FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS
David Cantor, Counsel, with whom Kira Dellinger Vol,
Supervising Attorney, Richard F. Griffin, Jr., General
Counsel, Jennifer Abruzzo, Deputy General Counsel, John H.
Ferguson, Associate General Counsel, and Linda Dreeben,
Deputy Associate General Counsel, were on brief, for
Hodge, with whom Alan S. Miller, Katherine D. Clark, and
Stoneman, Chandler & Miller LLP were on brief, for
Kayatta, Circuit Judge, Souter, Associate Justice,
and Selya, Circuit Judge.
SOUTER, Associate Justice.
National Labor Relations Board applies for enforcement of its
bargaining order against Lily Transportation Corporation. We
grant the application.
Express, Incorporated, carried automotive parts from
warehouses in Mansfield, Massachusetts, to Toyota and
Chrysler dealerships in the region. Pumpernickel's
drivers were represented by the International Association of
Machinists and Aerospace Workers, AFL-CIO, District Lodge 15,
October 2013, Pumpernickel filed for bankruptcy, and Lily
subsequently obtained the portion of Pumpernickel's
business that involved distributing parts for Toyota. Lily
hired many of Pumpernickel's former employees, including
drivers, and began operations in November 2013. The Union
promptly demanded that Lily recognize it as the drivers'
bargaining representative, but Lily refused. Lily later
produced signed statements it allegedly had received from a
majority of the drivers saying that they no longer wished to
be represented by the Union.
Union filed an unfair labor practice charge with the National
Labor Relations Board, claiming that Lily's refusal to
bargain violated Sections 8(a)(1) and 8(a)(5) of the National
Labor Relations Act. After a hearing, the Administrative Law
Judge found that in distributing for Toyota, Lily was a
"successor employer" to Pumpernickel, that is, an
employer who "makes a conscious decision to maintain
generally the same business and to hire a majority of its
employees from the predecessor, " Fall River Dyeing
& Finishing Corp. v. NLRB, 482 U.S. 27, 41 (1987);
accord Asseo v. Centro Médico Del Turabo,
Inc., 900 F.2d 445, 450-51 (1st Cir. 1990). The Judge
held that Lily, as a successor, was required under Fall
River to recognize and bargain with the Union, and
rejected Lily's position that its refusal to bargain
about terms of employment in the affected unit was justified
by the signed employee statements of repudiation. Rather, the
Judge explained, under the "successor bar doctrine,
" as adopted by the Board in UGL-UNICCO Service
Co., 357 N.L.R.B. 801 (2011), an incumbent union is
entitled to represent a successor employer's employees
for a reasonable period of time for bargaining before its
majority status may be questioned.
Board affirmed, agreeing with the Administrative Law Judge
that insofar as Lily was a successor employer, it was
obligated to bargain with the Union, and that UGL
barred Lily from challenging the Union's majority status
until a reasonable period of time for bargaining had elapsed.
The Board accordingly ordered Lily to recognize and bargain
with the Union.
Board now asks this Court to enforce its order over
Lily's objection. Lily submits that the Board erred in
relying on UGL's successor bar doctrine and that
we should instead substitute only a rebuttable presumption of
majority union support under the rule of MV
Transportation, 337 N.L.R.B. 770 (2002), of the kind the
Board adopted and enforced prior to its rejection in
UGL. Lily also says that it has rebutted that
presumption with its documentary evidence that a majority of
the affected drivers no longer support the Union.
objection to the successor bar implicates some doctrinal
history. The National Labor Relations Act provides neither
bar nor presumption to address the unstable labor climate
that can develop in successor employment, a silence the Board
has seen as leaving a statutory gap needing to be filled. In
1999, it adopted a successor bar partially resembling its
present iteration, in St. Elizabeth Manor, Inc., 329
N.L.R.B. 341 (1999). There, the Board held that "once a
successor employer's obligation to recognize an incumbent
union attaches [under Fall River], the union is
entitled to a reasonable period of time for bargaining
without challenge to its majority status." Id.
at 341. The Board recognized that it was overruling its
previous decision of some twenty-four years earlier in
Southern Moldings, Inc., 219 N.L.R.B. 119 ...