406 U.S. 272 interest in a partnership that operates the employing entity, N.L.R.B. v. Colten, 105 F.2d 179 (CA6 1939). Other courts of appeals have, equally consistently with these principles, refused to find successorship where there have been no contractual dealings between the two employers, and all that has taken place is a shift in employees. Tri State Maintenance Corp. v. N.L.R.B., 132 U.S. App. D.C. 368, 408 F.2d 171 (1968); International Assn. of Machinists v. N.L.R.B., 134 U.S. App. D.C. 239, 414 F.2d 1135 (1969).' The rigid imposition of a prior-existing labor relations environment on a new employer whose only connection with the old employer is the hiring of some of the latter's employees and the performance of some of the work which was previously performed by the latter, might well tend to produce industrial peace of a sort. But industrial peace in such a case would be produced at a sacrifice of the determination by the Board of the appropriateness of bargaining agents and of the wishes of the majority of the employees which the Act was designed to preserve. These latter principles caution us against extending successorship, under the banner of 307 industrial peace, step by step to a point where the only connection between the two employing entities is a naked transfer of employees. Justice Holmes in Hudson Water Co. v. McCarter, 209 U.S. 349, 355 (1908), summarized the general problem this way: "All rights tend to declare themselves absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is founded, and which become strong enough to hold their own when a certain point is reached." Burns acquired not a single asset, tangible or intangible, by negotiation or transfer from Wackenhut. It succeeded to the contractual rights and duties of the plant protection service contract with Lockheed, not by reason of Wackenhut's assignment or consent, but over Wackenhut's vigorous opposition. I think the only permissible conclusion is that Burns is not a successor to Wackenhut. Following its decision in this case, the Board concluded in Lincoln Private Police, 189 NLRB 717 (1971), that an-employer of guards was not a successor, saying: "Respondent, moreover, has operated as an entirely new and independent business enterprise. It obtained its own operating capital, purchased new uniforms, vehicles, and equipment, and occupied different premises than Industrial. Additionally, there is no indication A finding of successorship has been upheld, on the other hand, by one court of appeals where there were no contractual dealings between the two employers, and the successor employer merely replaced the predecessor as a successful bidder for a transit franchise. Tom-A-Hawk Transit, Inc. v. N.L.R.B., 419 F.2d 1025 (CA7 1969). 406 U.S. 272 that there has been any carryover of supervisory personnel from Industrial to Respondent." 189 NLRB at 719. See also Tri State Maintenance Corp. v. N.L.R.B., supra. To conclude that Burns was a successor to Wackenhut in this situation, with its attendant consequences under the Board's order imposing a duty to bargain with the 308 bargaining representative of Wackenhut's employees, would import unwarranted rigidity into labor-management relations. The fortunes of competing employers inevitably ebb and flow, and an employer who has currently gained production orders at the expense of another may well wish to hire employees away from that other. There is no reason to think that the best interests of the employees, the employers, and ultimately of the free market are not served by such movement. Yet inherent in the expanded doctrine of successorship that the Board urges in this case is the notion that somehow the "labor relations environment" comes with the new employees if the new employer has but obtained orders or business that previously belonged to the old employer. The fact that the employees in the instant case continued to perform their work at the same situs, while not irrelevant to analysis, cannot be deemed controlling. For the rigidity that would follow from the Board's application of successorship to this case would not only affect competition between Wackenhut and Burns, but would also affect Lockheed's operations. In effect, it would be saddled, as against its competitors, with the disadvantageous consequences of a collectivebargaining contract unduly favorable to Wackenhut's employees, even though Lockheed's contract with Wackenhut was set to expire at a given time. By the same token, it would be benefited, at the expense of its competitors, as a result of a "sweetheart" contract negotiated between Wackenhut and its employees. From the viewpoint of the recipient of the services, dissatisfaction with the labor relations environment may stimulate a desire for change of contractors. E.g., Tri State Maintenance Corp. v. N.L.R.B., supra; 76 Lab. Rel. Rep. 230 (1971). Where the relation between the first employer and the second is as attenuated. 309 as it is here, and the reasonable expectations of the employees equally attenuated, the application of the successorship doctrine is not authorized by the Labor Management Relations Act. This is not to say that Burns would be unilaterally free to mesh into its previously recognized Los Angeles County bargaining unit a group of employees such as were involved here who already have designated a collective-bargaining representative in their previous employment. 80 LRRM 2415 (C.A. 4) Burns' actions in this regard would be subject to the commands of the Labor Management Relations Act, and to the regulation of the Board under proper application of governing principles. The situation resulting from the addition of a new element of the component work force of an employer has been dealt with by the Board in numerous cases, and various factors are weighed in order to determine whether the new workforce component should be itself a separate bargaining unit, or whether the employees in this component shall be "accreted" to the bargaiing unit already in existence. See, e.g., N.L.R.B. v. Food Employers Council, Inc., 399 F.2d 501 (CA9 1968); Northwest Galvanizing Co., 168 NLRB 26 (1967). Had the Board made the appropriate factual inquiry and determinations required by the Act, such inquiry might have justified the conclusion that Burns was obligated to recognize and bargain with the union as a representative of its employees at the Lockheed facility. But the Board, instead of applying this type of analysis to the union's complaints here, concluded that because Burns was a "successor" it was absolutely bound to the mold that had been fashioned by Wackenhut and its employees at Lockheed. Burns was thereby precluded from challenging the designation of Lockheed as an appropriate bargaining unit for a year after the original certification. 