National Labor Relations Board v. Burns International Security Services, Inc.

PETITIONER: National Labor Relations Board
RESPONDENT: Burns International Security Services, Inc.
LOCATION: Stanford University

DOCKET NO.: 71-123
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 406 US 272 (1972)
ARGUED: Jan 13, 1972
DECIDED: May 15, 1972

ADVOCATES:
Charles G. Bakaly, Jr. - for Burns International Security Services, Inc
Gordon A. Gregory - for International Union, United Plant Guard Workers of America
Norton J. Come - for National Labor Relations Board

Facts of the case

Question

Media for National Labor Relations Board v. Burns International Security Services, Inc.

Audio Transcription for Oral Argument - January 13, 1972 in National Labor Relations Board v. Burns International Security Services, Inc.

Warren E. Burger:

We will hear arguments next in 71-123, National Labor Relations Board against Burns International and Burns against the Board in Number 198.

Mr. Come you may proceed whenever you are ready.

Norton J. Come:

Mr. Chief Justice and may it please the Court.

This case is here on writs of certiorari to the Second Circuit, presents two questions concerning the extent to which the duty to bargain under the National Labor Relations Act survives a change in employers.

The first question is whether Burns International Protective Agency which took over Wackenhut’s job of furnishing guard services, Lockheed is a successor to Wackenhut for purposes of the National Labor Relations Board and second, if Burns is a successor employer, is it obliged not only to recognize and bargain with the union represented by Wackenhut’s employees or also obliged to honor the collective bargaining agreement which Wackenhut had entered into with the union covering these employees.

Warren E. Burger:

Mr. Come if –- perhaps this question is a little bit too early, but if you will bear in mind now certainly when you want, if Burns have not employed any of the Wackenhut people, they employed 27, I think some such figures, they have not employed any, would you contend they were a successor employer because they moved in and performed the same function?

Norton J. Come:

I would say the fact that they -- well, as I will develop further to continuity of the employing enterprise is the test and among the factors that are very crucial there is the complement of the workforce and had they not employed for nondiscriminatory reasons, the Wackenhut employees, that would be a big factor for holding that they were not a successor.

Whether it would be conclusive or not, I will develop as I get to it.

The basic facts here are these.

From July 1, 1962 to July 1, 1967, Wackenhut, a nationwide guard service provided plant protection services for Lockheed Aircraft Service Corporation, a subsidiary of the Lockheed Aircraft Corporation at its facility at the Ontario Airport in California.

What Lockheed was doing there was serving, was maintaining and repairing planes and Wackenhut was supplying guard service for the Lockheed operation.

On March 8, 1967, the Board certified the United Plant Guard Workers as the exclusive bargaining representative of the Wackenhut employees working at the Lockheed Airport facility.

How about the unit in place?

Norton J. Come:

It was a unit of about 42 employees.

On April 29, 1967, about a month after the certification, Wackenhut and the Union entered into a three-year collective bargaining agreement covering these employees and the collective bargaining agreement among other things contained a clause making the agreement binding on successors and assigns.

Lockheed's then current service contract with Wackenhut was due to expire on June 10, 1967 unless extended by Lockheed.

In May of 1967, Lockheed invited various guard services, including Wackenhut to bid or rebid the job.

On May 15, Lockheed advised the prospective bidders including Burns, that Wackenhut’s guards were represented by the United Plant Guard Workers who had been certified by the Board and that there was an outstanding collective bargaining agreement between Wackenhut and the Union covering those employees.

Although, Wackenhut submitted a bid, the successful bidder was Burns.

In the next moth, June of 1967, Wackenhut or Burns sought to employ when it took over on July 1 as many of the Wackenhut guards as possible for the reason that they had, they cleared security and top security clearance that was needed for this type of work.

The Wackenhut guards applied for jobs with Burns.

As they did so, Burns’ officials in turn assisted the American Federation of Guards, another union with whom Wackenhut had a contract covering its employees in Los Angeles County.

That contract did not cover these employees because this was in San Bernardino County, but nonetheless, Burns assisted the American Federation of Guards in obtaining membership applications from the Wackenhut guards as they came to apply for jobs with Burns.

Representatives of Burns told the guards that they could not get uniforms without signing American Federation of Guards membership cards and that they had to join the American Federation of Guards in order to work for Burns.

On June 29, Burns’s Branch Manager concluding that a majority of the employees to be used that the Lockheed Airport job had signed American Federation of Guards membership applications or were already members of that union recognized the American Federation of Guards as their bargaining representative.

Wackenhut had terminated its guard service at midnight on June 30 and Burns began to furnish such service on July 1.

On that date, Burns' Lockheed force like Wackenhut’s consisted of 42 guards.

Of the 42, 27 or more than a majority had formally been employed by Wackenhut and 15 guards were transferred from other Burns’ jobs.

The Burns guards performed essentially the same tasks at the same stations that the Wackenhut guards had performed.

Moreover, although Burns used its own supervisors, their functions and responsibilities were similar to those of their Wackenhut predecessors, both utilize area supervisors who perform similar functions and both had full time supervisors on the Lockheed job with similar functions.