*1 v. FALL RIVER DYEING & FINISHING CORP. NATIONAL LABOR RELATIONS BOARD Argued No. 85-1208. March 1987 Decided June *2 Blackmun, J., opinion Court, delivered the Brennan, in which Marshall, Stevens, Scalia, JJ., joined, I Parts and III of White, J., joined. Powell, which J., dissenting opinion, filed a in which Rehnquist, J., O’Connor, J., joined, C. post, p. 54. Drogin argued petitioner.
Ira the cause and filed briefs for Deputy argued Solicitor General Cohen the cause for re spondent. himWith on the brief were Solicitor General Christopher Wright, Fried, J. Come, Norton J. Linda Sher, *3 * Bell, and Robert C. Jr. opinion delivered the † of the Court. Justice Blackmun In this case we are confronted with the issue whether the National Labor Relations Board’s decision is consistent with Security NLRB v. Burns Services, International Inc., 406 (1972). U. In Bums, S. this Court ruled that the new employer, succeeding to the another, business of had an ob- ligation representing predeces- to with the union employees. sor’s Id., at 278-279. We first must decide only whether Burns is limited to a situation where the union recently employers, was certified before the transition or applies whether that decision also where the union is entitled presumption majority support. inquiry pro- to a Our then urging *Briefs of amici curiae reversal were filed for the Chamber of by Stephen Bokat; Commerce United States Peter Nash G. A. Legal and for the Foundation of Fleming America Jean Powers and Crump. David Berzon, Shine,
Marsha D. S. Bruce and Laurence Gold filed a brief for the American Federation of Congress Organiza- Labor and of Industrial urging tions et al. as amici сuriae affirmance. joins only
†JuSTiCE I opinion. White Parts and III of this ceeds to three that concern rules the Labor Board questions has context. we must developed successorship First, determine whether there is substantial record evidence to the Board’s conclusion that was a “succes- support sor” to its Sterlingwale Corp., predecessor. business Sec- ond, we must decide whether the Board’s “substantial and rule, representative complement” designed identify the date when a successor’s obligation bargain with the prede- Burns, arises, cessor’s union is consistent with employees’ and was in this reasonable, properly case. applied Finally, must examine the we Board’s demand” “continuing principle the effect if a union that, has to a successor a presented demand for bargaining, this demand continues premature effect until the successor acquires “substantial and repre- sentative complement” triggers obliga- tion to bargain.
I For over 30 years 1982, Sterlingwale before operated textile Fall dyeing finishing plant River, Mass. Its business consisted of two basically called, re- types dyeing, and “commission.” Under the spectively, “converting” con- which in 1981 verting process, accounted for 60% to 70% of its business, see App. Sterlingwale bought unfinished fab- rics for its own account, dyed finished and then them, sold them to manufacturers. apparel com- mission which accounted for the dyeing, remainder of its *4 business, and finished fabrics Sterlingwale dyed by owned Id., at 124. customers to their according specifications. financing marketing aspects converting and com- mission are different. dyeing to Converting requires capital fabrics and a sales force to purchase promote the finished Id., at 123. The products. production process, however, Id., the same for both and commission converting dyeing. at 98.
In the late 1970’s the business, textile-dyeing including to suffer from adverse economic condi- Sterlingwale’s, began foreign competition. tions and After 1979, business at Sterlingwale took a serious turn for the worse because of the export company loss of its market, id., 127-128, at and the employees, reduced the number of its at id., 192-195. Fi- nally, February Sterlingwale pro- in laid off all its employees, primarily longer duction because it no had the capital converting to continue the business. at Id., 77-78, 104,130-132. It retained a skeleton crew of workers and su- pervisors ship goods remaining to out the on order and to corporation’s building machinery. maintain the Id., at following layoff, In 147-148. the months Ansin, Leonard Sterlingwale’s president, liquidated inventory of the cor- poration partner and, at the same time, looked for a business with whom he could “resurrect the 114- Id., business.” community 115, 146-147. Ansin felt that he owed it to the employees keep Sterlingwale operation. and to the to in Id., at 103-104. long Sterlingwale
For almost as as had in been existence, prоduction repre- and maintenance had been by sented the United Textile America, Workers of AFL- (Union). CIO, Local 292 Id., at 60-61. The most recent collective-bargaining agreement Sterlingwale’s before de- negotiated expire mise had been in 1978 and was due to By agreement an dated October re- however, sponse by Sterlingwale, to the financial difficulties suffered agreed agreement the Union to amend the 1978 to extend its expiration year, April any date one until 1, 1982, without wage agreement improve pro- increase and with an labor ductivity. following In Id., at 353-355. the months February layoff, company final the Union met with offi- problems involving job particu- cials over this action, and, Sterlingwale’s pay premiums group-health lar, failure on during insurance. 66-67, 86,131. addition, meet- ings Ansin, Union him officialstold of their concern with Sterlingwale’s helping keep future and their interest *5 inor company operating meeting prospective buyers. Id., 67-68, 86, at 146-147.
In 1982, however, Sterlingwale finally late summer went It made an for the benefit of assignment out of business. its id., at Ansin’s who was creditors, 115,147, primarily mother, an officer of the and holder of a first on corporation mortgage id., at most of real and the Sterlingwale’s property, Resource (MCRC), Massachusetts which Capital Corporation held a interest on and security Sterlingwale’s machinery id., at 113-114. Ansin also hired equipment, professional of the company’s assets, liquidator dispose remaining Id., at auction. at 115. mostly inventory, this same a former During period, Sterlingwale employee and Arthur officer, Chace, Friedman, Herbert president customers, of one of Sterlingwale’s major Marcamy Sales formed Fall Corporation (Marcamy), River Dyeing & Finishing Chace, who had from Corp. resigned Ster- 1982, had worked there for 27 lingwale February years, had been at president charge vice sales the time of his depar- and had ture, participated collective bargaining Id., tenure at during Union his at 232. Sterlingwale. Chace and Friedman formed petitioner with intention of in the strictly business and of tak- engaging commission-dyeing ing advantage availability assets and Sterlingwale’s Id., at203-204, workforce. 223-224. Fried- Accordingly, man had from Marcamy acquire MCRC and Ansin’s mother real id., at Sterlingwale’s plant, property, equipment, id., them 238-272, convey at petitioner, 278-289.1 some of Petitioner also obtained in- Sterlingwale’s remaining Id., at the auction. ventory 200-202,290-293. liquidator’s Chace became vice petitioner’s president charge opera- and Friedman became its president. tions 1982, petitioner September began out of operating facilities and began former Sterlingwale’s hiring employees. acquire buildings one of the three formerly Petitioner did not used 200-201, Sterlingwale, App. id., and closed one that it acquire, did at 195. *6 supervisors at Id., 206-207. It advertised for workers newspaper, personally in local at id., 197-198, and Chace got prospective supervisors, in touch with several 197. id., at supervisors, super- Petitioner hired 12 of whom had been production Sterlingwale employ- with and 3 visors had been hiring Id., 196, there. at 220-222. ees its for decisions production employees, petitioner took into consideration rec- supervisors prospective ommendations from these em- ployee’s employment Sterlingwale. former with 223- Id., at hiring goal 224. initial Petitioner’s was to attain full one employees. shift of meant workers, which from 55 to Id., planned at 208. Petitioner to “see how business would be” goal permitted, after this initial had been met if and, business expand employees to two Ibid. shifts. The who were spent approximately start-up hired first four six weeks operations experimental produc- and an month in additional Id., 156-157, 207, tion. at 226-227.
