Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

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Tuesday, January 13, 2009

NLRB Summarizes Successorship Doctrine

Nlrbseal I bring Professional Janitorial Service, 353 NLRB No. 65 (Dec. 17, 2008), to your attention because it does a nice job of summarizing the Board's successorship doctrine. This doctrine provides guidance with respect to when a successor employer has an obligation to bargain with an existing union. The Board ALJ decision (which was affirmed by the Board) described the applicable principles as follows:

In addition to the obvious mathematical determination of
majority status, it must be determined at what date/dates to
determine majority status and what group or groups of employees
represent an appropriate unit herein. As to the first issue,
the law is clear and was stated succinctly in Royal Midtown
Chrysler Plymouth, Inc., 296 NLRB 1039, 1040 (1989):
Successorship does not automatically carry with it the obligation
to bargain with the union that represented the predecessor’s
employees. Nor does the fact that the union represents a
majority of the successor’s employees in an appropriate unit
operate alone to invoke the bargaining obligation; and this is
so even when the successor has attained a “substantial and
representative complement” of employees. The bargaining
obligation- albeit potentially present when successorship and
representative complement are established- must be triggered
by a demand for recognition or bargaining.
The Supreme Court stated in Fall River Dying Corp. v. NLRB,
482 U.S. 27, 52 (1987): “The successor’s duty to bargain at the
‘substantial and representative complement’ date is triggered
only when the union has made a bargaining demand.” Similarly,
the administrative law judge in Paramus Ford, Inc., 351
NLRB No. 53, slip op. 5 (2007), stated: “The Board will normally
assess whether an employer is a successor as of the time
a union makes its demand for recognition and bargaining, provided
the employer has already hired a substantial and representative
complement of employees.” Based upon the above, as
the Union’s bargaining request for West Lake and Louisiana
was dated January 31, and its bargaining request for Richmond
is dated April 3, those are the dates for determining the Union’s
majority status among the employees at those locations, as it
seems clear that by those dates the Respondent employed a
substantial and representative complement of employees at
each of these locations.

Mitchell H. Rubinstein

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