw recognition and refuse to bargain with the union,
see Furniture Rentors, 36 F.3d at 1244 n.1. An employer
who chooses either of the latter two paths must show that

                                7
it had a "good faith reasonable doubt" as to the union's
continued majority support at the time it polled its
employees or withdrew support; otherwise, it commits an
unfair labor practice. See Allentown Mack, 118 S. Ct. at
820.

In this case, the employer followed the third course,
unilaterally withdrawing recognition from the union.
Therefore, it must demonstrate a "good faith reasonable
doubt" as to the union's majority status to avoid the impact
of our labor laws.3 Here, CPS attempts to do so by arguing
that there was sufficient discontinuity between the pre-
affiliation independent union and the post-affiliation entity
to deny the latter the benefit of the majority support
presumption. The Board has developed specific rules for
evaluating claims that an affiliation excuses an employer's
withdrawal of recognition from its union. If the principles
on which the Board relies are sufficiently grounded in the
Act and are not applied arbitrarily or capriciously, we must
affirm the resulting decision reached by the Board. See
Dorsey Trailers, Inc. v. NLRB, 134 F.3d 125, 129 (3d Cir.
1998) ("[T]his Court will enforce a board order that rests on
a construction of the Act that is not an unreasonable or
unprincipled construction of the statute." (internal
quotations and brackets omitted)).

The relevant measuring rod in an affiliation case is
contained in NLRA section 9(c), which provides that the
Board can certify or decertify a union only after holding a
_________________________________________________________________

3. CPS asserts that the Board improperly placed on it the burden of
proof in this case. This argument is without merit. There is no doubt
that the Board has the burden of proving that an employer refused to
bargain with its union. In this case, it is conceded that CPS has refused
to bargain with Local 8-397. The disputed issue is whether this refusal
was justified by a good faith reasonable doubt as to the union's majority
status. It is appropriately the employer's burden to prove this defense to
the established refusal to bargain. See Hajoca , 872 F.2d at 1174-75; see
also Sioux City Foundry Co. v. NLRB, 154 F.3d 832, 840 (8th Cir. 1998)
("The employer has the burden of proving that the affiliation lacks
substantial continuity."); cf. Allentown Mack, 118 S. Ct. at 820 (noting
that withdrawal of recognition is an unfair labor practice "unless the
employer can show that it had a `good faith reasonable doubt' about the
union's majority support").

                               8
hearing and determining that "a question of representation
exists," and then directing that an election be held. 29
U.S.C. S 159(c). Under section 9(c), any Board rule
regarding union affiliations and withdrawal of recognition
must be grounded in the basic "question of representation"
formula:

        Under the Act, the certified union must be recognized
       as the exclusive bargaining representative of all
       employees in the bargaining unit, and the Board
       cannot discontinue that recognition without
       determining that the affiliation raises a question of
       representation and, if so, conducting an election to
       decide whether the certified union still is the choice of
       a majority of the unit.

Sea-First, 475 U.S. at 202; see also id. at 203 ("[W]here
affiliation does not raise a question of representation, the
statute gives the Board no authority to act.").

Sea-First is the Supreme Court's leading union-affiliation
case. A unanimous Court held that a question of
representation arises only if (1) "a new affiliation . . .
substantially change[s] a certified union's relationship with
the employees it represents" and (2) this change makes it
"unclear whether a majority of employees continue to
support the reorganized union." Id. at 202. Further, the
Court noted that the evaluation of these issues must be
undertaken with the policy of the NLRA in mind: industrial
stability, which "would unnecessarily be disrupted if every
union organizational adjustment were to result in
displacement of the employer-bargaining representative
relationship." Id. at 202-03 (internal quotations omitted).
While CPS correctly notes that the Court in Sea-First did
not pass on the Board's underlying affiliation
jurisprudence, see id. at 200 n.7, the Court's holding that
the Board's affiliation rule at issue there exceeded its
authority was based on its reading of section 9(c) as
focusing exclusively on whether the union continued to
enjoy majority support from the bargaining unit. As long as
the Board's affiliation jurisprudence remains grounded in
this reading of section 9(c), it will be a reasonable
interpretation of the Act.