By requested pe- letter 19, 1982, dated October the Union recognize bargaining agent petition- titioner to it as the for employees begin bargaining. er’s and to collective at Id., request, stating 360. Petitioner refused in its that, request legal view, the Id., had “no basis.” at 362. At that petitioner’s employees employees time, 18 of former were (1984). Sterlingwale. By 272 N. L. R. B. See year, petitioner November that had in a com- process range jobs, plete production operation, had its handling App. orders, and was 225-226; customer mid- January goal 1983, it had attained its initial of one shift of 227. workers, id., Of the 55 workers this initial represented peti- shift, a number half the over workers eventually Sterlingwale former hire, tioner would 36 were employees. Arg. ex- Tr. of Oral 28. Petitioner continued to pand by mid-April work had reached force, ex-Sterlingwale employ- full shifts. time, two For first (52 minority just barely were in ees but so or 53 out of employees). Arg. App. 294-302; Tr. of Oral engaged exclusively
Although petitioner in commission employees experienced they dyeing, the the same conditions they working Sterlingwale. produc- had when were unchanged process was and the on tion worked building, job in the machines, the same same with the same virtually supervisors. App. classifications, under the same petitioner’s 205-206. Over half the volume of busi- 152-156, Sterlingwale par- customers, and, came from former ness Marcamy. ticular, 314-316. prac- unfair 1, 1982,
On November Union filed an labor charge alleging that in Board, tice its refusal bar- *7 8(a)(1) (5) §§ gain petitioner had violated and of the National (NLRA), Labor Relations Act 49 Stat. as amended, (5).2 158(a)(1) §§ hearing, After 29 U. S. C. and a the Ad- (ALJ) Judge ministrative Law decided on the of that, facts petitioner Sterlingwale. was a successor to case, petitioner N. L. R. at 840. He that B., observed therefore obligation bargain would have an to with the if Union the ma- jority petitioner’s employees were former proper Sterlingwale. making He noted that the date for this mid-April, petitioner determination was not when first had working, mid-January, petitioner two shifts but when had at- “representative complement” employеes. tained a Ibid. acknowledged bargaining The ALJ that a demand for from necessary trigger petitioner’s obligation the Union was to to bargain, noted that the but Union’s demand of October although premature, continuing was “of nature.” Ibid. pertinent part: read in These practices “§ 158. Unfair labor
“(a) practices by employer Unfair labor practice employer—
“It shall an unfair labor be for an “(1) with, restrain, to interfere or coerce in the exercise of the guaranteed title; in rights section 157 of this “(5) bargain collectively to representatives to refuse with the of his em- 159(a) ployees, subject provisions to the of section of this title.” petitioner’s duty bargain in the of the Thus, ALJ, view mid-January Sterlingwale employees in because former arose in the and because the Union’s October then were in an un- demand was still effect. Petitioner thus committed practice refusing bargain. In a fair labor brief decision dissenting, one affirmed order, Board, member at 839.3 this decision. Appeals for the First also a di- Circuit,
The Court of
(1985).
enforced the order.
II
years ago in NLRB
Fifteen
v. Burns International Secu-
(1972),
rity Services, Inc.,
“In an election held but a before, few months the union designated bargaining agent had been for the majority in the unit of these had been hired Burns for work the identical unit. It undisputed that Burns all knew the relevant facts this regard and was aware of the certification and of the Services, Security Inc., v. Burns International (1972), 406 U. S. 272 petitioner was not a Sterlingwale, that, successor of light pre bargaining Union, mature demand which properly re jected, petitioner “good had a faith doubt” about the Union’s sta *9 any tus that obligation 2d, relieved it оf bargain. 775 F. at 434-441. collective-bargaining contract. these a
existence of not unreasonable for the Board to circumstances, it was represent em- certified to all that the union conclude majority represented ployees a of in the unit still reasonably employees en- could not have and that Burns good-faith Burns’ that fact. a doubt about tertained bargain obligation and con- the union over terms hiring employment from its of Wack- of stemmed ditions the recent election and and from enhut’s certification.” at 278-279. Board pre reasoning Although in Burns was tied to the facts our analysis suggested that our 274, at we there, id., sented see applicable equally a suc if a union with which even would be just been certified before had to had not cessor approval, employers. at 279 id., cited with We transition Appeals where it of decisions Board and Court 281, and “ha[d] change employ consistently that a mere of held been industry ownership employing not an is such ers or of affect the force of Board’s circumstance’ as to ‘unusual period majority operative if a the normal certification within ownership management change or of after employer.” preceding employed Id., at 279. were successorship situations these cases involved Several only question not certified had been the union where g., NLRB v. See, e. the transition date. time before short (CA5 1960); Tоm-A- 2d Ventshade, 303, 276 F. Inc., Auto (CA7 419 F. 2d Transit, NLRB, Inc. v. Hawk 1969). defining of the Board’s certification “the force
Moreover, operative period,” we S., 406 U. the normal within regarding presumptions a union’s in Burns to two referred following majority id., certification. See status by the Board as been certified after a union has First, n. 3. usually representative, bargaining-unit entitled to a year presumption for one fol- status conclusive citing lowing Brooks v. ibid., See the certification. *10 38 159(e)(3) (1964); § 98-99 96, U. S. see also 29 U. S. C.
(“No
any bargaining
any
in
election shall be directed
unit or
preceding
pe-
in
subdivision within which
the
twelve-month
held”).
a valid election
riod,
shall have been
Second, after
period,
presumption
this
the union is
to a
entitled
rebuttable
majority support.
citing
of
atS.,
U.
n.
Celanese
(1951).
Corp.
95 N. L. R. B.
America,
664, 672
of
presumptions
These
are based not much
so
on an absolute
certainty
majority
that the union’s
status will not erode fol
lowing
particular policy
certification, as on a
decision. The
”
overriding policy
peace.
of the NLRA is “industrial
Brooks
presumptions major
v.
