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Lincoln Park Zoological Society v. National Labor Relations Board

June 12, 1997

THE LINCOLN PARK ZOOLOGICAL SOCIETY, PETITIONER, CROSS-RESPONDENT,

v.

NATIONAL LABOR RELATIONS BOARD, RESPONDENT, CROSS-PETITIONER, AND PUBLIC SERVICE EMPLOYEES UNION, LOCAL 46, SERVICE EMPLOYEES INTERNATIONAL UNION, AFL-CIO, INTERVENOR-RESPONDENT.



Petition for Review of an Order of the National Labor Relations Board and Cross-Application for Enforcement. No. CA-13-33085. Argued April 14, 1997

Before Flaum, Easterbrook, and Evans, Circuit Judges.

Flaum, Circuit Judge.

Decided JUNE 12, 1997

When the Lincoln Park Zoological Society ("the Society") took over the operation of the Lincoln Park Zoo from the Chicago Park District, it refused to recognize Public Service Employees Union, Local 46 ("the Union") as the bargaining representative of the Zoo employees. The Union complained to the National Labor Relations Board ("NLRB"), which ordered the Society, as a successive employer, to recognize the Union as the exclusive bargaining representative of the employees. Deferring to the considered judgment of the NLRB, which found that the Union's historical relationship with the Zoo employees and its contractual relationship with the Park District were sufficient to prove that it represented a majority of the Zoo employees, we affirm the order of the NLRB.

I.

On January 1, 1995, the Society, up to this point primarily a fund-raising organization, took over the operation of the Zoo from the Chicago Park District. The Zoo employs between 70 and 80 persons, who, prior to the shift in control, were part of the 2,500 employee Park District workforce, which was represented en masse by the Union. Because workers for the Park District are considered public sector employees, negotiations between the Park District and the Union are covered by the Illinois Public Labor Relations Act ("IPLRA"), 5 Ill. Comp. Stat. 315/1 et seq. (West 1997). The Park District has entered into successive collective bargaining agreements with the Union since at least 1984, the year in which the IPLRA became effective. When the Society, a private entity, assumed control of the Zoo, the National Labor Relations Act ("NLRA"), 29 U.S.C. sec. 151 et seq., became the law governing labor negotiations between the Zoo employees and management.

Subsequent to this shift in management, the Society refused to recognize the Union as the bargaining representative of the Zoo employees. Under the NLRB's successorship doctrine, if the new employer makes a conscious decision to maintain generally the same business and to hire a majority of its employees from its predecessor, the bargaining obligation of section 8(a)(5) of the NLRA to negotiate with the majority representative is activated. See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 37 (1987); NLRB v. Burns Int'l Sec. Servs., 406 U.S. 272, 278-79 (1972); NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 292 (7th Cir. 1992); see also 29 U.S.C. sec. 158(a)(5). Arguing that the Society is a successive employer and thus bound to negotiate with the Union, the Union filed a complaint with the NLRB. An administrative law judge ("ALJ") found that the Society indeed violated sections 8(a)(5) and (1) of the NLRA by refusing to recognize the Union as the exclusive bargaining representative of the employees of the Zoo. The NLRB affirmed the ALJ's findings and adopted the ALJ's order. The Society petitions this court for review; the NLRB cross-petitions for enforcement of its order; the Union has intervened as a respondent.

Perhaps because the Society hired at least 75 percent of the Zoo staff, it does not dispute on appeal the Board's finding that it is a successive employer to the Park District. What it does take issue with is the NLRB's recognition of the Union as a representative of the majority of the employees. The ALJ treated the question as a matter of course:

The Union's representative status in this case is easily supported by established presumptions as well as statutory authority. Since at least 1984 the Union has been voluntarily recognized as the bargaining representative of the Zoo's employees, and that recognition has been embodied in successive bargaining agreements. The preamble to the latest agreement between the Chicago Park District and the Union contains a statement that the Park District "is convinced that a substantial majority of the employees covered by this Agreement desire the Union to represent them for purposes of collective bargaining and contract administration." Indeed the Union's pre-1984 representative status was legislatively recognized by the State of Illinois in Section 9(c) of the IPLRA. *fn1 Moreover, since the IPLRA itself provides essentially the same safeguards as the National Labor Relations Act, the Zoo's employees had the same recourse to alter their representation as they would had they been covered under the National statute. There is, in any event, no record evidence that anyone sought to question the Union's majority status before the Respondent's takeover of the Zoo. In these circumstances, I find that the Union was the lawful bargaining agent of the Zoo employees at the time of takeover.

On appeal, the Society argues that the NLRB erred in extending comity to a bargaining representative who achieved its status under the IPLRA, as opposed to the NLRA. Moreover, petitioner argues that a showing of historical support cannot give rise to a presumption of majority support.

II.

Deferential to the NLRB's expertise, we uphold the NLRB's conclusions of law unless "they are 'irrational or inconsistent with the Act.'" Rock-Tenn Co. v. NLRB, 69 F.3d 803, 807 (7th Cir. 1995) (quoting U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1314 (7th Cir. 1991). We review the NLRB's findings of fact and inferences drawn therefrom for substantial evidence. Joe B. Foods, 953 F.2d at 291. Here, we are asked to review the NLRB's construction and application of the successorship doctrine, and thus invoke both standards of review.

Generally, a successor employer is obliged to bargain with a union that represented the employees of its predecessor if it carries on the newly acquired business in substantially the same manner as its predecessor and hires a majority of its employees from the predecessor. See Burns, 406 U.S. at 278-79. In assessing whether a new employer qualifies as a successor, courts generally look at the totality of the circumstances. See Fall River Dyeing, 482 U.S. at 43; Joe B. Foods, 953 F.2d at 291. As explained above, the Society does not challenge its status as successive employer, but the Union's status as majority representative. In Fall River Dyeing, the Supreme Court held that when a union has been certified as a majority representative pursuant to the NLRA, it possesses a rebuttable presumption of majority status in a successorship situation. 482 U.S. at 38 (extending analysis of Burns beyond facts of that case). The hitch in extending a rebuttable presumption in the instant case is that we do not have before us a NLRB certified union, but rather a union whose bargaining status was cemented by and maintained under the IPLRA.

Under the NLRA, a binding bargaining relationship may be established between a employer and a labor union by one of two methods: NLRB certification pursuant to an election or voluntary recognition of the union by the employer. See Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1246 (D.C. Cir. 1994); NLRB v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 750 (7th Cir. 1981). Once an employer has recognized a union, it may not displace the union as majority representative through an election or by other means, but must bargain with that union. See Lyon & Ryan Ford, 647 F.2d at 751. In the instant case, the NLRB contends that the Union has been voluntarily recognized by the Park District since 1984, and therefore is ...


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