United Steelworkers of America v. UNITED STATES GYPSUM COMPANY

• Decision Date: 31 July 1974
• Docket Number: No. 72-2694.,72-2694.
• Parties: UNITED STEELWORKERS OF AMERICA, AFL-CIO, Plaintiff-Appellant-Cross Appellee, v. UNITED STATES GYPSUM COMPANY, Defendant-Appellee-Cross Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

498 F.2d 334 (1974)

UNITED STEELWORKERS OF AMERICA, AFL-CIO, Plaintiff-Appellant-Cross Appellee, v. UNITED STATES GYPSUM COMPANY, Defendant-Appellee-Cross Appellant.

No. 72-2694.

United States Court of Appeals, Fifth Circuit.

July 31, 1974.

Jerome A. Cooper, Birmingham, Ala., Bernard Kleiman, Gen. Counsel, Pittsburgh, Pa., Michael H. Gottesman, Jeffrey Gibbs, Washington, D. C., for plaintiff-appellant.

J. S. Gruggel, Jr., John J. Coleman, Jr., Birmingham, Ala., Harold D. Burgess, J. T. Otis, Chicago, Ill., for defendant-appellee.

Before BELL, INGRAHAM and RONEY, Circuit Judges.

ON PETITION FOR REHEARING

(Opinion April 11, 1974, 5 Cir., 1974, 492 F.2d 713).

PER CURIAM:

We are aware of the Supreme Court's recent decision in Howard Johnson Co., Inc. v. Detroit Loc. Jt. Exec. Bd., ___ U.S. ___, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974), overruling the Sixth Circuit's decision, 482 F.2d 489 (1973), that Howard Johnson, as a successor employer, was bound to arbitrate with the union concerning the extent of its obligations to its predecessor's employees. Concluding that "there was plainly no substantial continuity of identity in the work force hired by Howard Johnson," ___ U.S. at ___, 94 S.Ct. at 2244, the Court held that Howard Johnson had no duty to arbitrate with the union. But, as we emphasize in our opinion, there was a substantial continuity of identity present in the case at bar. 492 F.2d at 716, 726. In short, we believe that the principles of Wiley remain viable in the circumstances of our case.

The petition for rehearing is in all respects denied.