S.,U.
103. The
.
ity support
policy by “promoting] stability
further this
in
collective-bargaining relationships,
impairing
without
the free
employees.”
choice of
Terrell
Co.,
Machine
173N. L. R. B.
(1969),
(CA4),
enf’d,
5Because the Chamber of Commerce as amicus curiae overlooks or ig acceptance in Burns as well presumptions nores our of the signifi as their cance, it can contend that Burns “turned on the particular circumstances that case—the recent union arguably pro election and certification which vided a factual presuming basis for that a of Burns’ represented union,” wanted to be Brief for Chamber of Commerce of United States as Amicus Curiae and that Burns requires “that there must be some rational presumptions majority sup factual basis for union port among a successor’s workforce.” at 18-19. This misunderstand ing presumptions proposal that, nature of the leads to the Chamber’s in a situation where the successor complement” arrives at a “full employers, bargaining relationships develop stable pursue goals of their mem- the unions to
which will enable peace. pursuit, turn, will further industrial bers, and this per- presumptions particularly The rationale behind successorship situation and so it is understand- tinent During a in Burns referred to them. able that the Court employers, peculiarly vul- a union is transition between *11 bargain- position. no formal and established nerable It has employer, relationship ing is uncertain about with the new employer’s plans, if and cannot be sure or when the the new being employer with it. While concerned new must employer, future of its members with the new the with the protect rights must whatever still exist union also collective-bargaining agreement under the with the members Accordingly, during unsettling predecessor employer.6 this presumptions major- period, the union needs the of transition safeguard ity it is entitled to its members’ status to which rights develop relationship the successor. and to a with supports application position employees also the
The of the successorship presumptions If in the situation. the enterprise employees in a new that substan- find themselves bargaining tially old, the but without their chosen resembles they may representative, their choice of a union well feel that only petition forced to for a gradually, the union should be of majority support. Id., Ac- again its at 26. Board election to establish views, essentially rejection which advocate a of ceptance of the Chamber’s understood, they logically require would presumptions presently as are any a union’s sta- whenever doubts existed about such an election tus, employer remained the same. regardless of whethеr the employer-transition period is difficulty during union faces an by The Union was confronted graphically exhibited the facts of this case. Sterlingwale willing layoff. App. Although officials at were attempted Sterlingwale it, unsuccessfully to have meet with the Union agreement, particu collective-bargaining honor its commitments under Id., Moreover, at 78-86. de larly dealing with health benefits. those employers, participate in the transition between spite the Union’s desire to petitioner’s acquisition. at 68-69. entirely in the dark about it was left subject vagaries enterprise’s to the of an transformation. feeling peace. This is not conducive to industrial In addi- being company layoff following tion, after hired a new initially primarily from the old; will be concerned maintaining jobs. they might their In fact, with new be in- support especially clined to shun for their former if union, they support jeopardize jobs believe that such will their they or if successor are inclined to blame the union for layoff problems their associated with it.7 Without presumptions majority support variety of and with the wide corporate possible, transformations an could use enterprise way getting a successor as a rid of a labor con- exploiting employees’ tract and of hesitant attitude to- continuing presence. wards the union to eliminate its recognizing presumptions In addition to the traditional majority -status, however, union Court Burns was “ safeguard rightful prerogative careful to 'the of owners in- dependently rearrange their businesses.’” Golden State Bottling (1973), quoting Co. v. U. S. *12 Wiley Livingston, Sons, John & Inc. v. 376 643, U. S. (1964). although We observed Burns that, the successor obligation bargain ordinarily has an to it union, “is employees free to set initial terms on which it will hire the predecessor,” by of a S., 406 U. at 294, and it is not bound provisions predecessor’s the substantive collective- bargaining agreement. explained Id., at 284. We further obligation employ- that the successor is under no to hire the predecessor, subject, of ees its of course, to the restriction against employees hiring. that it not discriminate union in its 280, 5; and n. see also Howard Johnson Co. v. Hotel (1974). Employees, 249, 262, 417 U. S. and n. 8 Thus, to 7 fact, appears that the dissatisfaction with the Union felt some Sterlingwale employees former by petitioner who were hired was due to benefits, inability payment the Union’s to obtain such as for health insur ance, pay, pay, severance and vacation from the failing Sterlingwale. 168, App. 18, 179-180. See also n. infra. applicability substantial extent the of Burns rests employer If
hands of the successor. the new makes a con- generally scious decision to maintain the same business and majority employees predecessor, to hire a of its from the then 8(a)(5) § bargaining obligation is activated. This employer makes sense when one considers that the intends to advantage predecessor.8 take of the trained work force of its Accordingly, acknowledged in Burns we the interest of the in its in- successor freedom to structure its business and the representation by terest of the in continued obligation bargain union. hold that a successor’s We now question is not limited to a situation where the union in has recently Where, here, been certified. as the union has a presumption majority rebuttable status, this status con- despite change employers. tinues And the em- new ployer obligation bargain long has an with that union so employer as the new fact a successor of the old majority employed by and the its were predecessor.9
8If, questions during negotiations, continuing a successor a union’s ma status, jority “may lawfully negotiation any withdraw from the successor following recognition time if it can show that the union had in fact lost its majority bargain status at the time of the refusal or that the refusal to objective grounded good-faith was on a doubt based on factors that majority support.” Harley-Davidson the union continued to command (1985). Co., Transp. express 273 N. L. R. The ALJ made B. no Moreover, finding petitioner’s good-faith on the issue of doubt. an em support, ployer, may petition unsure of union’s continued NLRB Financial Institution Employ Board for another election. See v. (1954). ees, Brooks v. (1986); 348 U. S. 475 U. S. request an Petitioner did not election. Term, recently adopted requiring Board rule Last we struck down a *13 in a employees permitted that nonunion must be to vote certified union’s rule, if the union did decision to affiliate with another union. Under union’s permit voting, such the Board would not amend the certifica not reorganized union. compel employer See tion or Employees, NLRB Financial Institution S., 201. This rule 475 U. at v. previous position whereby the affiliation was in direct conflict with a Board 42
I—II—i HH applica- rules, We turn now to the three as well to their as adopted tion to the facts of this that the case, Board has successorship given Board, situation. The of course, is authority interpret provisions considerable of the Employees, NLRB NLRA. See v. Financial Institution (1986). adopts 192, 475 U. S. If the Board a rule that is Act, rational and consistent with the see then the ibid., rule is entitled to deference from the courts. if the Moreover, application supported by Board’s a such rational rule is record, substantial evidence on the courts should enforce the Hospital Board’s order. See Beth Israel v. NLRB, 437 (1978); Corp. U. S. Universal Camera v. (1951). principles guide U. S. These also our successorship
review of the
Board’s action
See,
case.
g.,
Bottling
e. Golden
State
Co. v. NLRB,
S.,U.
at 181.
permitted
long
was
so
as the members of the union voted for it and there
continuity
Id.,
was substantial
between the new and the old unions.
