National Labor Relations Board v. Advanced Stretch Forming International, Inc.

208 F.3d 801
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 4, 2000
Docket97-71047
StatusPublished

This text of 208 F.3d 801 (National Labor Relations Board v. Advanced Stretch Forming International, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Advanced Stretch Forming International, Inc., 208 F.3d 801 (9th Cir. 2000).

Opinion

208 F.3d 801 (9th Cir. 2000)

NATIONAL LABOR RELATIONS BOARD, Petitioner,
and
INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), AMALGAMATED LOCAL UNION No.509, AFL-CIO, Petitioner-Intervenor,
v.
ADVANCED STRETCH FORMING INTERNATIONAL, INC.,Respondent.

No. 97-71047

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 13, 1999
Filed April 4, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted]

COUNSEL: Sharon I. Block, National Labor Relations Board, Washington, D.C., for the petitioner.

Henry M. Willis, Schwartz, Steinsapir, Dohrmann & Sommers, Los Angeles, California, for the petitioner-intervenor.

Larry Walraven, O'Melveny & Myers, Newport Beach, California, for the respondent.

On Application for Enforcement of an Order of the National Labor Relations Board

Before: Robert Boochever, Diarmuid F. O'Scannlain and A. Wallace Tashima, Circuit Judges.

Opinion by Judge Boochever;

Dissent by Judge O'Scannlain

BOOCHEVER, Circuit Judge:

We decide whether a successor employer has a duty to bargain with an incumbent union before unilaterally imposing terms when the employer hires its initial workforce from the ranks of a represented bargaining unit of its predecessor.

* Advanced Stretchforming International, Inc., ("ASI") manufactures structural body components used in the aerospace industry at a facility in Gardena, California. Prior to ASI's tenure, Aero Stretch, Inc. ("Aero") engaged in the same operations at the same site. Aero and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local No. 509 ("UAW" or "Union") entered into a collective bargaining agreement ("CBA") for production and maintenance employees effective August 19, 1991 through August 19, 1994.

On June 11, 1992, Aero filed for bankruptcy under Chapter 11 of the Bankruptcy Act. Aero continued to operate, but gradually laid off employees. UAW representative Duane LaMothe contacted Aero's management over the ensuing months to check on Aero's bankruptcy status. At a November 19, 1992, hearing, the bankruptcy court converted Aero's bankruptcy to a Chapter 7 case and auctioned its assets.

Stephen Brown submitted the successful bid. As a condition of the sale, the bankruptcy judge ordered Aero to cease operations and to terminate all employees by November 30. On November 30, Brown called Aero's Manufacturing Director, Eric Cunningham, and told him to inform Aero employees that they could report to the plant the next day to interview for positions with ASI, which Brown incorporated on December 1. Cunningham called a meeting of Aero's employees and informed them that the plant had been purchased, and that all employees would be terminated at the end of the day, but that they should report to the plant the next day to interview for positions if they were interested in working for ASI. Two employees present at the meeting, and LaMo the, who was also present at the meeting, testified that Cunningham told the employees that there would be "no union, no seniority, no nothing" at ASI. Cunningham denied making such a statement, but testified that at some point he told the employees that ASI would not assume Aero's CBA.

On December 1, Brown interviewed and hired Cunningham as ASI's general manager. Brown and Cunningham then interviewed Aero's former employees who came to the plant that day. Brown required each applicant to sign the following statement:

I UNDERSTAND THAT I WILL BE WORKING UNDER NEW TERMS AND CONDITIONS WHICH IS NOT A CONTRACT AND IS SUBJECT TO CHANGE.

NEW COMPANY IS NOT ASSUMING COLLECTIVE BARGAINING AGREEMENT.

YOU MAY BE EMPLOYED BY NEW COMPANY ON AN AT WILL BASIS.

DETAILED LIST OF TERMS AND CONDITIONS IS TO FOLLOW.

During the interviews, Brown informed each applicant that the new terms of employment would include different wages, no 401(k) plan, less vacation time, fewer holidays, no medical or dental benefits and at-will employment.

ASI hired eight of the seventeen former Aero production and maintenance employees. Four were hired at Aero's hourly rate; two received more and two received less.

UAW sent certified letters to ASI on December 3, 7, and 11, demanding that ASI recognize the Union as its employees' bargaining representative. UAW filed an unfair labor practice charge against ASI on December 11. On December 14, ASI conducted a poll of its employees regarding their desire for continued union representation. The employees voted against union representation. That same day, ASI's counsel wrote the union a letter advising that ASI did not recognize the UAW as the representative of its employees. On April 30, 1993, the National Labor Relations Board ("NLRB" or "Board") issued a complaint and notice of hearing against ASI.

After conducting a hearing, an Administrative Law Judge ("ALJ") found that ASI had violated sections 8(a)(1) and (5) of the National Labor Relations Act ("NLRA") by (1) making the "no union" statement at the November 30 meeting, (2) improperly polling its employees regarding union representation on December 14, and (3) refusing to recognize and to bargain with UAW, as ASI was required to do as an alleged "successor" employer to Aero. The ALJ, however, rejected the General Counsel's claim that ASI had further violated the NLRA by setting the initial terms of employment on December 1. The ALJ reasoned that under NLRB v. Burns Int'l Sec. Servs., Inc., 406 U.S. 272 (1972), ASI had the right to establish initial employment terms when it hired Aero's former employees.

The NLRB's General Counsel appealed the ALJ's decision that ASI did not violate the NLRA by setting the initial hiring terms, and the Board reversed. The Board reasoned that ASI had forfeited its right to set the initial terms of employment because "it unlawfully blocked the process by which the obligations and rights" of a successor are incurred when it made the "no union" statement. Advanced Stretchforming Int'l, 323 N.L.R.B. 529, 531 (1997). Thus, the Board held that ASI unlawfully and unilaterally changed the employment terms without first bargaining with the union. Id.

Based on its conclusions, the Board adopted the ALJ's recommended order, but added to it, directing ASI,"in order to remedy [the] unlawful unilateral changes," to rescind any changes in employees' terms and conditions of employment unilaterally effectuated and to make the employees whole by remitting all wages and benefits that would have been paid absent [ASI's] unlawful conduct, until [ASI] negotiates in good faith with the Union to agreement or impasse.

Id.

The Board timely applied to this court for enforcement of its order.

II

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Securities & Exchange Commission v. Chenery Corp.
318 U.S. 80 (Supreme Court, 1943)
Securities & Exchange Commission v. Chenery Corp.
332 U.S. 194 (Supreme Court, 1947)
National Labor Relations Board v. Wyman-Gordon Co.
394 U.S. 759 (Supreme Court, 1969)
Bell v. New Jersey
461 U.S. 773 (Supreme Court, 1983)
Canteen Corporation v. National Labor Relations Board
103 F.3d 1355 (Seventh Circuit, 1997)
Milk Transport, Inc. v. Interstate Commerce Commission
190 F. Supp. 350 (D. Minnesota, 1960)

Cite This Page — Counsel Stack

Bluebook (online)
208 F.3d 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-advanced-stretch-forming-international-ca9-2000.