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. e du/thir dc ir c uit_1998/259Filed 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-Applicatio n 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

2JONATHAN 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 re view 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 Unio n ("OCAW" or "International"). The Board has cross-pe titioned for enforcement of its bargaining order. CPS does n ot contest that it failed to recognize and bargain wit h 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 "res ulted in such discontinuity that OCAW could not legitimately claim to represent the employees without a NLRB election to resolve the question concerning representation." Pe t'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 Gloekl er N.

3E. Co., 540 F.2d 197 (3d Cir. 1976); American Bridg e Div.,

U.S. Steel Corp. v. NLRB, 457 F.2d 660 (3d Cir. 197 2). Our reasoning in those cases, however, has been undermi ned in significant respects by an intervening decision of the Supreme Court. See NLRB v. Financial Inst. Employee s, Local 1182, 475 U.S. 192 (1986) [Sea-First]. Sea-Fi rst created a new standard by which we must evaluate ca ses such as the present one and prevents us from relyin g on at least some of the factors we considered persuasive in our earlier cases. More specifically, Sea-First require s the Board (and us) to focus exclusively on employees and thei r relationship to their union when evaluating whether a "question of representation" exists. Any concern wi th the effect of internal union changes on the union's rel ationship with the employer, upon which we focused in our ear lier cases, are outside the purview of representation is sues under the Act. Further, to the extent that a portio n of our analysis in the earlier cases is still valid, wefin d this case easily distinguishable on its facts.

In this case, the Board applied its general princip les governing union recognition, as well as the specifi c principles for union affiliations that require the employer to
demonstrate that an affiliation has created a subst antial change in a union and in the relationship between t he employees and their union. The Board found there to be no substantial change. We find that the Board's factua l findings and its application of these affiliation p rinciples have substantial support in the record, and that it s conclusions are based on a reasonable interpretatio n 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

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1. CPS also sought review of the Board's refusal to enforce its subpoena for certain union records. CPS did not formally req uest that the Board enforce the subpoena, and virtually all of the reco rds 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 t o an NLRB hearing will be rejected), vacated in part on other grounds , 907 F.2d 400 (3d Cir. 1990) (en banc).

4I.

CPS operates a chemical plant in Old Bridge, New Je rsey, at which it employs approximately 32 production emp loyees (operators, mechanics, and laborers). From 1984 thr ough 1995, these employees were represented by an indepe ndent union, which was not affiliated with any local, reg ional, or national organization. The independent union handle d its own negotiations, electing a committee of workers t o bargain with the employer, and processed its grieva nces without outside assistance. On the rare occasions w hen grievances were arbitrated, the union hired an atto rney to handle those cases. In 1995, leaders of the indepen dent union began exploring the possibility of affiliatin g with a larger union. At this time, the employer and union were parties to a three-year collective bargaining agree ment, effective through January 3, 1996. In April 1995, a bout half of the CPS employees met with representatives of Lo cal 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 leade rship for CPS employees to vote on whether or not to affi liate 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 abse ntee 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 a nd property of the independent union to Local 8-397. T he
resolution also indicated that Local 8-397 would be come a party to the collective bargaining agreement with C PS, and directed the leadership of the union to take all ne cessary 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 dif ferent employers are affiliated with the Local, which has about 550 members. All Local 8-397 members employed by th e same company make up a "unit group." Each unit grou p handles its own negotiations and grievances, but a

5representative of OCAW usually assists in negotiati ons and

arbitrations. The unit groups decide grievance sett lements on their own and must approve any collective bargai ning agreement to which they are a party. The Internatio nal also must approve any contracts negotiated by the unit g roups, but the International cannot force a unit group to accept a contract that the latter does not itself approve. L ocal 8-397 dues are equal to two hours pay per month, or about $30 for CPS employees, as compared to the independent u nion's dues of $12 per month. Unit groups elect a unit vic epresident, who leads the unit and sits on Local 8-3 97's executive board, and grievance/negotiation committe emen.2