                                9
B.

Both before and after Sea-First, the Board's standard for
evaluating affiliation cases has been straightforward: an
employer can rebut the presumption that a post-affiliation
entity continues to enjoy majority support by proving that
either (1) the affiliation vote did not meet minimal due
process standards or (2) the affiliation substantially
changed the nature of the pre-affiliation union. See, e.g.,
Western Commercial Transp., Inc., 288 N.L.R.B. 214, 217
(1988) ("The Board's traditional practice in such cases has
been to examine whether an affiliation election was
conducted with appropriate safeguards and whether there
was a substantial change in the identity of the
representative entity."). CPS does not argue that the vote
lacked due process, so we need not address that issue here.

The Board has traditionally used a totality-of-
circumstances analysis to determine whether there has
been a substantial change in a union following affiliation.
See, e.g., Sullivan Bros. Printers, Inc. v. NLRB, 99 F.3d
1217, 1223 (1st Cir. 1996). While the specific factors may
differ in each case, we will typically defer to the Board's
choice and evaluation of these factors as long as the focus
remains on whether "a question of representation" exists
and the Board's application of the factors is not arbitrary
and capricious.

III.

CPS relies primarily on the above cited cases from the
1970s, see supra, in which we denied the Board's petition
for enforcement. We decline to similarly deny the Board's
petition here, however, as we hold that these cases are no
longer entirely valid precedents in light of the Supreme
Court's intervening decision in Sea-First. An existing panel
decision may be undermined by a succeeding decision of
the Supreme Court even if the Court does not directly
address the issue raised in the prior case. See Sheet Metal
Workers Int'l Ass'n, Local Union No. 19 v. United States
Dep't of Veterans Affairs, 135 F.3d 891, 902 (3d Cir. 1998).
Indeed, a number of courts have opined that our trilogy of
cases stand on weak ground following Sea-First. See, e.g.,

                               10
May Dep't Stores Co. v. NLRB, 897 F.2d 221, 229 n.9 (7th
Cir. 1990) ("[T]he trilogy of Third Circuit cases . . . are of
questionable precedential value in light of Sea-First.");
Seattle-First Nat'l Bank v. NLRB, 892 F.2d 792, 798 (9th
Cir. 1990) ("[T]he Court's statements cast doubt on the
continuing validity of the Third Circuit's jurisprudence in
this area . . . ."). Moreover, to the extent these cases remain
good law, we find them distinguishable on their facts from
the present case.

The first of these cases was American Bridge Division,
U.S. Steel Corp. v. NLRB, 457 F.2d 660 (3d Cir. 1972),
which is wholly distinguishable on its facts.4 It was
_________________________________________________________________

4. In American Bridge, we found that an affiliation created "a far
different
organization because the people who conduct a substantial part of the
unit's dealings with management are no longer the association's officers,
and the power of the unit's members to control those agents has
radically changed." Id. at 663. We focused on four factors: (1) the local
union could no longer call a strike without the approval of an outsider
(i.e., the international's president); (2) settlement of all grievances
and
other disputes would be made by the international union; (3) dues
payments would go to the international union; and (4) the international
had the power to determine when a strike would occur and when a
contract would be signed. See id. at 664. In other words, there was "a
clear departure from the former status of an independent union, where
local officers negotiated the contract, settled the terms, handled the
grievances and decided when and when not to strike"--a departure
which "may well raise serious discontent among the employees." Id. We
also expressed concern regarding the closeness of the affiliation vote and
the lack of a secret ballot. See id. at 666.

American Bridge is easily distinguishable from the present case. Here,
the CPS employees retain the right to strike without approval from the
Local or OCAW. While OCAW has the right to withhold strike funds,
there is no indication that the pre-affiliation union had any strike funds
available, so "there is no showing that the CPS employees' freedom to
strike has been impaired in any material way as a result of the
affiliation." CPS Chemical Co., 324 N.L.R.B. No. 154, 1997 WL 703038,
at *7 (Nov. 7, 1997). Local CPS employees will serve on the bargaining
committee for negotiations, although an OCAW representative may assist
them. No contract can be imposed on the employees without their
consent. Grievances will be handled by the local officers, while the CPS
unit will be assisted at arbitrations by an OCAW representative as they
had been by an outside attorney before the affiliation. Finally, while the

                               11
primarily in the latter two cases that we relied on factors no
longer viable after Sea-First. These affiliation cases, like
American Bridge, are distinguishable from the present one,
but more importantly, they have been partially (and
significantly) undermined by Sea-First. In those cases, we
focused, at least in part, on the effect of the affiliation on
the employer. The Supreme Court, however, made clear in
Sea-First that the Board's focus (and ours) must be
grounded in the language of section 9(c) of the Act, and
therefore must be exclusively on how the affiliation affects
the union and its members.