“
rejecting
rule,
199-200.
the new
we observed that
‘[t]he industrial
stability sought by
unnecessarily
disrupted
every
the Act would
be
if
union
organizational adjustment
displacement
emplоyer-
were to result in
’”
bargaining representative relationship.
Id.,
202-203, quoting
Canton
Co.,
Sign
(1969),
174 N. L. R. B.
enf.
grounds,
denied on other
(CA6 1972).
many cases,
43
A
approved
approach
In Burns we
the
taken
the Board
accepted by
respect
determining
courts with
whether
company
a new
was indeed the successor to the old. 406
approach,
primar
U.
atS.,
280-281, and n. 4. This
which is
ily
upon
totality
factual
nature and is based
of the cir
given
requires
cumstances of a
situation,
that the Board
company
“acquired
focus on whether the new
has
substantiаl
predecessor
interruption
assets of its
and continued, without
change,
predecessor’s
opera
or substantial
business
Bottling
tions.” Golden State
Co. v.
414
S.,U.
at
the focus
Hence,
is on whether there is “substantial
continuity”
enterprises.
approach,
between the
Under this
the Board examines a number of factors: whether the busi
employers
essentially
ness of both
the same; whether the
company
doing
jobs
of the new
are
same
working
supervisors;
same
conditions under the same
entity
production process,
whether the new
has the same
produces
products,
basically
body
the same
has the same
of customers.
406
Burns,
S.,
280,
See
U.
n. 4; Aircraft
Magnesium,
Corp.,
Division
265 N. L. R. B. of Grico
(CA9
(1982),
1984);
enf’d,
1345
Although petitioner the Board’s “sub- not does *15 application continuity” approach, the it does contest stantial Essentially for the rea- case. to the fаcts of this of the rule by Appeals, given 2d, 775 F. how- the Court of sons find that there was the Board’s determination we that ever, Sterlingwale petitioner continuity” and between “substantial Sterlingwale’s supported petitioner is was successor and that acquired in the record. Petitioner evidence substantial machinery Sterlingwale’s property, its real most of inventory equipment, in- of its and materials.10 It and much significance product particular is no new line. Of troduced perspective employees, the their that, the fact from change. Although petitioner jobs con- not abandoned did dyeing, verting dyeing in favor of commission this exclusive employees’ change not alter the essential nature of the did types dyeing produc- jobs, both of involved same because job process. of were the tion The classifications petitioner’s employees Sterlingwale; worked as those of same supervisors the direction of on the same machines under most supervisors Sterlingwale. former of of whom were petitioner acquired Sterlingwale’s fact, clear that record, is taking advantage express purpose assets with the of of its predecessor’s work force. purchased makes much of the fact that it the assets of
10 Petitioner Petitioner, Sterlingwale “open on the market.” Brief for Petitioner 17. however, express purpose that it overlooks the fact was formed аssets, purpose accomplished by acquiring Sterlingwale’s having a its parent company acquire Sterlingwale’s major some assets then long transferring petitioner. them to So as there are other indicia of “sub continuity,” way predecessor’s a obtains the stantial which successor continuity” generally ques is not determinative of the “substantial assets Employees, Hotel 417 tion. See Howard Johnson Co. v. U. S. (1974); Bottling 168, 182, (1973); State Co. v. U. S. n. 5 Golden (1976). Gorman, Law 122 see also R. Labor successorship ques not
We do find determinative of tion the fact that there was a 7-month hiatus between Sterlingwale’s petitioner’s start-up. demise Petitioner argues coupled employ hiatus, that this with the fact its that through newspaper ees were hired advertisements —not through Sterlingwale employment records, which were not transferred to favor the it—resolves “substantial con tinuity” question. Brief See for Petitioner see 16-17, 20-22; (dissenting opinion). 2d, also 775F. at 439 Yet such hiatus only continuity” one factor in the “substantial calculus and only thus is relevant when other there are indicia of disconti nuity. Band-Age, (CA1), NLRB See v. Inc., F. 2d, (1976). Conversely, denied, cert. 429 U. S. if other fac continuity enterprises, tors indicate a between and the start-up period, “totality is a hiatus normal circum suggest present stances” will these circumstances *16 successorship situation. See NLRB v. Co., Daneker Clock (CA4 1975); 516 2d 315, Conn, F. 316 C. G. Ltd., 197 (CA5 (1972), N. L. R. B. 442, enf’d, 446-447 474 F. 1344 2d 1973). given above,
For the reasons is a this case where the other suggest cоntinuity” compa- factors “substantial between the despite nies Here, 7-month hiatus. moreover, the ex- Sterlingwale tent of hiatus between demise and the petitioner start-up is somewhat less than certain. After February layoff, Sterlingwale retained a skeleton crew of supervisors goods ship that continued to to plant. and to In addition, customers maintain the until the assignment for the benefit of the creditors late the sum- seeking Ansin to mer, was resurrect the to business or find a buyer Sterlingwale. for The Union was aware of these ef- employees’ perspective, forts. Viewed from the therefore, may the hiatus have been much less than seven Al- months. petitioner though employees through hired the advertise- supervisors, it often on ments, relied recommendations from formerly employed by Sterlingwale, themselves and intended 46 Sterlingwale the former work to reach
the advertisements force.11 petitioner
Accordingly, that, law, hold under settled we Sterlingwale. if thus must consider We was a successor duty bargain petitioner’s arose. and when
B that the successor had an Burns, the Court determined majority obligation because a of its with the union employed 406 atS., Wackenhut. U. had been bargaining obligation “triggering” fact for the 278-279. The composition the successor’s work force.12 The this was 11 continuity Sterlingwale Similarly, light general between of the employees, we do not find determi perspective from the of the enterprises by petitioner. between the twо cited native the differences sales, 20, appears change marketing Brief for Petitioner Petitioner’s relationship. peti employer-employee That to have had no effect on the 16, name, id., Sterlingwale’s liabilities or trade tioner did not assume outweigh factors. NLRB v. Band also is not sufficient to the other See (CA1), denied, (1976); Inc., cert. 921 Zim’s Age, 534 F. 2d U. S. Foodliner, (CA7), denied, 1133-1134 cert. Inc. v. 495 F. 2d (1974). Moreover, size, petitioner’s reduction in the mere U. S. 17-18, not comparison Sterlingwale, to that of see Brief Petitioner does employees’ expecta change company of the so as to defeat the the nature representation by NLRB v. Middle tions in continued their Union. See (CA1 1978). Inc., 590 F. 2d Apparatus, boro Fire Bums, concerning there was some initial confusion this Court’s After continuity if force would turn on whether a holding. It was unclear work predecessor majority employees were those of the or on of the successor’s predecessor’s employ the successor had hired whether *17 (“[A] S., majority employees by Compare 406 U. at 281 of the hired ees. by recently employer represented bargaining are certified the new (“[T]he id., designated bargaining had been agent”), with at 278 union majority employees these had agent for the the unit and Burns”). Employ Hotel See also Howard Johnson Co. v. been hired (“[Sjuccessor ees, S., employer majority prede hires a of the 417 U. at 263 NLRB, S., employees”); Bottling 414 cеssor’s Golden State Co. v. U. (same). Board, 184, approval Appeals, n. 6 Courts of interpretation. Spruce Up Corp., 209 adopted has the former See (CA4 enf’d, 1975); 194, 196(1974), F. 516 Main- L. R. B. 2d United N. question Court, however, did not have to consider the when obligation bargain the successor’s arose: Wackenhut’s con- expired began tract on June 30 and Burns its services with a majority guards July of former Wackenhut on 1. See id., present In other situations, as case, there is a start-up period by employer gradually the new while it builds operations employees. its and hires In these situations, the approval Appeals, Board, with the of the Courts of has adopted representative complement” the “substantial and fixing rule for the moment when the determination as to the composition of the successor’s work force is to be made.13 If, particular majority at this moment, a of the successor’s em- ployees employed by predecessor, had been then the suc- obligation bargain cessor repre- has an with the union that employees.14 sented these Mfg. Co.,