Following the affiliation vote, Local 8-397 wrote t o CPS informing it of the affiliation. After requesting c ertain information and noting that it would withhold judgm ent on the affiliation, CPS notified Local 8-397 on June 7 , 1995, that it would not recognize the affiliation and tha t 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 wit h the NLRB, which issued a complaint against CPS, allegin g violations of section 8(a)(1) and (5) of the Nation al Labor Relations Act, 29 U.S.C. S 158(a)(1), (5) (1994). S ection 8(a)(5) provides that it is an unfair labor practic e for an employer to refuse to bargain with the representati ve of its employees. Section 8(a)(1) makes it improper to "in terfere with, restrain, or coerce employees in the exercise of the rights guaranteed" in section 7 of the Act, includi ng the rights to organize and bargain collectively. Follow ing a hearing, an Administrative Law Judge found that CPS had violated both section 8(a)(1) and (5). The Board af firmed the ALJ's findings and adopted his recommended order. S ee CPS Chemical Co., 324 N.L.R.B. No. 154, 1997 WL 703 038 (Nov. 7, 1997). CPS petitioned this Court for revie w of the Board's order and the NLRB cross-petitioned for

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2. The CPS unit group has not held elections becaus e CPS has refused to recognize and bargain with the new entity. It ex pects to do so once recognition is forthcoming. The president of the fo rmer independent union has maintained his leadership position pendin g elections, effectively acting as the new unit's vice president

.

6enforcement of the order. We have jurisdiction unde r

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 fr om factual determinations if they are supported by sub stantial evidence." Stardyne, Inc. v. NLRB, 41 F.3d 141, 151 (3d Cir. 1994). Substantial evidence is "more than a mere sc intilla.
It means such relevant evidence as a reasonable min d 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 le gal analysis of the affiliation issue, our review is pl enary, but "[b]ecause of the Board's `special competence' in t he field of labor relations, its interpretation of the Act is a ccorded substantial deference." Pattern Makers' League v. N LRB, 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 rebut table presumption that it has the support of a majority o f 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 e mployer who believes that a "question of representation" ex ists-- 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) petiti on 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 pol l 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 empl oyer who chooses either of the latter two paths must sho w that

7it had a "good faith reasonable doubt" as to the un ion's

continued majority support at the time it polled it s employees or withdrew support; otherwise, it commit s an unfair labor practice. See Allentown Mack, 118 S. C t. at
820.

In this case, the employer followed the third cours e, unilaterally withdrawing recognition from the union

. Therefore, it must demonstrate a "good faith reason able doubt" as to the union's majority status to avoid t he 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-affiliat ion entity to deny the latter the benefit of the majority supp ort presumption. The Board has developed specific rules for evaluating claims that an affiliation excuses an em ployer's withdrawal of recognition from its union. If the pr inciples 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 (3 d Cir. 1998) ("[T]his Court will enforce a board order tha t rests on
a construction of the Act that is not an unreasonab le or unprincipled construction of the statute." (interna l quotations and brackets omitted)).

The relevant measuring rod in an affiliation case i s contained in NLRA section 9(c), which provides that the Board can certify or decertify a union only after h olding 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 em ployer refused to bargain with its union. In this case, it is concede d 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 t o the union's majority status. It is appropriately the employer's burden t o prove this defense to the established refusal to bargain. See Hajoca , 87 2 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 a ffiliation lacks substantial continuity."); cf. Allentown Mack, 118 S. Ct. at 820 (noting that withdrawal of recognition is an unfair labor p ractice "unless the employer can show that it had a `good faith reasona ble doubt' about the union's majority support").

8hearing and determining that "a question of represe ntation

exists," and then directing that an election be hel d. 29 U.S.C. S 159(c). Under section 9(c), any Board rule regarding union affiliations and withdrawal of reco gnition must be grounded in the basic "question of represen tation"

formula:

Under the Act, the certified union must be recognized as the exclusive bargaining representative o f all employees in the bargaining unit, and the Bo ard cannot discontinue that recognition without determining that the affiliation raises a qu estion of representation and, if so, conducting an ele ction 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 representa tion, the statute gives the Board no authority to act.").

