PARTIES; DEFINITIONS; WHO IS AN EMPLOYER? – Successorship Doctrine

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The circumstances in which a successor employer takes over determines whether the employer has the right to set initial terms and conditions of employment that differ from those that previously applied (in which case the updated terms become the status quo pending negotiations). Specifically, a successor employer has the right to set new initial terms unless it is already “perfectly clear” that the employer plans to hire enough of the predecessor’s employees to make it evident that the union’s majority status will continue. (See First Student, Inc. v. National Labor Relations Bd. (D.C. Cir. 2019) 935 F.3d 604, 608-610 [discussing the “perfectly clear” rule as applied in the private sector].) The Board clarified that for employers under PERB jurisdiction: While an entity taking over a predecessor’s operation can lawfully announce new initial terms if it is not in the “perfectly clear” category, by the same token if the overall circumstances thereafter shift sufficiently that the employer becomes a “perfectly clear” successor, at that point it has a duty to bargain in good faith to impasse or agreement before making any further changes. (pp. 49-50.)