1. 1 Fall River Bargaining obligation incurred by successor when there is a “rebuttable presumption” of union majority status Successorship determined by “substantial continuity” doctrine –same business, jobs, working conditions, production process, products, customers –totality of circumstances –ee perspective Bargaining obligation incurred if predecessor’s ees a majority of “substantial and representative complement” of successor’s ees

2. 2 Fall River (cont.) accepts “continuing bargaining demand” rule –once union makes a bargaining demand, it is maintained, even if it is initially made before “substantial and representative complement” hired

3. 3 Dissent No successorship; no “substantial continuity” Employer Perspective –Break in continuity 6 months between Sterlingwale demise and Fall River establishment 9 months between Sterlingwale demise and Fall River production startup –No business relationship between Sterlingwale and Fall River –Attraction of customers on its own and not due to Sterlingwale Employee Perspective –Sterlingwale ees expected no further empl. with co. –Expiration of CBA –Fall River advertised for new workers –No continuity of workforce to presume maj. status

4. 4 Recognition Before Hiring Legal “Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms.” (NLRB v. Burns Sec. Svs., 1972, 406 U.S. 272, 294-95). Road and Rail Services, 348 NLRB No. 77, 11/30/06 –Where it is“perfectly clear” employer is a successor er announces intention to hire predecessor’s employees er does not invoke right to unilaterally set TCE –ees will accept employment –Er does not violate 8(a)(2) by recognizing union

5. Successorship and Alter Ego Cadillac Asphalt Paving Co. and its alter ego or successor Cadillac Asphalt, L.L.C.(7-CA-46464; 349 NLRB No. 5) Novi, MI Jan. 16, 2007. 5