tenance
529,
&
214 N. L.
(1974);
R. B.
532-534
Saks & Co. v.
681,
(CA2 1980)
684-686,
(and
634 F. 2d
and nn. 2 and 3
cases cited
therein);
Note, Appropriate
see also
Employer
Standards of Successor
Ob-
ligations
Wiley,
Johnson,
Burns,
under
Howard
Wayne
L. Rev.
(1979).
1279, 1299
presented by
This issue is not
the instant case.
13 See, g., Indianapolis
Service,
e.
Inc.,
Mack Sales &
272 N. L. R. B.
690,
(1984),
(CA7
694-696
grounds,
enf. denied on other
“Although a ordinarily successor free to set initial terms on which it will hire the predecessor, of a there will be instances perfectly which it is employer plans clear that the new to retain all of the employees in the unit and in which appropriate it will be to have him ini- tially employees’ consult with the bargaining representative before he fixes situations, however, terms. In other may not be clear until the succes- *18 objective represents of “‘the an effort to balance This rule participation employee of insuring the selection maximum permitting against goal agent bargaining a possible/” quickly represented 2d, 775 F. as as to be Building Pre-Engineered Prod- quoting NLRB v. 430-431, 1979).15 (CA10 deciding In 2d ucts, 603 F. Inc., duty employees that he has a complement of his full employer has hired sor that the bar- union, be evident until then it will not bargain with a since employees in the unit represents a representative gaining 159(a).” §9(a) S., Act, § 406 U. 29 U. S. C. required as 294-295. however, the Court had resolved remark, was made after
This examining a successor would it was whethеr successorship issue and when setting initial terms and condi- bargain with the union before have to complement,” using the term “full particular, employment. tions of situation, in the exceptional alluded to distinguishing the was the Court consult with the union before sentence, in a successor should prior which conditions, situation which from the standard setting these terms and involvement. The terms free of the union’s set its own successor could fixing mo- respect to defining complement” “full not Court was union. Burns successor would have ment when the interpretation that term to mean that support to an therefore lends no only it has hired all the bargaining obligation arises when the successor’s employ. employees it intends to originated in representative complement” rule The “substantial when, ex representation faced with an the initial election the context of appro force, had to determine the contracting work the Board panding or Clement-Blythe Companies, See, g., an election. e. priate time for (CA4 1971). (1970), enf’d, The rationale 77 LRRM L. R. B. 502 N. the rule was as follows: desiderata, conflicting are sometimes often balance what “The Board must employee participation in the selection of a bar- insurance of maximum represented as employees who wish to be agent, permitting gaining Thus, unduly frustrate ex- possible. as would representation immediate bargaining representative delаy selection of a isting employees’ choice to Conversely, very employee is on board. years until the last for months or very few when an election for pointless to hold it would be complement expected multiply employee relatively period the short B., L. R. at 502. many times.” 182 N. hand, successorship the one context. On reasoning applies in the Similar possible many employees as of the successor as a concern to allow
there is *19 representative complement” when a “substantial and exists particular employer in a transition, the Board examines a job number of factors. It studies “whether the classifica- designated operation substantially tions for the were filled or operation filled and whether the inwas normal or substan- tially production.” normal Foods, See Premium Inc. v. (CA9 1983). NLRB, 709 F. 2d addition, it takes complement into consideration “the size of the on that date expected elapse substantially larger and the time to before a complement would be at ... work as well as the relative cer- tainty employer’s expected expansion.” of the Ibid. “representative
Petitioner contends that the Board’s com- plement” given injures repre- rule is unreasonable, that it the rights many employees sentation of the successor’s places significant upon that it burdens the successor, which bargaining obligation is unsure whether and when the will arise. Brief for Petitioner see also 24-31; Brief for Chamber of Commerce of Amicus United States as Curiae 21-25. Ac- cording petitioner, majority if status is determined at the complement” stage, employees “full all the will have a voice bargaining representative, in the selection of their and this truly support if will reveal the union has of most of the employees. approach, successor’s This however, focuses only having bargaining representative on the interest in se- by majority employees. lected It fails to take into significant employees being repre- account the interest of possible. especially sented as soon as The latter interest is heightened many in a situation where of the successor’s em- ployees, formerly by represented who were a union, find employer essentially themselves after the transition enterprise, bargaining represent- same but without their Having bargain employer ative. the new refuse to representative employees “disrupts chosen of these the em- ployees’ organizational morale, deters their activities, and participate hand, previ- in the selection of the union. On the other ous choice of a union those of the successor who had worked predecessor for the should not be frustrated. membership
discourages Franks Bros. Co. in unions.” their (1944). Accordingly, petition- 321 U. S. v. proposal complement” must fail.16 “full еr’s representative that this “substantial do we believe Nor places complement” on the em- an unreasonable burden rale employer ployer. if refuses to that, true an It is complement representative has once 8(a)(5). § violating if Furthermore, attained, it risks been complement recognizes employer has this the union before an recognition could constitute violation this reached, been practice 8(a)(2), § it an unfair labor which makes organization. support 29 U. S. C. a labor an *20 158(a)(2). § situation, see unlike the initial election And, applies employer, supra, this Board, not the here the n. rule. that in this situation the successor however, conclude,
