(2) the effect of the clauses “entitled and addressees of the assignment”. Despite the often clear wording of succession clauses, the case law is that such clauses are not binding on a successor employer. The simple reason is that there is no contractual effect. However, a replacement clause could affect the pre-employer`s obligations. For example, there have been cases based on a certain contractual language in which a union has successfully concluded sales or transfers from a business. Section 10(j) of the National Labor Relations Act authorizes the board of directors to seek an injunction from the U.S. District Court after the publication of a complaint to stop unfair labor practices while the case is pending. According to the Council, “temporary injunctions are necessary to protect the process of collective bargaining and workers` rights in accordance with the law and to ensure that the decisions of the board of directors are useful”. While the Board of Directors has always had the power to request 10 (j) referrals in these cases, its refocusing on them is remarkable given the increase in transaction activity we saw in 2014 and its success in the first contract business. If the efforts of omission of the board of directors are successful, the relief may include an order allowing the successor to recognize and negotiate with him the union in place, not to unilaterally modify the conditions of work and employment of the workers and to hire the staff of the predecessor. If the existing collective agreement includes a succession clause, the clause may be applied to the seller by an injunction that excludes the sale of the company to a company that is unwilling to accept the contract or by an action for damages. 4.
A successor may set the first conditions. Generally speaking, in the event of succession (the status of the majority is usually at the centre of concerns), the new employer can set the first conditions. There are exceptions such as the “perfectly clear” principle, but in the vast majority of situations it is appropriate that the successor does not pre-exist the first conditions. In other words, it is not bound by the specific provisions of the underlying collective agreement. In the case of an inheritance, the company`s obligation would be, once the first conditions have been set, to “negotiate in good faith” with the union (to obtain a collective agreement). In recent years, the board of directors has focused its attention on obtaining such injunctions for violations that occurred after a union was certified when the parties had to negotiate or negotiate a first collective agreement. These offences include traditional unfair labour practices such as threats, forced interrogations, monitoring of protected activities, inappropriate provision of benefits and unlawful discipline of staff, including discriminatory dismissals. According to the Board of Directors, during the 2012 and 2013 financial years, it requested and received negotiating mandates in 16 of the 19 negotiation cases involving first-contract contracts and in 80% of cases of dismissals during an organizing campaign. 5. Practical considerations. In a high percentage of situations where the new employer transfers the business with essentially the same workforce, that new employer will find it in its best interest to continue the relationship without interruption.
Sometimes it is just a matter of adopting the existing agreement. Often, an employer talks to the union to negotiate changes. This is often the case before the conclusion of the transaction, and sometimes it was a condition on which the entire transaction is based. Experience has taught us that a new employer, willing to continue its relationship with the union without interruption, will find it relatively easy to reach a new agreement with the union (which may contain substantial changes from the previous agreement.