61 Stat. 144, 29 U.S.C. § 159 (c) (3). 310 I am unwilling to follow the Board this far down the successorship road, since I believe to do so would substantially undercut the principle of free choice of bargaining representatives by the employees and designation of the appropriate bargaining unit by the Board that are guaranteed by the Act. Lynchburg Foundry Company v. N.L.R.B. 80 LRRM 2415 (C.A. 4), May 16, 1972-192 NLRB 773 On petition to review Board Order Before WINTER and FIELD, Circuit Judges, and BLATT, District Judge 2415 PER CURIAM: Lynchburg Foundry Company seeks to set aside the Board's dismissal of the company's complaint that the union illegally, unilaterally enlarged the certified bargaining unit when it pooled the votes of the members of two locals, each separately certified as a bargaining unit at one of the company's two plants, located approxi 80 LRRM 2415 (C.A. 4) mately 100 miles apart. The vote was with respect to a company offer to grant a wage increase provided that the labor contracts in effect at each plant 2416 would be extended for a period of one year. The trial examiner and the Board found that the sole purpose of pooling the vote was to maintain common expiration dates for the labor contracts at each of the two plants. That finding has substantial evidentiary support. We, therefore, conclude that the case is within the principle established in United States Pipe and Foundry Company v. N.L.R.B., 298 F.2d 873, 49 LRRM 2540 (5 Cir. 1962), and we decline to grant the requested relief. PETITION DENIED. Ivan C. McLeod, Reg. Dir. v. Local 1199, Drug and Hospital Union, RWDSU, AFL-CIO 80 LRRM 2503 (D.C.N.Y.), May 16, 1972-Case 2-CP-466 On petition for injunctive relief under Section 10(1) 2504 TENNEY, D. J.: On February 29, 1972 petitioner, Ivan C. McLeod, Regional Director of the Second Region of the National Labor Relations Board, moved this Court for an order preliminarily enjoining respondent, Local 1199 of the Drug and Hospital Union, RWDSU, AFL-CIO (hereinafter referred to as "Local 1199"), from engaging in an unfair labor practice within the meaning of § 8(b) (7) (C) of the National Labor Relations Act (hereinafter referred to as the "Act"), 29 U.S.C. § 158 (b) (7) (C) (1970), pending the final disposition of this matter now pending before the National Labor Relations Board (hereinafter referred to as the "Board"). Jurisdiction of this Court is founded on § 10 (1) of the Act, 29 U.S.C. § 160 (1) (1970). A hearing on this motion was held before me on March 6 and 7, 1972 and the following issues arose: (1) whether the employer in this case, 666 Cosmetics, Inc. (hereinafter referred to as "Cosmetics"), can meet the juisdictional standards established by the Board as a prerequisite to the exercise of its jurisdiction; (2) whether Cosmetics is a successor employer to Three Sizes Cromwell Drug Corporation (hereinafter referred to as "Cromwell") which had previously occupied the premises at 666 Fifth Avenue and which had a collective bargaining agreement with Local 1199; and (3) whether there is reasonable cause to believe that Local 1199's conduct constitutes an unfair labor prac 80 LRRM 2503 (D.C.N.Y.) tice within the meaning of section 8 (b) (7) (C) of the Act. The facts as developed at the hearing are as follows: [FACTS OF CASE] Cromwell, a corporation owned by Martin Margolis, a registered pharmacist, operated a drugstore and luncheonette at 666 Fifth Avenue from 1966 to 1971 during which time respondent Local 1199 had a collective bargaining agreement with Cromwell and represented the employees in the store. During most of this period, Cromwell employed two full-time and one part-time pharmacists, as well as two cosmeticians, one porter, and two cigar clerks. The primary business of Cromwell consisted of a pharmacy, although it also sold paperback books, cosmetics, stuffed toys, candy, cigarettes, cigars and some health and beauty aids. By 1972, Cromwell was not doing well financially and Mr. Margolis was forced to lay off the full-time pharmacists and work in the store himself. Finally, in July 1971 Mr. Margolis involuntarily went out of business when Messrs. Moss and Goodell foreclosed on a mortgage they held and took over the premises and the inventory at 666 Fifth Avenue. Herbert Rose, acting through his corporation 2909 Corporation, succeeded as trustee to the interests of Moss and Goodell, and operated the business for the next few months in order to protect the interests of Moss and Goodell and retained all of the Cromwell employees during this period. On August 19, 1971 Cosmetics entered into an agreement to purchase from Mr. Rose the lease for the premises at 666 Fifth Avenue. Cosmetics is a New York Corporation organized in 1971 to operate a "sophisticated health and beauty aid business". Cosmetics was formed by its president Stanley Codkind and its secretary-treasurer Lawrence Cole, each of whom own 50% of the stock in the corporation. Mr. Cole and his wife also own a discount health and beauty aids business, Ja-Lar, Inc., which is located in the Forest Hills section of Queens and which Mr. Cole has operated for the past seven years. Cosmetics primarily sells cosmetics, health and beauty aids, as well as skin machines, electric hair dryers and blowers, and gum, cigarettes and mints. Cosmetics employs three cosmeticians, three check-out girls, a porter and a stock boy. Cosmetics does not operate a pharmacy and has no license to sell prescription drugs. Cosmetics took over the premises on September 9, 1971 and after some remodeling opened for business on September 22, 1971. Cosmetics hired 2505 none of the former employees of Cromwell. Yet, on September 9, 1971 Mr. Codkind and his attorney Harry Green were approached by |