Bartenders and Culinary Workers Union, Local 340 v. Howard Johnson Company

The Union appeals from the dismissal of its action under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 , for specific performance and damages for breach of a collective bargaining agreement by Howard Johnson Company.

The Union and the San Mateo County Restaurant Hotel Owners Association, acting on behalf of its member employers, entered into the collective bargaining agreement on January 1, 1970. Among the members of the Association was the Pacific Gulf Development Corporation, which owned and operated the Howard Johnson’s Motor Lodge in Redwood City, California, pursuant to a license agreement with the appellee Company. The collective bargaining agreement contained a “successorship clause,” providing that during the life of the agreement all of its terms would be “binding upon the parties hereto and their successors, transferees, lessees, or assigns.” The agreement was effective for a period of four years, until December 31, 1973.

In the fall of 1970 the Company and Pacific Gulf agreed to cancel the license arrangement for Motor Lodge. The Company subleased the lodge and purchased the furniture, fixtures, and equipment from Pacific Gulf and assumed…

(concurring in result):

I agree that the only issue before us is whether we should impose upon Howard Johnson Company the terms of the collective bargaining agreement of which the Union seeks specific performance. I also agree that we should not so impose these terms. The Company is not a successor employer for this purpose under the reasoning of NLRB v. Burns Security Services, 406 U.S. 272 , 92 S.Ct. 1571 , 32 L.Ed.2d 61 (1972).

This is enough to decide the case. It is unnecessary to suggest that the obligation to arbitrate survives by reason of John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 , 84 S.Ct. 909 , 11 L.Ed.2d 898 (1964). If required to express such an opinion, I would find Howard Johnson Co. v. Hotel Employees, 417 U.S. 249 , 94 S.Ct. 2236 , 41 L.Ed.2d 46 (1974), highly persuasive. In any event, there appears to me no reason to discuss the conceptual difficulties of imposing a duty to arbitrate while not imposing on the alleged successor all the obligations of the collective bargaining agreement.

*1165 Whether an employer is a “successor” varies with the context in which the issue arises. For example, a failure of the duty to arbitrate to survive, however, need…

535 F.2d 1160 92 L.R.R.M. (BNA) 2525 , 78 Lab.Cas. P 11,426 BARTENDERS AND CULINARY WORKERS UNION, LOCAL 340, Plaintiff-Appellant, v. HOWARD JOHNSON COMPANY et al., Defendants-Appellees. Nos. 71-2854, 71-2855. United States Court of Appeals, Ninth Circuit. April 30, 1976. Rehearing Denied May 20, 1976. Donald C. Carroll (argued), San Francisco, Cal., for plaintiff-appellant. Nathan R. Berke (argued), San Francisco, Cal., for defendants-appellees. OPINION Before BROWNING, WALLACE and SNEED, Circuit Judges. BROWNING, Circuit Judge: 1 The Union appeals from the dismissal of its action under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 , for specific performance and damages for breach of a collective bargaining agreement by Howard Johnson Company. 2 The Union and the San Mateo County Restaurant Hotel Owners Association, acting on behalf of its member employers, entered into the collective bargaining agreement on January 1, 1970. Among the members of the Association was the Pacific Gulf Development Corporation, which owned and operated the Howard Johnson's Motor Lodge in Redwood City, California, pursuant to a license agreement with the appellee Company. The…