NATIONAL LABOR RELATIONS BOARD, Petitioner, v. GERONIMO SERVICE COMPANY, Respondent

United States Court of Appeals for the Tenth Circuit1972-10-10No. No. 71-1736

467 F.2d 903

Summary · law.co

Holding. The court enforced the Board's order requiring Gerónimo to bargain with the certified union. A successor employer must recognize and bargain with a union that certified the predecessor's employees, even when the successor assumes only part of the predecessor's business operations, provided the union's certification remains valid.

The National Labor Relations Board sought enforcement of an order directing Gerónimo Service Company to bargain with a union that had been certified as the exclusive representative of employees at a military base service operation. Gerónimo had taken over a service contract previously held by United Service Corporation, which employed workers under two separate Air Force contracts. The Board determined that Gerónimo was a successor employer obligated to recognize and bargain with the union, based on findings that the business operations continued substantially and a majority of United's employees were hired by Gerónimo.

Gerónimo argued that successorship should not apply because it had assumed only one of United's two contracts (maintenance) and not the other (refuse collection). Gerónimo contended that without knowing whether the specific employees it hired had voted for the union, there was no basis to assume the bargaining unit remained appropriate. The court rejected this argument, holding that a successor employer inherits the union status of its employees regardless of the particular composition of contracts or uncertainty about individual employee preferences, so long as the union's certification remains valid.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

When does an employer qualify as a successor obligated to recognize a union certification
Whether loss of one contract and retention of another defeats successorship status
Validity of successor employer arguments based on uncertainty about individual employee union support

Procedural posture

The National Labor Relations Board petitioned a court of appeals for enforcement of a Board order requiring recognition and bargaining, which the respondent employer opposed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

PER CURIAM.

The National Labor Relations Board seeks and the employer Gerónimo resists enforcement of a Board order issued June 23, 1971, requiring Gerónimo as the successor employer to United Service Corporation (United) to bargain with the union which had been certified after a representation election as the exclusive bargaining agent of all United’s employees in an appropriate unit. Such certification was made March 20, 1970, about three months prior to the asserted take-over by Gerónimo from United. The Board decision is reported at 191 NLRB No. 88. Geronimo’s refusal to bargain is admitted and constitutes a violation of Section 8(a)(5) and (1) of the National Labor Relations Act if the Board correctly determined that Geróni-mo was the successor to United within the purview of the Act.

The parties are in agreement that two prime factors must be probed in the determination of whether successorship is established, correctly stating that the employing industry must continue as essentially the same and the successor employer must continue with its predecessor’s employees substantially appropriated. As indicated in its decision, supra, the Board found that the employing industry did continue with a majority of United’s employees being employed by Gerónimo. Both Board determinations are supported by the record and we would summarily affirm were it not for Geronimo’s contentions that a different result must be reached because the circumstances of this case are such as to negative any assumption that an appropriate bargaining unit continued which must be respected by Gerónimo.

In establishing the union as a bargaining agent for United the Board designated the appropriate unit to be

All employees of the Employer at Hol-loman Air Force Base, New Mexico, excluding professional employees, guards and supervisors as defined in the Act.

At the time of certification United had two contracts with the Air Force at Holloman, one for painting maintenance and one for refuse collection. At the representation election fifty-four United employees were eligible to vote; forty-eight did vote, twenty-five favoring the union, nineteen against and four votes challenged. Of those employees eligible to vote, ten were employed under the refuse collection contract and the remainder under the maintenance contract. Since Gerónimo took over only United’s contract for maintenance and did not succeed to the collection contract, there can be no reasonable assurance or assumption, so says Gerónimo, that the United employees hired by Gerónimo favored or ever did favor the union. This nicety of number analysis is presented to us without authority as to its application to the case at bar and we simply reject it as having no determinative merit. A successor employer taking over union employees takes such employees in that status for so long as the certification remains valid under traditional and established rules. NLRB v. Burns International Security Services, Inc., 406 U.S. 272, 277-281, 92 S.Ct. 1571, 32 L.Ed.2d 61.

The order will be enforced.