Communications Workers of America, Local 6186, informally known as the Texas State Employees Union, and Daniels Holdings Tennessee and affiliated landlord entities, filed with the U.S. Bankruptcy Court separate objections to Elements Behavioral Health’s Sale Motion (Docket No. 19). The Texas State Employees Union asserts, “CWA Local 6186 has filed, and is pursuing, unfair labor practice charges with the National Labor Relations Board (the “Board”) concerning the Employer’s unlawful conduct, as described in ‘Communications Workers of America, Local 6186’s Notice of Unfair Labor Practices and Reservation of Rights in Connection with Sale’ [D.I. 69], filed on June 4, 2018. Should the Board determine that any buyer is a successor to any Debtor for purposes of liability for unfair labor practices alleged in these charges, any order confirming a sale as ‘free and clear’ will be inoperative regarding these charges. A bankruptcy court may not preclude the Board from making any determination post-sale about a buyer’s obligations under federal labor law, including concerning successorship or alter ego obligations. ‘[i]f the new employer makes a conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor,’ then the new employer must bargain with the union that represented the predecessor’s employees,’ and a bankruptcy court order cannot shield the new employer from its bargaining obligations) (internal citations omitted). This has long been the settled law….In view of this longstanding rule, CWA Local 6186 asks that any order confirming a sale of Debtors’ assets include the following language: Nothing in this order shall be held to limit any independent obligation of the buyer that potentially could arise after the closing pursuant to the National Labor Relations Act, 29 U.S.C. sections 141 – 169.”
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