8); Warehouse Union Local 6, etc., 153 NLRB 1051 (1965). See also, General Drivers and Dairy Employees Union Local 563, etc., 186 NLRB 219 (1970) holding that the criteria for determining an allied employer status are common ownership, common control and integration of operations and management policies. The evidence herein totally negates the existence of such a defense.
Defendant unions also assert that plaintiff-franchisees were successor employers, under a duty to bargain with Local 655; therefore defendants argue that the picketing of the franchisees was primary. In National Labor Relations Board v. Burns International Security Services, Inc., 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), the Court held that where there is a change in ownership, but the bargaining unit remains the same and a majority of the employees hired by the new employer are represented by a union recognized under the prior employer's tenure, the new employer has a duty to recognize and bargain with the union. The Court noted, however, that
. . . a majority of these employees had been hired by Burns for work in the identical unit. It is undisputed that Burns knew all the relevant facts in this regard and was aware of the certification and of the existence of a collective-bargaining contract. Id. at 278, 92 S.Ct. at 1577.
The certified bargaining unit herein was a geographic one, consisting of all employees of QSM at its retail stores in the St. Louis metropolitan area. The facts adduced herein establish that plaintiff-franchisees did not hire a majority of the employees in the QSM bargaining unit, either collectively or cumulatively. It would therefore appear that Burns, supra, is inapplicable.
Where there is "a nondiscriminatory hiring of a different workforce by a new owner", the new owner may not have a duty to bargain with the union. J. R. Sousa & Sons, 210 NLRB 982, 984 (1974). In such context, however, the Court must determine whether the refusal to hire the predecessor's employees was because of the employees' union membersh