In NLRB v. Bernard Gloekler North East Co., 540 F.2d 197
(3d Cir. 1976), the international union with which the
independent entity eventually affiliated challenged the
status of the independent union (alleging that it was
dominated by the employer and was not a legitimate union).
When efforts to have an NLRB complaint issued or to
hold a certification election failed, the international's
representative entered affiliation discussions with the union
it had previously attacked. See id. at 198, 201, 203 n.9. As
in American Bridge, in Bernard Gloekler the local with
which the previously independent union affiliated controlled
access to arbitrations and the international had sole
discretion whether or not to call a strike. See id. at 199-
200.

In deciding Bernard Gloekler, we placed considerable
emphasis on the effect of the affiliation on the employer,
focusing on the fact that the affiliation created a union with
greater resources for bargaining and for economic actions
such as strikes: "[T]he Company would be dealing with a
union with different economic options and with a different
locus of power." Id. at 202. We distinguished an earlier
affiliation case by noting that, in the prior case, "[t]he
company had no objection to the change in the local's
_________________________________________________________________

present case does share one factor with American Bridge (dues will
eventually be higher following the affiliation and the dues will go
directly
to the Local and the OCAW), "the greater financial commitment asked of
OCAW members undoubtedly reflects to some extent the fact that a large
international union can provide more extensive services than a small
independent like the Association." Id. at *6.

                               12
affiliation from one international to another. . .. For all
intents and purposes, the company's position indicated
there was no question of representation because the
contractual party was the same." Id. at 203.

In Sun Oil Co. v. NLRB, 576 F.2d 553 (3d Cir. 1978), we
again emphasized factors that are either not present in this
case or are not a proper part of the affiliation analysis after
Sea-First. These included "control by the International over
the procedure for calling a strike" and concern over the fact
that "the Company is now required to bargain with an
International Union . . . which can also flex considerably
more bargaining muscle than the 30-person local
Independent." Id. at 557. We then held that "the increase in
bargaining power," along with the transfer of much control
to the international, made the case indistinguishable from
American Bridge and Bernard Gloekler. See id. Finally, we
outlined our view of the proper affiliation analysis,
including an examination of whether the affiliation changed
the employees' "obligations to management." Id. at 558.
However, following Sea-First, factors that focus on the effect
of the affiliation on the employer are no longer valid. See,
e.g., May Dep't Stores, 897 F.2d at 229 n.9 ("[T]he
increased size, financial support and bargaining power that
such mergers create are the very factors recognized by the
Supreme Court in Sea-First as the ordinary, valid reasons
for mergers.").

In Sea-First, the Court made clear that an affiliation is no
different from other internal changes made by a union, and
that it only justifies a change in the bargaining relationship
if it raises a question of representation. See 475 U.S. at
205-07. In rejecting the Board's pre-Sea-First rule requiring
that a union permit nonunion employees to vote on an
affiliation, the Court noted:

       The Act assumes that stable bargaining relationships
       are best maintained by allowing an affiliated union to
       continue representing a bargaining unit unless the
       Board finds that the affiliation raises a question of
       representation. . . . The Board's rule effectively gives
       the employer the power to veto an independent union's
       decision to affiliate, thereby allowing the employer to

                               13
       directly interfere with union decisionmaking Congress
       intended to insulate from outside interference.

Id. at 209; cf. Auciello Iron Works, Inc. v. NLRB, 517 U.S.
781, 790 (1996) (expressing doubt that employees'
representational interests could be protected by their
employer).

