National Labor Relations Board v. Advanced Stretchforming International, Inc.

Opinion by Judge BOOCHEVER; Dissent by Judge O’SCANNLAIN.

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.

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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 bankrupt *805 cy court converted Aero’s…

dissenting:

The court’s opinion frames the issue before us as “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 its predecessor.” Supra at 804. With respect, I suggest it.is the wrong question. Worse yet, the majority compounds the error by giving the wrong answer to that question.

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The National Labor Relations Board (“NLRB” or “Board”) has applied to this court for the enforcement of its order, which declares in- part that Advanced Stretchforming International (“ASI”) violated the National Labor Relations Act (the “Act”) by “unilaterally changing wages and benefits” without first bargaining with the union that had previously represented the individuals whom ASI ultimately hired. The Board based this element of its order on its conclusion that ASI had “forfeited” its othenvise ungues- *812 tioned right to set the initial terms and conditions of employment by peremptorily and impermissibly stating that there would be “no union” at its workplace. Naturally, the Board urges the enforcement of its order on this score; ASI is opposed. The majority agrees…