S-H Food Service, Inc.

National Labor Relations Board - Board Decisions

Sep 15, 1972

199 N.L.R.B. 95 (N.L.R.B. 1972)

S-H FOOD SERVICE, INC 95
S-H Food Service, Inc. and Bartenders , Hotel, Restau-
rant & Cafeteria Employees Union, Local No. 36,
affiliated with Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO. Case 5-
CA-4294
September 15, 1972
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING,
JENKINS , AND KENNEDY
On June 26, 1970, the Board issued its Decision
and Order in this case (183 NLRB No. 124) finding
that the Respondent, though not a purchaser from
Harry M. Stevens, Inc., of Maryland, was a successor
to Stevens in the operation of food services at the
Annapolis Statler Hilton Inn, the employing industry
having remained essentially the same, and further
finding that as such successor the Respondent failed
to continue in effect the insurance and checkoff provi-
sions of the predecessor's contract during its remain-
ing life in violation of Section 8(a)(5) and (1) of the
Act. Based upon its then recent decision in The Wil-
liam J. Burns International Detective Agency, Inc., 182
NLRB 348, the Board ordered the Respondent to
reinstate said contract provisions and maintain them
during the term of the agreement, and to make whole
employees who had suffered economic loss by
Respondent's failure to maintain the insurance provi-
sion of the contract.
The United States Supreme Court, on May 15,
1972, rejected the Board's conclusion that a successor
employer is bound to honor the terms of its
predecessor's collective-bargaining agreement.'
Thereafter the Respondent, relying on Burns, filed a
Motion for Reconsideration and Dismissal of the out-
standing Decision and Order of the Board in this
proceeding, which proceeding has remained within
the Board's jurisdiction during litigation of the Burns
case. Responses to this motion were then filed by the
Charging Party and the General Counsel, the Charg-
ing Party urging that the motion be denied, and the
General Counsel that the motion be granted.
Charging Party contends that, apart from the Su-
preme Court's finding that an 8(a)(5) violation cannot
i N L.R B v Burns International Security Services, Inc, 92 S Ct 1571, affg
William J Burns International Detective Agency, Inc v N L R B, 441 F 2d
911 (C A 2, 1971), which denied enforcement of 182 NLRB 348 to the extent
it required Burns to honor the terms of the collective-bargaining agreement
of its predecessor
be based on the failure of a successor to honor in full
the collective-bargaining contract of a predecessor,
the Court's decision does not relieve a successor from
its obligation to bargain over prospective changes "in
a predecessor's agreement." We do not fully agree but
we do interpret the law to be that a successor may not
unilaterally institute changes in existing terms and
conditions of employment, and that "existing terms"
must refer to those of the predecessor in situations
where substantially the entire employee complement
is taken over by a successor without hiatus and with
no change in operation. We would so characterize the
situation here where the first S-H payroll showed 81
out of the 89 employees on the last Stevens' payroll.
However, Stevens, the predecessor of S-H Food
Service, Inc., had, prior to take-over by S-H Food,
canceled the existing insurance policies as of the ces-
sation of its operation. S-H Food was not a purchaser
from Stevens and so far as the stipulated facts show
had no part in cancellation of the insurance coverage.
Under Burns, it had no duty to implement the contract
provision of its predecessor requiring insurance, and
at the time S-H began operations, the disputed insur-
ance coverage was not an "existing" term or condition
of employment. Thus S-H, the Respondent, contin-
ued all substantive terms and conditions of employ-
ment which existed at the time it started its opera-
tion?
S-H made no attempt to fix different terms of
employment, so had no need to "initially consult
with" the bargaining representative of the existing
employee complement, within the meaning of Burns.'
When the Union requested bargaining, Respondent
complied promptly and, when it became apparent
that insurance was the issue on which there was dis-
agreement, it bargained to impasse.
Accordingly, we find no conduct by Respondent
which was violative of the Act, and we shall grant the
Respondent's motion and dismiss the complaint in its
entirety.
ORDER
The Board hereby vacates its said Decision and
Order of June 26, 1970, as amended August 20, 1970,
and dismisses the complaint in its entirety.4
2 Checkoff, being solely a contractual obligation, did not carry over as an
existing term or condition of employment
3 N L R B v Burns International Security Services, Inc, 92 S Ct 1571, 1586
Board Member Penello is not participating because of his position as
Regional Director for Region 5 at the time the complaint herein was issued
and litigated
199 NLRB No. 4