Creative Vision Resources, L.L.C. v. National Labor Relations Board

On first blush, the question appears simple – when may a successor employer set its own initial terms and conditions of employment or have to accept the terms of the predecessor employer. But decades have passed since this Court addressed the important business and public subject of mergers, acquisitions, and contract assumptions involving a successor employer, which hoped to settle the question. NLRB v. Burns International Security Services, Inc., 406 U.S. 272 (1942); Fall River Dyeing and Finishing Corporation v. NLRB, 482 U.S. 27 (1987). This lengthy time period has bred confusion, conflict, precedent defiance, misinterpretation, and forum shopping amongst the federal appellate courts and within the NLRB. The question presented is: Whether a bargaining demand is required in both the “ordinary” successor context and the “perfectly clear” successor context? Or whether, as the Fifth Circuit held, in “perfectly clear” successor cases, “the composition of the successor’s work force” alone is the “‘triggering’ fact for the bargaining obligation” and no union bargaining demand is required.