
USCA1 Opinion

	




                            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 &  Corcoran was  on               ___________________              ___________________          brief for petitioner Sullivan Brothers Printers, Inc.               Anton G. Hajjar, Adrienne L. Salda a and O'Donnell, Schwartz               _______________  ___________________     ___________________          & Anderson,  P.C. on  brief for petitioners  Local 600M,  Graphic          _________________          Communications  International Union,  AFL-CIO,  CLC  and  Graphic          Communications International Union, AFL-CIO, CLC.               David A. Fleischer, Senior  Attorney, with whom Frederick L.               __________________                              ____________          Feinstein, General Counsel, Linda Sher, Associate General Counsel          _________                   __________          and  Aileen A.  Armstrong,   Deputy  Associate  General  Counsel,               ____________________          National Labor  Relations Board  were on  brief for  the National          Labor Relations Board.                                 ____________________                                   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) & (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) & (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 &                      ________                           __________________          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. & 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 & 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 & 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 & 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                                                         ______     _______          &  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 &                      ___ _________________________          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. & 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-