The emphasis in Bernard Gloekler and Sun Oil on the
effect of the affiliation on the employer clearly is not an
appropriate focus following Sea-First, and we decline to
consider this factor (and the Board properly declined as
well) in this or future cases. We also conclude that the
remaining factors from these earlier cases, such as the lack
of local control over grievances, bargaining, and strikes, are
readily distinguishable from those in the present case, in
which the CPS employees retain authority over day-to-day
matters such as grievances and negotiations. Finally, we
note that our analyses in Bernard Gloekler and Sun Oil
ignored the Board's longstanding presumption, implicitly
endorsed by the Court in Sea-First, that an affiliation itself
has no probative value regarding employees' continued
support for the union. See Sea-First, 475 U.S. at 203 n.10.
In our earlier cases, the smaller union's act of affiliating
with a larger organization was itself seen as probative of a
lack of continuity, justifying the employer's refusal to
recognize the new entity. After Sea-First, this presumption
of discontinuity from the fact of affiliation is no longer
warranted.5
_________________________________________________________________

5. Judge Garth notes that Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984), specifying a standard of
deference, was decided by the Supreme Court after this Court's trilogy of
cases (Sun Oil Co. v. NLRB, 576 F.2d 553 (3d Cir. 1978); NLRB v.
Bernard Gloekler N. E. Co., 540 F.2d 197 (3d Cir. 1976); American Bridge
Div., U.S. Steel Corp. v. NLRB, 457 F.2d 660 (3d Cir. 1972)). Chevron
dictates that a federal court "must defer to a reasonable construction of
a statute by the administrative agency charged with administering the
statute if Congress has not directly spoken to the precise question at
issue." Reich v. D.M. Sabia Co., 90 F.3d 854, 859 (3d Cir. 1996). D.M.
Sabia, among other things, held that a panel opinion, decided before
Chevron, did not accord proper Chevron deference to an administrative
agency (OSHA), and therefore did not bind a subsequent panel. See id.
at 859-60. Judge Garth believes that the deferential standard of review
we apply here is consistent with principles in Chevron because Congress
has not spoken to the pre- and post-affiliation circumstances that would
raise a question of representation sufficient to relieve an employer of
its
statutory bargaining obligations.

                               14
IV.

Having addressed CPS's reliance on our prior cases for its
challenge to the Board's order, we now address its
objections to the Board's specific application of its affiliation
principles in this case. The factors which the Board found
dispositive here included the following: (1) the independent
union's president continues to serve as the unit's leader
following affiliation; (2) employees are eligible to join the
new union without paying an initiation fee and without an
immediate increase in dues (which will rise to OCAW's
standard dues level over five years); (3) contracts will be
negotiated by a committee made up of CPS employees; (4)
the employees cannot have contract terms imposed on
them against their will; and (5) the employees' freedom to
strike has not been impaired. See CPS Chemical Co., 324
N.L.R.B. No. 154, 1997 WL 703038, at *4-*7 (Nov. 7, 1997).
Moreover, although the independent union's assets were
transferred to Local 8-397, "there is no showing that the
CPS employees have fewer resources that can be committed
to their representational needs" than before the affiliation.
Id. at *8.

CPS challenges some of the factual findings underlying
the Board's decision and also argues that there is a lack of
continuity on the basis of additional factors not listed
above. Although reasonable minds could differ on certain
conclusions,6 there is clearly substantial support in the
record for the Board's findings of fact. In some cases, the
factual disputes revolve around the differences between the
stated policy of OCAW and its actual practice, with CPS
emphasizing the former and the Board focusing on the
latter. However, the Board has consistently looked at actual
practice and not at mere policy statements when
undertaking affiliation analyses, see Sullivan Bros., 99 F.3d
at 1226, and we find this choice to be a reasonable one. We
have considered the additional factors cited by CPS, but
find them either insufficient to offset the substantial
evidence supporting the Board's finding of continuity or
simply immaterial to a determination of whether a question
_________________________________________________________________

6. For example, it is unclear whether OCAW has unequivocally promised
to phase in the new dues level.

                               15
of representation exists, and not worthy of discussion. We
thus find CPS's attack on the Board's affiliation analysis to
be without merit and have no difficulty enforcing its
bargaining order on the basis of its rational analysis of the
relevant factors.

