1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/259
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 vicepresident, 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 preaffiliation 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-ofcircumstances 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-ofthe-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 postaffiliation 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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