1 - National Labor Relations Board

Enforcement Litigation 147
were not required to bargain with the unions which had represented
the former employees. It agreed that the mere fact that a
majority of the new employees hired by the dealers were not members
of the old bargaining unit was not controlling, since the purchaser
of a business could not avoid application of the successorship
principle simply by refusing to hire the seller's employees.
Here, however, the hiring of new employees was clearly based on
nondiscriminatory considerations, and there were considerable
changes in operational structure, organization management, and
the relationship of the two retail outlets to each other, to the
manufacturer, and to the public. Under the prior factory management,
both retail outlets were covered by a single contract which
provided the same wages, grievance procedures, and other benefits
and a common seniority list of all employees at both branches,
and transferability of seniority and vacation and holiday pay at
all of the manufacturer's plants. Under the independent dealers,
no common seniority was feasible, and no transfers from one
establishment to the other, or to another operation of the manufacturer,
were available. Each dealer brought in new supervisors,
and each was free to fix wages and working conditions, subject
only to the normal competition for skilled service personnel in
the local labor market. Management, accounting, and advertising,
formerly centrally controlled, were now totally separate and
independent. While directly operated by the manufacturer, the
outlets did not compete aggressively with other dealers franchised
by the manufacturer, whereas under the independent dealers, they
were in direct competition for sales and service with each other
and with all other dealers, including those franchised by the
same manufacturer. In the court's opinion, these changes in operational
format, and the nondiscriminatory personnel turnover,
negated a finding of successorship and overcame the presumption
that the union's majority status continued. To require the dealers
to bargain with the union under these circumstances would, in
the court's view, have deprived their new employees of their
right, guaranteed by section 7 of the Act, to be represented by a
bargaining agent of their own choice.
4. Discrimination Caused by Union
Several decisions by courts of appeals during the year involved
contentions that unions had violated section 8 (b) (2) of the Act,
which makes it unlawful for a union "to cause or attempt to
cause an employer to discriminate against an employee in violation
of section 8(a) (3)." In one, a company whose employees