United Steelworkers of America, Afl-cio,plaintiff-appellantcross Appellee, v. United States Gypsum Company, Defendant-appellee-cross Appellant, 498 F.2d 334 (5th Cir. 1974)

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U.S. Court of Appeals for the Fifth Circuit - 498 F.2d 334 (5th Cir. 1974)

July 31, 1974


Jerome A. Cooper, Birmingham, Ala., Bernard Kleiman, Gen. Counsel, Pittsburgh, Pa., Michael H. Gottesman, Jeffrey Gibbs, Washington, D.C., for plaintiff-appellant.

J. S. Gruggel, Jr., John J. Coleman, Jr., Birmingham, Ala., Harold D. Burgess, J. T. Otis, Chicago, Ill., for defendant-appellee.

ON PETITION FOR REHEARING

(Opinion April 11, 1974, 5 Cir., 1974, 492 F.2d 713).

Before BELL, INGRAHAM and RONEY, Circuit Judges.

PER CURIAM:


We are aware of the Supreme Court's recent decision in Howard Johnson Co., Inc. v. Detroit Loc. Jt. Exec. Bd., U.S., 94 S. Ct. 2236, 41 L. Ed. 2d 46 (1974), overruling the Sixth Circuit's decision, 482 F.2d 489 (1973), that Howard Johnson, as a successor employer, was bound to arbitrate with the union concerning the extent of its obligations to its predecessor's employees. Concluding that 'there was plainly no substantial continuity of identity in the work force hired by Howard Johnson,' U.S. at, 94 S. Ct. at 2244, the Court held that Howard Johnson had no duty to arbitrate with the union. But, as we emphasize in our opinion, there was a substantial continuity of identity present in the case at bar. 492 F.2d at 716, 726. In short, we believe that the principles of Wiley remain viable in the circumstances of our case.

The petition for rehearing is in all respects denied.