Sea-First is the Supreme Court's leading union-affi liation case. A unanimous Court held that a question of representation arises only if (1) "a new affiliatio n . . . substantially change[s] a certified union's relatio nship with the employees it represents" and (2) this change ma kes it "unclear whether a majority of employees continue t o support the reorganized union." Id. at 202. Further , the
Court noted that the evaluation of these issues mus t be undertaken with the policy of the NLRA in mind: ind ustrial stability, which "would unnecessarily be disrupted if every union organizational adjustment were to result in displacement of the employer-bargaining representat ive relationship." Id. at 202-03 (internal quotations o mitted). While CPS correctly notes that the Court in Sea-Fir st did not pass on the Board's underlying affiliation jurisprudence, see id. at 200 n.7, the Court's hold ing that
the Board's affiliation rule at issue there exceede d 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 groun ded in this reading of section 9(c), it will be a reasonab le interpretation of the Act.

9B.

Both before and after Sea-First, the Board's standa rd for evaluating affiliation cases has been straightforwa rd: an employer can rebut the presumption that a post-affi liation entity continues to enjoy majority support by provi ng that either (1) the affiliation vote did not meet minima l due process standards or (2) the affiliation substantia lly changed the nature of the pre-affiliation union. Se e, e.g., Western Commercial Transp., Inc., 288 N.L.R.B. 214, 217 (1988) ("The Board's traditional practice in such c ases has
been to examine whether an affiliation election was conducted with appropriate safeguards and whether t here was a substantial change in the identity of the representative entity."). CPS does not argue that t he vote lacked due process, so we need not address that iss ue here.

The Board has traditionally used a totality-ofcircumstances analysis to determine whether there h as been a substantial change in a union following affi liation. See, e.g., Sullivan Bros. Printers, Inc. v. NLRB, 9 9 F.3d 1217, 1223 (1st Cir. 1996). While the specific fact ors may differ in each case, we will typically defer to the Board's choice and evaluation of these factors as long as t he focus remains on whether "a question of representation" e xists and the Board's application of the factors is not a rbitrary and capricious.

III.

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

10May 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-Fir st."); 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 jurispru dence in this area . . . ."). Moreover, to the extent these cases remain good law, we find them distinguishable on their fac ts from the present case.

The first of these cases was American Bridge Divisi on, U.S. Steel Corp. v. NLRB, 457 F.2d 660 (3d Cir. 197 2), which is wholly distinguishable on its facts.4 It w as

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4. In American Bridge, we found that an affiliation created "a far
different organization because the people who conduct a subst antial part of the unit's dealings with management are no longer the a ssociation's officers, and the power of the unit's members to control thos e agents has radically changed." Id. at 663. We focused on four factors: (1) the local union could no longer call a strike without the app roval of an outsider (i.e., the international's president); (2) settleme nt of all grievances

and other disputes would be made by the international u nion; (3) dues payments would go to the international union; and ( 4) the international had the power to determine when a strike would occu r 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 indepe ndent 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 t he 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 withou t approval from the Local or OCAW. While OCAW has the right to withhold strike funds, there is no indication that the pre-affiliation uni on had any strike funds available, so "there is no showing that the CPS emp loyees' freedom to strike has been impaired in any material way as a r esult of the affiliation." CPS Chemical Co., 324 N.L.R.B. No. 15 4, 1997 WL 703038, at *7 (Nov. 7, 1997). Local CPS employees will serv e on the bargaining committee for negotiations, although an OCAW repres entative may assist them. No contract can be imposed on the employees w ithout their consent. Grievances will be handled by the local of ficers, while the CPS unit will be assisted at arbitrations by an OCAW re presentative as they had been by an outside attorney before the affiliat ion. Finally, while the

11primarily in the latter two cases that we relied on factors no

longer viable after Sea-First. These affiliation ca ses, like American Bridge, are distinguishable from the prese nt one, but more importantly, they have been partially (and significantly) undermined by Sea-First. In those ca ses, we focused, at least in part, on the effect of the aff iliation on the employer. The Supreme Court, however, made clea r 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 affiliatio n affects
the union and its members.

