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

concurring in part and dissenting in part:

I concur in Part I of the court’s opinion, granting summary enforcement to the National Labor Relations Board’s (“Board”) order of prospective relief to redress Advanced Stretchforming International, Inc.’s (“ASI”) violations of the National Labor Relations Act (“NLRA”).

I must respectfully dissent, however, from Parts II and III. In my view, the Board’s award of back pay under the terms of the collective bargaining agreement of ASI’s predecessor violates the holding of NLRB v. Burns Int’l Security Services, Inc., 406 U.S. 272 , 92 S.Ct. 1571 , 32 L.Ed.2d 61 (1972). This award does nothing to redress ASI’s actual violations and does not restore the status quo ante. It constitutes a penalty well in excess of the Board’s legal authority. In holding that this award is presumptively appropriate, the majority opinion misconstrues and misapplies the so-called “forfeiture doctrine,” transforming it into a broad new exception capable of swallowing the rule set forth in Bums that a successor employer is not bound by its predecessor’s collective bargaining agreement and is ordinarily free to set the initial terms of employment unilaterally. By…

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

ORDER

Both Advanced Stretchforming International, Inc. (“ASI”) and the National Labor Relations Board (the “Board”) filed petitions for rehearing and rehearing en banc. The panel requested a response to these petitions and that response was filed and circulated to panel members and to all active judges. A judge of the court called for a vote on whether the case should be reheard en banc, but voting was suspended on the panel’s indication that its opinion would be amended.

By unanimous vote, the panel hereby GRANTS ASI’s petition for rehearing and GRANTS the Board’s petition for rehearing. Accordingly, the original opinions filed on April 4, 2000 as NLRB v. Advanced Stretchforming Int’l, Inc., 208 F.3d 801 (9th Cir.2000), are hereby AMENDED.

OPINION

We decide whether a successor employer forfeits its unilateral right to set initial terms of employment when it announces to the former employees of its unionized predecessor that there will be no union at the new company should they apply to work there.

I

Advanced Stretchforming International, Inc., (“ASI”) manufactures structural body components used in the aerospace…