The decisions of the United States Supreme Court in John Wiley & Sons, Inc. v. Livingston, NLRB v. Burns International Security Services, Inc.,' and Howard Johnson Co. v. Detroit Local Joint Executive Board' have raised, but left unanswered, two significant questions regarding the proper balancing of the parties' interests: (1) does the successor employer's duty to arbitrate with the union under the predecessor's contract survive a corporate change?;and (2) if so, does the arbitrator have the power to impose the substantive terms of the predecessor's labor agreement on the successor? To answer these questions, this Article initially will analyze in detail the three Supreme Court cases that have dealt with the duty of a successor to arbitrate under its predecessor's labor agreement.This inquiry will demonstrate that the Court has taken what ultimately can be described only as fundamentally inconsistent positions regarding a successor's duty to arbitrate and that the inconsistency is based, in part, upon a shift in emphasis from the policy of preventing industrial strife toward the policy of promoting free collective bargaining.The second section of the Article will demonstrate theoretically and empirically that the successorship rule formulated in John Wiley & Sons best achieves both national labor policies of preventing industrial strife and promoting free collective bargaining. Furthermore, the examination of these cases will reveal that the inconsistency between Wiley and Burns results from erroneous legal analysis in Burns. Accordingly, the Court's opinion in Burns should be rejected to the extent that it undermines the previous holding in Wiley. In the third and final section of the Article, some general guide-lines will be proposed for arbitrators who must apply a predecessor's collective bargaining agreement to the successor's employment situation, and the manner in which they should be applied in the ordinary successorship situation will be demonstrated.
Sue J. Henry,
Is There Arbitration After Burns?: The Resurrection of John Wiley & Sons,
31 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol31/iss2/2