In NLRB v. Bernard Gloekler North East Co., 540 F.2 d 197 (3d Cir. 1976), the international union with which the independent entity eventually affiliated challenged the status of the independent union (alleging that it w as 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 internati onal's representative entered affiliation discussions with the union it had previously attacked. See id. at 198, 201, 20 3 n.9. As in American Bridge, in Bernard Gloekler the local w ith which the previously independent union affiliated c ontrolled
access to arbitrations and the international had so le
discretion whether or not to call a strike. See id. at 199-

200.

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

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present case does share one factor with American Br idge (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 th e fact that a large international union can provide more extensive serv ices than a small independent like the Association." Id. at *6.

12affiliation from one international to another. . .. For all

intents and purposes, the company's position indica ted 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 presen t in this case or are not a proper part of the affiliation an alysis after Sea-First. These included "control by the Internati onal over the procedure for calling a strike" and concern ove r the fact that "the Company is now required to bargain with a n International Union . . . which can also flex consi derably more bargaining muscle than the 30-person local Independent." Id. at 557. We then held that "the in crease in bargaining power," along with the transfer of much control to the international, made the case indistinguishab le from American Bridge and Bernard Gloekler. See id. Final ly, we outlined our view of the proper affiliation analysi s, 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 va lid. See, e.g., May Dep't Stores, 897 F.2d at 229 n.9 ("[T]he increased size, financial support and bargaining po wer that such mergers create are the very factors recognized by the Supreme Court in Sea-First as the ordinary, valid r easons for mergers.").

In Sea-First, the Court made clear that an affiliat ion is no different from other internal changes made by a uni on, and that it only justifies a change in the bargaining r elationship 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 a n affiliation, the Court noted:

The Act assumes that stable bargaining relat ionships are best maintained by allowing an affiliate d union to continue representing a bargaining unit unle ss the Board finds that the affiliation raises a qu estion of representation. . . . The Board's rule effec tively gives the employer the power to veto an independen t union's decision to affiliate, thereby allowing the employer to

13directly interfere with union decisionmaking Congress

intended to insulate from outside interferen ce.

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 th eir employer).

The emphasis in Bernard Gloekler and Sun Oil on the effect of the affiliation on the employer clearly i s not an appropriate focus following Sea-First, and we decli ne to consider this factor (and the Board properly declin ed as well) in this or future cases. We also conclude tha t the remaining factors from these earlier cases, such as the lack of local control over grievances, bargaining, and s trikes, are readily distinguishable from those in the present c ase, in which the CPS employees retain authority over day-t o-day matters such as grievances and negotiations. Finall y, we note that our analyses in Bernard Gloekler and Sun Oil ignored the Board's longstanding presumption, impli citly endorsed by the Court in Sea-First, that an affilia tion itself has no probative value regarding employees' continu ed support for the union. See Sea-First, 475 U.S. at 2 03 n.10. In our earlier cases, the smaller union's act of af filiating with a larger organization was itself seen as proba tive of a lack of continuity, justifying the employer's refus al to recognize the new entity. After Sea-First, this pre sumption of discontinuity from the fact of affiliation is no longer

warranted.5

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5. Judge Garth notes that Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), specify ing a standard of deference, was decided by the Supreme Court after t his Court's trilogy of cases (Sun Oil Co. v. NLRB, 576 F.2d 553 (3d Cir. 1 978); NLRB v. Bernard Gloekler N. E. Co., 540 F.2d 197 (3d Cir. 1 976); American Bridge Div., U.S. Steel Corp. v. NLRB, 457 F.2d 660 (3d Ci r. 1972)). Chevron
dictates that a federal court "must defer to a reas onable 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 opinio n, decided before Chevron, did not accord proper Chevron deference to an administrative agency (OSHA), and therefore did not bind a subsequ ent panel. See id. at 859-60. Judge Garth believes that the deferentia l standard of review we apply here is consistent with principles in Chev ron because Congress has not spoken to the pre- and post-affiliation cir cumstances that would raise a question of representation sufficient to re lieve an employer of
its statutory bargaining obligations.

14IV.

