Tom-A-Hawk Transit, Inc. v. NLRB, 17450.
| Decision Date | 19 December 1969 |
| Docket Number | No. 17450.,17450. |
| Citation | 419 F.2d 1025 |
| Parties | TOM-A-HAWK TRANSIT, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph H. Barnett, Gary K. Mickey, Aurora, Ill., for petitioner; O'Brien, Burnell, Puckett & Barnett, Aurora, Ill., of counsel.
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, William F. Wachter, Susan J. Sherman, Attys., National Labor Relations Board, Washington, D. C., for respondent.
Before SWYGERT and FAIRCHILD, Circuit Judges, and WILL,1 District Judge.
This is a petition for review filed by Tom-A-Hawk Transit, Inc. challenging the Board's finding that the company violated sections 8(a) (5) and 8(a) (1) of the National Labor Relations Act. The question for decision is whether Tom-A-Hawk is a successor of Aurora City Lines and thereby obligated to bargain with Division 215 of the Amalgamated Transit Union.
For more than thirty years Aurora City Lines, acting under the authorization of the Illinois Commerce Commission, provided municipal bus service for the city of Aurora, Illinois. During that time Division 215 of the Amalgamated Transit Union was the bargaining representative of the employees of Aurora City Lines and had negotiated collective bargaining contracts with the company. The last contract expired December 31, 1967, but the employees continued to work beyond that date without a formal written contract.
For many years Aurora City Lines had not operated profitably and by late 1967 it became common knowledge in Aurora that the company would soon be forced to cease operations. With the apparent impending financial collapse of Aurora City Lines in mind, Tom-A-Hawk was incorporated in December 1967 to take over the municipal bus service in Aurora when Aurora City Lines discontinued operations. (The owners of Tom-A-Hawk had operated a charter bus service in Aurora since 1962.) After its incorporation, Tom-A-Hawk entered into a contract with the city of Aurora to operate a municipal bus service in and about the city. The contract provided that Tom-A-Hawk start operations on February 1, 1968 and temporarily maintain the routes previously used by Aurora City Lines. On January 31, 1968 Aurora City Lines discontinued its service and Tom-A-Hawk commenced its operations on the next day.
With knowledge of the planned substitution of Tom-A-Hawk for Aurora City Lines, the union, in mid-January 1968, demanded that the newly-formed company recognize it as the bargaining representative for its employees and commence bargaining over a new contract. Tom-A-Hawk refused. Thereafter the general counsel of the Board filed a complaint charging Tom-A-Hawk with unfair labor practices. Following a hearing and a decision by the trial examiner, the Board found the company guilty of violating sections 8(a) (5) and 8(a) (1) of the Act and issued an order requiring Tom-A-Hawk to bargain with the union.2 The company thereafter petitioned this court to review the Board's decision and set aside its order.
We hold that the Board properly determined Tom-A-Hawk was a successor of Aurora City Lines and therefore was obligated to recognize and bargain with the union.
It is a settled principle that when employees have bargained collectively with an employer and there occurs a change of ownership not affecting the essential nature of the enterprise, the successor employer must recognize the incumbent union and deal with it as the bargaining representative. E. g., NLRB v. Armato, 199 F.2d 800 (7th Cir. 1952); Overnite Transportation Co. v. NLRB, 372 F.2d 765 (4th Cir. 1967); NLRB v. McFarland, 306 F.2d 219 (10th Cir. 1962). Since the purpose of the Act is to avoid industrial strife, the focus in representation questions is on the employing industry encompassed by the enterprise rather than on the employer. As the Sixth Circuit stated in NLRB v. Colten, 105 F.2d 179, 183 (1939):
It is the employing industry that is sought to be regulated and brought within the corrective and remedial provisions of the Act in the interest of industrial peace. * * * It needs no demonstration that the strife which is sought to be averted is no less an object of legislative solicitude when contract, death, or operation of law brings about change of ownership in the employing agency.
In situations such as the instant case, we must inquire whether the employing industry has retained its identity and continuity to a degree sufficient to make it reasonable that the successor employer be required to recognize the incumbent union. International Chemical Workers Union v. NLRB, 129 U.S.App.D.C. 416, 395 F.2d 639 (1968).
When it became apparent that Aurora City Lines would discontinue its operations, the city negotiated with Tom-A-Hawk for the express purpose of continuing the public transportation service which Aurora City Lines had been furnishing. An...
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