Interpreting NLRB V. Burns Int'l Sec. Servs., Inc.: The Not So "Perfectly Clear" Successor Exception

A successor employer is a new employer that continues essentially the same business operations as its predecessor. Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have it initially consult with the employees’ bargaining representative before it fixes terms. Courts are split regarding what conduct of an employer makes a successor employer a perfectly clear successor. This article argues that courts should determine that a successor employer is a perfectly clear successor when it fails to clearly communicate to employees prior to an offer of employment, or in a prompt manner subsequent to an offer of employment, that the terms and conditions of employment that existed under the prior collective bargaining agreement would be changed by the new employer.