                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                                                              F I L E D
                 IN THE UNITED STATES COURT OF APPEALS                       September 19, 2006
                          FOR THE FIFTH CIRCUIT
                                                                           Charles R. Fulbruge III
                                                                                   Clerk
                                     No. 05-60706




      ERICA, INC., GENERAL PARTNER,
      d/b/a FOOD BASKET PARTNERS LP,

                                                  Petitioner-Cross-Respondent,

                                         versus

      NATIONAL LABOR RELATIONS BOARD,

                                                  Respondent-Cross-Petitioner.



               Appeals from the National Labor Relations Board
                         (Docket No. 28-CA-17521)
      _________________________________________________________

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.

PER CURIAM:*

      Erica, Inc. (“Food Basket”) petitions to set aside a Decision and Order of the

National Labor Relations Board (“NLRB”) adopting the administrative law judge’s



      *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
decision that Petitioner violated the National Labor Relations Act, 29 U.S.C.A. §

151 et seq. (West 1998) (“NLRA”), by refusing to bargain with the union

representing the employees of petitioner’s predecessor. The NLRB has cross-

petitioned to enforce the order. We review the NLRB’s findings for substantial

evidence, and its conclusions of law de novo, to determine if those conclusions are

reasonably defensible. Brown & Root, Inc. v. NLRB, 333 F.3d 628, 633 (5th Cir.

2003). We deny the petition and enforce the order of the NLRB for the following

reasons:

      1.     Former employees of Furr’s, Food Basket’s predecessor, made up a

             majority of Food Basket’s workforce, which created an obligation for

             Food Basket to bargain with the union. See Fall River Dyeing &

             Finishing Corp. v. NLRB, 482 U.S. 27, 40–41, 107 S.Ct. 2225, 2234

             (1987). Food Basket argues that one employee, Ruben Lucero, was a

             supervisor, and did not count as an employee for collective bargaining

             purposes. See 29 U.S.C.A. §§ 152(3), 164(a) (West 1998). Thus,

             Food Basket claims that former Furr’s employees were a minority of

             Food Basket’s new workforce. However, other than conclusory

             testimony by one store manager, Food Basket provided no evidence of

             Lucero’s status as a supervisor, and no evidence that Lucero exercised

                                         2
            supervisory powers. The Board is not required to defer to conclusory

            testimony about the position of an employee. Central Freight Lines v.

            NLRB, 653 F.2d 1023, 1025 (5th Cir. Unit A Aug. 1981). See also

            Beverly Enterprise-Mass., Inc., v. NLRB, 165 F.3d 960, 962–63 (D.C.

            Cir. 1999). The NLRB produced a witness who testified that Lucero

            performed work similar to that of a produce clerk. Therefore, the

            NLRB’s finding that Lucero was not a supervisor was supported by

            substantial evidence, and the former employees of Furr’s made up a

            majority of Food Basket’s employees, triggering the duty to bargain.2

      2.    The union made a valid demand for recognition on September 12,

            2001. Food Basket argues that because the union’s demand letter did

            not define the bargaining units sought, the letter was insufficient as a

            demand. However, “a valid request to bargain need not be made in

            any particular form, or in haec verba, so long as the request clearly

            indicates a desire to negotiate and bargain on behalf of the employees.”

            Peters v. NLRB, 153 F.3d 289, 299 (6th Cir. 1998) (citations omitted).


      2
       Because the Court holds that Lucero was not a supervisor for purposes of
the NLRA, it is unnecessary to decide the status of Brandi Yniquez in order to
determine whether former Furr’s employees make up a majority of Food Basket’s
employees.

                                          3
            See also NLRB v. Williams Enters., Inc., 50 F.3d 1280, 1286 (4th Cir.

            1995); Joy Silk Mills, Inc. v. NLRB, 185 F.2d 732, 741 (D.C. Cir.

            1950); Case Concrete Co., 220 NLRB 1306, 1309 (1975). The

            union’s letter was unmistakably a request to be recognized as the

            employee’s bargaining representative, and should have shifted the

            burden to Food Basket to contact the union and seek clarification of the

            demand. See Hydrolines, Inc., 305 NLRB 416, 420 (1991). Food

            Basket argues that Hydrolines requires that a valid demand letter

            include descriptions of the bargaining units sought. However,

            Hydrolines merely declared a union’s letter with unit descriptions

            attached to be a valid demand. Id. In this case, although the union’s

            letter did not include unit descriptions, the letter was sufficiently clear

            to notify Food Basket that the union wished to bargain on behalf of the

            employees.3

      3.    Finally, Food Basket argues that a bankruptcy court order, which



      3
        Moreover, because testimony demonstrated that the stores in question were
up and running by the time the demand letter arrived on September 12, 2001, the
NLRB’s finding that Food Basket employed a substantial and representative
complement of employees at that time was supported by substantial evidence. See
Penn. Transformer Tech., Inc. v. NLRB, 254 F.3d 217, 225 (D.C. Cir. 2001).

                                          4
limited the liability of third party purchasers of Food Basket’s

predecessor, shielded Food Basket from liability under the NLRA. We

disagree.

      Food Basket had a duty to bargain with the union under the

NLRA because of its conduct after the purchase of Furr’s

Supermarkets. A new employer is not necessarily bound by a

predecessor’s collective bargaining agreement; however, “[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. Fall River Dyeing & Finishing Corp. v.

NLRB, 482 U.S. 27, 41, 107 S.Ct. 2225, 2234 (1987). Bankruptcy

courts lack jurisdiction to determine successorship obligations under

federal labor law. See NLRB v. Laborer’s Int’l Union of N. Am., AFL-

CIO, 882 F.2d 949, 955 (5th Cir. 1989). A Bankruptcy Court order

might discharge duties that arose before the bankruptcy petition, but a

successor’s post-sale conduct can create a new duty to bargain. See In

re Carib-Inn of San Juan Corp., 905 F.2d 561, 563–64 (1st Cir.

1990); In re Goodman, 873 F.2d 598, 602 (2d Cir. 1989). As a result,

                             5
         the Bankruptcy Court’s order here does not shield Food-Basket from

         the NLRA’s requirements. Because Food Basket’s post-sale conduct

         meets the test for successor liability, Food Basket acquired the

         obligation to bargain with the union of its predecessor.

PETITION DENIED, ORDER ENFORCED.




                                      6