We position the criteria of which are to followa rule in the is best generally employer straightforward.17 will know job certainty all its classifications have been when tolerable substantially it has hired a filled, when filled or begun it nor- hire, and when has it intends complement” production. Moreover, the “full standard mal necessarily by petitioner is not easier for a succes- advocated NLRB, (1954), Long ago, in Brooks v. S. 96 this Court ob 348 U. rights refusing employers rely employees’ on to bar allow served: “To in formally [of union not conducive to that end designated gain with the Moreover, 103. inimical to it.” peace], it is dustrial they longer reject believe no commands powerless to a union are not Employees, Institution S., NLRB v. Financial support. U. See their suecessorship situation and the initial elec between the 17 Thedistinction applies represent context, the Board itself “substantial where tion that, case, rule, partly in the fact in the latter complement” lies ative bargaining represent supervising the selection of a involved Board is Gorman, Law, In Labor at 46-49. con bargaining unit. See for the ative ease, already has been selected and is trast, where, in this a union as majority support, the Board’s involvement is presumption of entitled to a limited. more apply representative
sor to than is the “substantial and com- plement.” given expansionist many In fact, dreams of entrepreneurs, might new well be more difficult for a suc- identify complement” cessor to the moment when the “full attained, has been which is when the business will reach the employer’s hopes, limits new initial than it would be employer acknowledge this same the time when its busi- begun production ness has normal moment identified —the representative complement” the “substantial and rule.18 18 addition, employer if even an were to err as to the “substantial and representative complement” recognize date thus were to the union 8(a)(2) prematurely, § good-faith subject only violation of be would to a remedial order. See Garment Workers v. 366 U. S. (1961). Similarly, employer we assume that if the recog were to refuse to good-faith nize a union on the basis of its reasonable belief that it had not yet representative complement,” hired a “substantial and the Board would ibid., order, consequences likewise enter a remedial see with no collateral Finally, such as a if good-faith decertification bar. has a majority status, continuing doubt about the union’s it has several remedies 8, supra. available to it. See n. offers, support position
Petitioner in its employ- brief as for its that its ees, they complement,” Union, opposed once reached “full were to the cer- employee petitions signed days tain hearing May three before the Board on 25; App. approve 1983. Brief for Petitioner 364-367. We the Board’s Appeals’ petitions. and Court of treatment of these The ALJ ruled that petitions petitioner’s good-faith such were not relevant to doubt about the *21 majority mid-January petitioner’s bargain- Union’s status at the date when ing obligation arose. Appeals at 177-178. The Court of observed employer unlawfully that “once it has been determined that an has with- employees’ recognition bargaining representative, employer held of an the against bargaining by pointing cannot defend a remedial intervening to an employee support loss of for the support union when such loss of is a fore- consequence employer’s practice.” 2d, seeable unfair labor 775 F. petitioner’s bargain at 433. That refusal to with the Uniоn undermined employees’ support petitions the for the sug- Union and thus led to the by gested employee evidence in the An petitions record. testified that the signed employees’ were out of proceeding might delay fear that the Board expected wage Thus, App. very bargain an raise. the refusal to on petitioner’s part practice hearing produced that led to the unfair labor the petitions petitioner rely. on which would repre- Board’s “substantial hold that the therefore We successorship complement” in the rule is reasonable sentative application facts of this case is to the Moreover, its context. Ap- by supported of evidence. The Court record substantial mid-January petitioner by peals “had hired em- observed virtually job ployees classifications, had hired at least all in ultimately employ major- fifty percent the of those would employed majority ity the and it a classifications, of those eventually employ full when it reached it would peti- complement.” At that time 2d, at 431-432. 775 F. Although petitioner production. begun normal tioner had expand fact, reached this shifts, and, to two intended to contingent expressly expansion goal by mid-April, that was Accordingly, growth upon as found of the business. the by Appeals, approved by mid- the Court of Board and the petitioner January period reached “substan- the when complеment.” was representative Because at that time tial Sterling- petitioner’s were former obligation bargain employees, an had wale the Union then.
C
“continuing demand” rule is
the Board’s
also hold that
We
successorship
The successor’s
in the
situation.
reasonable
representative
duty
com-
at the “substantial and
only
triggered
plement”
the union has made a
when
date is
“continuing
bargaining
rule,
demand”
Under the
demand.
premature demand that has been
has made a
a union
when
rejected
employer,
until
this demand remains
force
employer
the “substantial and
attains
moment when
g.,
Magne-
complement.”
representative
e.
See,
Aircraft
Spruce Up Corp., B.,
9;
L. R.
n.
sium, 265 N.
1975).
(CA4
(1974),
The reasonableness of the demand” rule is Although demonstrated the facts of this case. the Union plans had Sterlingwale asked Ansin to inform it about his so that it could become involved in the transition, only the Union learned about this transition after it had be- accompli. having any come a Without established rela- fait tionship petitioner, surprising it therefore is not bargaining premature. the Union’s October demand was The Union, however, made clear after this demand that, petitioner bargaining obligation: its view, had a the Union practice charge filed an unfair labor in November. Peti- responded by denying any duty bargain. tioner that it had being Rather than a successor confused about when a bar- gaining obligation might posi- arise, took an initial 19 contrast, In in the situation where a yet union has not recognized been representative unit, bargaining as of a the rationale for “continuing demand” rule compelling is not so successorship as it is context presumption where a union is entitled to status and where the employer simply whether, has to determine appropriate date, at the predecessor’s employees majority. are recognition the initial union, employer, context the position not the is in the best to have access to the relevant information —whether the majority support union has the employees. *23 any tion—and stuck with it—that it never would have bar- gaining obligation with the Union.20 judgment Appeals
The of the Court of is affirmed.
