APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (Board No. 4-CA-7326)
Rosenn and Hunter, Circuit Judges and Snyder,*fn* District Judge.
The National Labor Relations Board petitions for enforcement of its order directing Globe Security Services, Inc., to bargain with the Union of Security Officers as the exclusive bargaining representative of all Globe employees employed by the Pennsylvania Liquor Control Board's State Stores located in Philadelphia. Globe asks us to deny enforcement of the order, contending that the bargaining unit delineated in the order is inappropriate. Because we dismiss the petition as moot, however, we need not decide the propriety of the bargaining unit.
Globe is a large firm that provides security guards for stores, plants, and institutions throughout the nation. It has regional headquarters in Philadelphia and supplies guards to about 150 clients at 250 locations in the Delaware Valley. On August 18, 1974, Globe entered a two-year contract, subject to cancellation by either side upon 60 days' notice, to provide guards for the 55 State Liquor Stores in Philadelphia.
On November 4, 1974, the Union of Security Officers petitioned the Board to certify it as the bargaining representative for a unit consisting of all of Globe's guards working at the State Stores - about eighty employees. The Regional Director certified the union's proposed unit as appropriate. Globe petitioned the full Board for review, arguing that the only appropriate unit was one comprising all 1100 Globe guards working in the Philadelphia area. In February, 1975, the Board summarily upheld the Regional Director. The union won the ensuing election, and in March, 1975, the Regional Director certified the union as bargaining representative for the unit involved.
Globe refused to bargain, insisting that the unit was inappropriate. The union filed an unfair labor practice charge, and in June, 1975, the General Counsel moved for summary judgment.
While that motion was pending, Globe cancelled its contract with the State Stores, effective January 1, 1976. This action was, on the record before us, unrelated to the Board proceedings. Instead, it was the result of a new Pennsylvania statute requiring special training for all security guards carrying lethal weapons, which the Globe personnel at the State Stores carried. When the Liquor Control Board refused to reimburse Globe for the additional training required by the statute but not covered under the Globe-Liquor Control Board contract, Globe exercised its contractual right to cancel.
In November, 1975, the Labor Board granted summary judgment against Globe and ordered it to bargain with the unit previously certified. Because Globe stopped providing guards for the State Stores as of January 1, 1976, the certified unit no longer existed; nevertheless, the Labor Board on June 8, 1976, petitioned for enforcement of its bargaining order. Globe seeks denial of that petition, not on grounds of mootness, but because the certified unit is inappropriate.
Although the parties vehemently deny that this case is moot, we conclude that it is. See DeFunis v. Odegaard, 416 U.S. 312, 94 S. Ct. 1704, 40 L. Ed. 2d 164 (1974) (parties' agreement that case is not moot does not confer upon federal court jurisdiction to review). Because the Labor Board's order directs Globe to bargain with a unit that, all agree, does not exist, enforcement would be a vain and useless act; our decision could not affect the rights of the parties. See Oil Workers Union v. Missouri, 361 U.S. 363, 367, 4 L. Ed. 2d 373, 80 S. Ct. 391 (1960).*fn1
The parties offer two possible bases for finding the case not moot. First, they point to Southport Petroleum Co. v. NLRB, 315 U.S. 100, 86 L. Ed. 718, 62 S. Ct. 452 (1942); NLRB v. Colonial Knitting Corp., 464 F.2d 949 (3d Cir. 1972); and NLRB v. Kostilnik, 405 F.2d 733 (3d Cir. 1969), as authority for the proposition that termination of Globe's contract with the State Stores does not bar a decision in this case. Their reliance upon those cases, however, is misplaced.
Southport Petroleum, Colonial Knitting, and Kostilnik are part of a long line of cases holding that a Labor Board order may properly be enforced even though the party to whom it is directed claims to have gone out of business. Every case in that line, however, involved one or more factors - none of which is present here - that led the courts involved to conclude that the case had not been mooted. In some, the record simply did not demonstrate that the party in question had in fact gone out of business. See, e.g., Southport Petroleum, supra at 106; Colonial Knitting, supra at 952 n.10; NLRB v. Autotronics, 434 F.2d 651, 652 (8th Cir. 1970) (per curiam) (semble); Kostilnik, supra at 734 n.1; NLRB v. Missouri Transit Co., 250 F.2d 261, 263-65 (8th Cir. 1957); NLRB v. Lamar Creamery Co., 246 F.2d 8, 10 (5th Cir. 1957); NLRB v. Haspel, 228 F.2d 155, 156 (2d Cir. 1955) (per curiam) (semble); NLRB v. Dixon, 184 F.2d 521, 523 (8th Cir. 1950); NLRB v. Weirton Steel Co., 135 F.2d 494, 498 (3d Cir. 1943) (entity preserved under state law for purposes of suit). In other cases, the court was concerned with the Board's ability to enforce its order upon the successor or assign - whether sham or not - of the party named in the order. See, e.g., Southport Petroleum, supra at 106-07; NLRB v. Family Heritage Home-Beaver Dam, Inc., 491 F.2d 347, 350-51 (7th Cir. 1974); Cap Santa Vue, Inc. v. NLRB, 137 U.S. App. D.C. 395, 424 F.2d 883, 886 (1970); Kostilnik, supra at 734; NLRB v. Coal Creek Coal Co., 204 F.2d 579, 580 (10th Cir. 1953); NLRB v. O'Keefe & Merritt Mfg. Co., 178 F.2d 445, 449 (9th Cir. 1949); NLRB v. Reynolds Corp., 155 F.2d 679, 682 (5th Cir. 1946); Weirton Steel, supra at 498. The rest of the cases involved other "tag end" orders, see Cap Santa Vue, supra at 886, such as those ordering backpay or reinstatement, which entitled employees to claims against divisions of the employer's business still in operation or to judgments that could be executed against the ...