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 i ts affiliation principles in this case. The factors which the Boar d found dispositive here included the following: (1) the in dependent union's president continues to serve as the unit's leader following affiliation; (2) employees are eligible t o join the new union without paying an initiation fee and with out 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' fre edom 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 w ere transferred to Local 8-397, "there is no showing th at the CPS employees have fewer resources that can be comm itted to their representational needs" than before the af filiation.

Id. at *8.

CPS challenges some of the factual findings underly ing the Board's decision and also argues that there is a lack of continuity on the basis of additional factors not l isted above. Although reasonable minds could differ on ce rtain conclusions,6 there is clearly substantial support in the record for the Board's findings of fact. In some ca ses, the factual disputes revolve around the differences bet ween the stated policy of OCAW and its actual practice, with CPS emphasizing the former and the Board focusing on th e 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 substan tial evidence supporting the Board's finding of continui ty or simply immaterial to a determination of whether a q uestion

___________________________________________________ ______________

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

15of representation exists, and not worthy of discuss ion. We

thus find CPS's attack on the Board's affiliation a nalysis to be without merit and have no difficulty enforcing i ts bargaining order on the basis of its rational analy sis of the

relevant factors.

V.

CPS also claims that the Board's decision in this c ase is inconsistent with its own governing precedents, inc luding the two leading affiliation cases after Sea-First. In both of those cases, a majority of the Board found that sub stantial changes had occurred following affiliation, excusin g the employer's refusal to recognize the post-affiliatio n 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 to tality-ofthe-circumstances analysis, we find nothing troubli ng 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 whi ch 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 wer e formerly handled by an elected employee-officer; (2) strikes could only be undertaken with the approval of internation al officers; and (3) in at least one of the cases, the re 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, wefin d substantial support in the record for the Board'sfi nding that these factors are not present here. Daily repr esentation matters, grievances, and contract negotiations will be handled by CPS employees, as they were prior to the affiliation. The only difference is that the affili ation has provided the employees with the option of seeking assistance from OCAW staffpersons when grievances a re taken to arbitration or when contract negotiations are being conducted. The decision to strike can be made by CP S employees alone, without the approval of any Local 8-397 or OCAW officers. Finally, CPS employees will conti nue to

16elect their ultimate leader, the unit vice-presiden t, as well

as committee members who will handle grievances and negotiations.

The Board's application of the totality-of-circumst ances analysis here was fair and rational, and fully cons istent with its prior affiliation jurisprudence, including the decisions in Western Commercial and Garlock. Applic ation of the Board's affiliation principles will sometime s lead to a determination that substantial changes have taken p lace, warranting an employer's refusal to bargain. In oth er cases, the analysis will rationally lead to a conclusion t hat continuity exists, leaving a recalcitrant employer subject to
the sanctions of the NLRA for its withdrawal of rec ognition. That the analysis leads to different results, and t hat the
Board reached a different conclusion under its anal ysis in the present case than it did in Western Commercial and Garlock, is insufficient reason for us to look unfa vorably on either the Board's affiliation principles or its ap plication of these principles. We will not deny enforcement of t he Board's order simply because it has reached a diffe rent conclusion here than it did in prior cases with som ewhat similar--but ultimately distinguishable--facts.

Other courts have similarly found no problem with t he varying results the Board has reached in applying a ffiliation facts to its principles. The Seventh Circuit grante d the Board's petition for enforcement of a decision find ing 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 lo cal strikes; and the fact that the local's dues were su bject to minimums set by the international. See May Dep't St ores, 897 F.2d at 229; see also id. at 229-30 & n.10 (dis cussing 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 t hat the postaffiliation entity had all new officers and the for mer 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 petit ion for

17enforcement of a decision finding continuity, relyi ng on four

primary factors: (1) "the employees retained the ri ght to elect their own negotiating teams for collective ba rgaining"; (2) employees maintained "the right to decide wheth er to accept contract proposals"; (3) local officials wou ld decide whether to take a grievance to arbitration, althoug h international officials could assist in the process ; and (4) no employees could be forced to pay dues or fees to th e new entity, as the plant was in a "right-to-work" state . Sioux City Foundry Co. v. NLRB, 154 F.3d 832, 840 (8th Ci r. 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 C PS's petition for review.

A True Copy:

Teste:

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

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