It is so ordered. Justice Powell, with whom The Chief Justice and join, dissenting. Justice O’Connor Today petitioner Dyeing the Court holds that Fall River & 8(a)(1) (a)(5) §§ Finishing Corp. violated of the National (5) §§158(a)(1), (NLRA), Act, Labor Relations 29 U. S. C. by refusing bargain represent to with a union that claims to agrees its workers. The Court with the National Labor Re- (NLRB Board) duty bargain lations Board or that this petitioner Sterlingwale arose because ais “successor” to Corp., entity engaged a defunct that had in a similar line of agrees duty bargain business. The Court also that the petitioner brought oper- arose when had its first shift into full theory ation. The is that then had hired a “sub- representative complement” stantial and of its work force. my In successorship view, Court has misconstrued the misapplied complement doctrine and the substantial test. Accordingly, I dissent.1
20 Although
practice
the unfair labor
charge was
complaint
filed and the
mid-January
petitioner’s
issued before
obligation
when
arose and the viola
occurred,
tion
practice
an unfair labor
proceeding may be based on actions
following
filing
complaint.
See Curtiss-Wright Corp., Wright
of a
Aeronautical Div. v.
(CA3 1965).
347 F. 2d
73-74
preliminary matter,
As a
company
Court holds that if one
is a suc
another,
obligаtion
cessor to
it has an
prior company’s
though
union even
that union had not
recently by
been certified
the work
Ante,
notes,
ers.
at 41. As
finding
the Court
successorship
Services, Inc.,
NLRB v. Burns
Security
International
i—i !> background the Court describes this case Although consideration to a detail, insufficient number great gives February 12,1982, financially of critical facts. On troubled laid off indefinitely ceased Sterlingwale operations crew to workers, only skeleton production retaining ship inventory. out the orders remaining liquidate *24 (CBA) between the union collective-bargaining agreement and the April, was allowed com- Sterlingwale expire life and health ceased workers’ insurance pany paying to, obtain new Attempts financing keep premiums. afloat were unsuccessful. commenced Sterlingwale business its an for the benefit of liquidation by making assignment and then hired a to sell the creditors, professional liquidator assets at a auction. mid to late summer remaining public By ceased, all business had and the 1982, activity company closed its doors. permanently in
Petitioner Fall River & was Dyeing Finishing Corp. at the end of It most of August bought corporated furniture, and fixtures. It also Sterlingwale’s machinery, inventory a at the bought portion Sterlingwale public auction.2 Three weeks later it new em began recruiting ads in the local Petitioner by placing newspaper. ployees no workers, although by hired some former Sterlingwale even a of those who had been large percentage means all or decisions, took making hiring petitioner laid off.3 When petitioner I think it is clear that is not a successor issue because Sterlingwale. auction, 1982, apparently place petitioner took At the October $13,000 inventory $30,000 worth of out of the worth that was sold. bought App, 200-201. February 1982; by mid-January laid off in More than 150 workers were 92-93; 1983, App. perhaps had hired 36 of them. See 775 F. 2d 1985). (CA1 many The record does not reveal how of the laid-off applied positions company, al- Sterlingwale workers with the new applicant’s experience Sterling- into account the with either finishing plants, App. although or other 223; wale the former Sterlingwale supervisors had been hired who were consulted Sterlingwale applied, as to former workers who there finding group hiring no that these is workers as received a preference.- company began operations Once the new performed finishing November commission work exclusively, converting finishing rather than the that had Sterlingwale’s accounted for 60%-70% of business.4
B company course, Of a decision the NLRB that one of another deference, successor is entitled to and its upheld they if conclusions will be are based on substantial Bottling record evidence. See Golden State Co. v. (1973). question U. S. The critical in deter
mining successorship is whether there is “substantial con
tinuity”
Magnesium,
between the two businesses. Aircraft
Corp.,
(1982),
Division
265 N. L. R. B. 1344, 1345
ofGrico
(CA9 1984).
enf’d,
In this case the
evidence
shows
completely separate entity
Sterlingwale.
is a
from
There
Sterlingwale
awas clear break
between
time
ceased nor
operations
February
peti
mal
business
1982 and when
August.5
tioner came into existence at the end of
In addi
apparent
tion,
that there was no direct contractual or
relationship
petitioner
Sterling-
other business
between
App.
Although petitioner bought
wale. See
some of
Sterlingwale’s inventory,
by outbidding
it did so
several
buyers
open
purchases
other
on the
market. Also, the
at the
public
only tangible
sale involved
assets. Petitioner did not
buy Sterlingwale’s
goodwill,
trade name or
nor did it assume
any
petitioner’s
of its liabilities. And
over
while
half of
busi
(measured
dollars)
Sterlingwale
ness
came from former
apparently
company’s
customers,
this was due to the new
marketing
skill in
its services. There was no sale or transfer
given
lists,
of customer
the 9-month interval between thе
Sterlingwale
production
time that
ended
com
operations
menced
in November,
the natural conclusionis
through
that the new business attracted customers
its own
explanation
efforts. No other
was offered. Cf. Lincoln
(1971)(finding
Police, Inc.,
Private
189 L. R. B. N.
successorship question
it relevant to the
that, while the new
hiatus, stating
The Court dismisses the effect of this 7-month
that such
*26
important only
discontinuity.”
a break is
if there are “other indicia of
Ante,
Inc.,
(CA1),
(citing
Band-Age,
at 45
NLRB v.
534 F. 2d
cert.
(1976)).
denied,
course,
text,
business solicitation”). Any independent one of of so means did may standing to defeat a find be insufficient alone these facts together they persuasively successorship, ing demon but continuity” finding was the Board’s “substantial that strate incorrect.6 unpersuaded. It these views nevertheless is
The Court expecta- affecting employees’ directly the not as distinctions job the union as their or the status of their status tions about representative, though cor- the with the defunct CBA
even Bottling expired. long poration State See Golden had since importance (emphasizing supra, the at 184 Co. v. job perception situation continues that their the workers’ unaltered”). employees’ “essentially even from the Yet objective perspective, evidence that little there was simply jobs of thosе were a continuation with production Sterlingwale. were all of the When February indefinitely there could have been laid off certainly expectation hope no reasonable little —that —and reopen. Sterlingwale it reasonable ever Nor was would op- Sterlingwale’s expect textile failed that by corporation in exist- not then resumed erations would be April expired effort with no serious had ence. The CBA employees’ renegotiate benefits and with several it, employment unpaid. possibility with of further left entirely August disappeared Sterlingwale 1982 when then resemblance to Radiant Fash us bears a substantial The case before Inc., ions, case, alleged engaged in a supra. successor was location, predecessor, at the same to that of its business similar personnel, and a reduced but simi supervisory equipment, the same same company ruled that the was not a nevertheless work force. The Board lar (i) “lengthy” on four factors: there was It based its conclusion successor. company shut down and the time the first to 3 months between hiatus of 27a (ii) company bought only production; the second company began second (iii) business, ongoing enterprise; rather than an the first the assets of (iv) market; no transfer there was company served a different second B., 940-941. the sale. 202 N. L. R. as a result of of customers
59 remaining assets. Cf. Textile the company liquidated Darlington Manufacturing Co., Workers v. 380 263, U. S. (1965) (the of an entire business . . . the “closing ends After was or- employer-employee relationship”). petitioner in it advertised for workers the ganized, move newspaper, that could have to the old workers that hardly suggested they would be reinstated to their former The sum positions. these facts would have had a “effect inevitably negative on Mag- of rehire.” employees’ expectations See Aircraft nesium, at 1346. See also Radiant Fash- R. B., N. L. ions, Inc., 202 N. L. R. B. 938, 940 (1973). The former em- ployees engaged by petitioner found that the new plant was and that there would smaller, workers, be fewer fewer shifts, and more hours shift per than at their prior job. Moreover, as did not acquire rec- Sterlingwale’s personnel ords, benefits of a favorable having work record presum- were lost to these ably employees. to the NLRB’s deferring decision, the Court ex- today
tends the doctrine in a successorship manner that could not have been either the anticipated by or the employ- I ees. would hold that doctrine has no successorship in application when break continuity between enterprises is as complete extensive as it was here.