V.

CPS also claims that the Board's decision in this case is
inconsistent with its own governing precedents, including
the two leading affiliation cases after Sea-First. In both of
those cases, a majority of the Board found that substantial
changes had occurred following affiliation, excusing the
employer's refusal to recognize the post-affiliation union.
See Western Commercial Transp., Inc., 288 N.L.R.B. 214
(1988); Garlock Equip. Co., 288 N.L.R.B. 247 (1988). Given
the necessarily fact-bound nature of the Board's totality-of-
the-circumstances analysis, we find nothing troubling in
the different results reached by the Board in these earlier
cases and in the present one.

In both of these earlier cases, the key factors which the
Board relied upon to find a lack of continuity were that (1)
daily representation matters and regular contract
administration were handled by full-time union
staffpersons following affiliation whereas they were formerly
handled by an elected employee-officer; (2) strikes could
only be undertaken with the approval of international
officers; and (3) in at least one of the cases, there was no
indication that employees would continue to select any of
their leaders. See Western Commercial, 288 N.L.R.B. at 216;
Garlock, 288 N.L.R.B. at 248. As noted above, wefind
substantial support in the record for the Board'sfinding
that these factors are not present here. Daily representation
matters, grievances, and contract negotiations will be
handled by CPS employees, as they were prior to the
affiliation. The only difference is that the affiliation has
provided the employees with the option of seeking
assistance from OCAW staffpersons when grievances are
taken to arbitration or when contract negotiations are being
conducted. The decision to strike can be made by CPS
employees alone, without the approval of any Local 8-397
or OCAW officers. Finally, CPS employees will continue to

                               16
elect their ultimate leader, the unit vice-president, as well
as committee members who will handle grievances and
negotiations.

The Board's application of the totality-of-circumstances
analysis here was fair and rational, and fully consistent
with its prior affiliation jurisprudence, including the
decisions in Western Commercial and Garlock. Application
of the Board's affiliation principles will sometimes lead to a
determination that substantial changes have taken place,
warranting an employer's refusal to bargain. In other cases,
the analysis will rationally lead to a conclusion that
continuity exists, leaving a recalcitrant employer subject to
the sanctions of the NLRA for its withdrawal of recognition.
That the analysis leads to different results, and that the
Board reached a different conclusion under its analysis in
the present case than it did in Western Commercial and
Garlock, is insufficient reason for us to look unfavorably on
either the Board's affiliation principles or its application of
these principles. We will not deny enforcement of the
Board's order simply because it has reached a different
conclusion here than it did in prior cases with somewhat
similar--but ultimately distinguishable--facts.

Other courts have similarly found no problem with the
varying results the Board has reached in applying affiliation
facts to its principles. The Seventh Circuit granted the
Board's petition for enforcement of a decision finding that
continuity existed despite the international's post-affiliation
right to review all bargaining proposals and final
agreements of the previously independent union; the
requirement that the international authorize any local
strikes; and the fact that the local's dues were subject to
minimums set by the international. See May Dep't Stores,
897 F.2d at 229; see also id. at 229-30 & n.10 (discussing
the relevant affiliation factors and distinguishing Western
Commercial and Garlock).

The First Circuit recently affirmed a Board finding of
continuity following affiliation despite the fact that the post-
affiliation entity had all new officers and the former entity's
assets were transferred to the union with which it affiliated.
See Sullivan Bros., 99 F.3d at 1224, 1229. Finally, earlier
this year, the Eighth Circuit granted a Board petition for

                               17
enforcement of a decision finding continuity, relying on four
primary factors: (1) "the employees retained the right to
elect their own negotiating teams for collective bargaining";
(2) employees maintained "the right to decide whether to
accept contract proposals"; (3) local officials would decide
whether to take a grievance to arbitration, although
international officials could assist in the process; and (4) no
employees could be forced to pay dues or fees to the new
entity, as the plant was in a "right-to-work" state. Sioux
City Foundry Co. v. NLRB, 154 F.3d 832, 840 (8th Cir.
1998). All but the last factor are present in this case.

VI.

For the foregoing reasons, we will grant the Board's
Petition for Enforcement of its decision and deny CPS's
petition for review.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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