Operations In Fiscal Year 1988 - National Labor Relations Board

146 Fifty-Third Annual Report of the National Labor Relations Boardpeace. The Board also deemed it fair that a company purposelypreserving the corporate form to obtain tax benefits also acceptthe labor law consequences of that decision. In enforcing the decision,the court noted that the business remained unchanged andheld that the change in corporate ownership, without more, didnot relieve the new owner of its obligations under the collectivebargainingagreement. The court rejected the employer's assertionthat it was a Burns successor," and therefore not bound bythe agreement because the same corporation remained the employingentity with operations uninterrupted and unchanged.3. Effect of Passage of Time on Validity of Bargaining OrderIn two cases arising in the Second Circuit, employers contendedthat, even if the Board's fmdings of 8(a)(5) violations wereproper, the Board's issuance of bargaining orders was inappropriatein view of the lengthy passage of time since any determinationof the unions' majority status. In NLRB v. Einhorn Enterprises,"a hearing on election objections and challenged ballotswas held before an administrative law judge. Three years afterthe administrative law judge's decision and 5 years after the election,the Board certified the victorious union. The employer refusedto bargain, contending that the passage of time and thehigh turnover of employees in the bargaining unit cast doubt onthe union's majority status. The court, although criticizing theBoard's "dilatory approach to its statutory responsibilities""egregious administrative delay" and "inexcusably slow processes,"enforced the Board's Order. Id. at 1508-1510. It noted that acertified union, absent unusual circumstances, enjoys an irrebuttablepresumption of majority status for 1 year following the certification,and that apparent loss of majority status and delay incertification do not normally constitute unusual circumstances.The court referred to its prior holding in NLRB v. Patent Trader,Inc., 35 that it was error to refuse enforcement of a bargainingorder on the basis of passage of time and employee repudiationof the uriion "when it is conceded that there has been a Boardelection, the [u]nion was duly certified, and the [employer] thereafterrefused to bargain in good faith" because requiring anotherelection in such circumstances "undermines the central purposeof the. . . Act" by giving an employer an incentive to disregardits duty to bargain in the hope that over a period of time theunion will lose its majority status. Id. at 1509. The court foundthis case indistinguishable from Patent Trader and distinguishablefrom cases in which it had denied enforcement of bargainingorders when no election had been held, the union had lost theelection, or there had been no reliable determination of the validityof the election because the Board had erroneously failed to"NLRB v. Burns Security Services, 406 U.S. 272 (1972)."843 F.2d 1507 (2d Cir.)."426 F.2d 791 (2d Cir. 1970) (en banc).