( I—I —I
if
Even
the evidence of genuine
were substan-
continuity
I
tial,
could not
agree
Court’s decision. As we have
if
noted
past,
presumption of
majority support
a union is to survive a
change
it must be
ownership,
shown
and therе
that
is both a
continuity
conditions
continuity
Employees,
force. Howard
Johnson Co. v. Hotel
work
(1974).
417 U. S.
This-means that unless a of the new
workers had been
the for-
company’s
employed by
mer
there is no
company,
justification for
assuming
the new
wish to be
the former
represented by
Spruce Up Corp.,
union, or
union at all.
by any
See
(CA4
L.
B.
(1974), enf’d,
N.
R.
The Court that when acknowledges petitioner completed of its work force in employment anticipated April 1983, less than of its 50% had employees formerly worked for It Sterlingwale. nevertheless finds that the new company violated its duty bargain, because at an earlier date chosen by Board, majority of the work force had formerly worked for Sterlingwale. NLRB concluded that even in was still of though petitioner process hiring employees, the middle of it by January had hired a “substantial and rep- resentative when its first complement,” shift was adequately staffed and most job categories had been filled.
In my view, the Board’s decision to measure the compo- sition of work petitioner’s force mid-January is unsupport- able. The substantial and representative complement test can a useful role serve when the hiring process is or sporadic, the future of the expansion work force is speculative. But as NLRB v. Burns International Secu- Court recognized rity Services, Inc., in some cases “it not be may clear until the successor has hired his full complement of employ- ees that he has a duty union, with a since it will not be evident until then that the bargaining representative rep- resents a of the majority the unit.” 406 employees S.,U. Indeed, where is feasible to wait and examine the full it was complement here —it is fairer to clearly both em- —as to do so. The ployer substantial complement no more than an estimate test provides percentage from the old company eventually will be part imperfect the new and thus often business, will be an meas- continuing support. relying ure of union The risks of on such complement” an estimate are If obvious. the “substantial by particular dispro- examined the Board at a time contains a portionate company, number of workers from the old the re- might deprived sult either be that the full work force is representation majority required union that a or favors, accept representation that a does not want. Ac- cordingly, delay uncertainty expansion unless the or of future employees’ legitimate early would frustrate the interest representation situаtion not shown to exist here—there is —a every anticipated reason to wait until the full work force has employed. been
In measuring this case the date chosen the NLRB for complement unsupportable, the substantial standard is prior the Court’s affirmance of this choice, curious. deci- only sions, courts and the Board have looked not to the num- *29 positions particular ber of workers hired and filled on a date, expected elapse substantially but also to “the time before a larger complement would be at work ... as well as the rela- certainty employer’s expected expansion.” tive Pre- (CA9 1983). Foods, mium Inc. NLRB, v. 709 F. 2d 628 Hospital, See also (1982). Inc., St. John God 260 N. L. R. B. 905 of anticipated expansion Here the was both imminent reasonably January definite. The record shows that petitioner expected subsequently both to, and fact did, significant employees hire a number of new to staff its second Although growth shift. the Court finds that the of the work “contingent” force was on business conditions, neither finding.7 they ALJ nor the NLRB made such a In fact, both by January already begun noted that 15, the second shift had (“In operations. limited See 272 B., N. L. R. 839, n. 7The evidence industry, shows that the textile two shifts are neces sary (CA1 1985). proper finishing work. See 775 F. 2d See App. Thus, also 227. it in mid-January petitioner was clear that would need more in the immediate future. operation mid-January [petitioner] in full had one shift shift”); id., fact, at 840. less than started a second had peti- duty bargain allegedly arose, months after the three mid-January nearly of its work doubled the size tioner had remaining hiring by it needed to 50-odd workers force unexpected; expansion production. not This was full reach original closely petitioner’s forecast for tracked instead, during growth Thus there first few months business.8 its mid-January selecting the time as reasonable basis for was no that it should commence have known that should bargaining.9 complement rule re- the substantial notes,
As the Court objective insuring “the maximum need to balance flects the bargaining agent participation employee in the of a selection represented goal permitting against to be (citations quickly possible.” and internal Ante, at as as operations president vice testified: Petitioner’s employees. operation shift of 56 to 60 planned to have a full one “We be, see how business would goal, reached that and then we’d And after we March, by April, we should planned that the end of [sic] and then we’d had expected production.” App. operation up to our in full two shift be during period conditions this were such no evidence that business There is changing hiring goal. company considered complement par standard is reliance on the substantial The NLRB’s facts, the evidence shows that the “sub ticularly puzzling on these since truly “represent Board was not complement examined stantial” prаctice hearing was held the unfair labor ative” of the work force. When complement 2, 1983, petitioner already had hired a full of workers. May on workers, employed less than half of company 106-109 point At that rely ac *30 Sterlingwale employees. Rather than on this former whom were force, the looked back composition the of the work ALJ curate measure of petitioner acted January, concluded that should have the to middle the workers who differently appeared at the time that most of because by ex-Sterlingwale represented the union would be eventually would be words, the Board ruled that violated employees. In other January estimate in that the it failed to make the same NLRA because proved May already had to be erroneous at estimate that ALJ made —an it. the time that the ALJ made omitted). quotation today marks The decision “balances” by overprotecting ignoring these interests the latter and former. an effort to that ensure some will not representation deprived be time, even short requires petitioner recognize Court a union that has never accepted by majority been elected or of its workers. For I stated, the reasons think Court’s decision is unfair petitioner, hardly anticipated both to who could have petitioner’s employ- date chosen Board, and most of opportunity were ees, who denied the choose their union. I dissent.