Atlantic Technical Services Corp.

ATLANTIC TECHNICAL SERVICES CORPORATION 169 Atlantic Technical Services Corporation and Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO. Case 12-CA-5158 March 5, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 17, 1972, Administrative Law Judge' Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel and the Charging Party filed cross-excep- tions, together with briefs in support thereof. Re- spondent and the Charging Party also filed answering briefs.2 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs, and finds merit in certain of Respondent's exceptions. Accordingly, the Board has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and hereby adopts his recommended Order only to the extent consistent herewith. The complaint alleges and the General Counsel contends that Respondent is a successor employer to Trans World Airlines (hereinafter, TWA), and as such violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union as the exclusive bargaining representative of all its employees who are engaged in the mail and distribu- tion services at Kennedy Space Center (hereinafter, KSC), and by unilaterally changing the terms and conditions of those employees. Respondent contends that it is not a successor employer, that the unit requested by the Union was not appropriate, and that at all relevant times it had a good-faith doubt as to the Union's majority status. The record shows that from 1945 to April 1, 1971, when Respondent took over part of the operations at KSC, TWA had negotiated successive contracts with the Union in a companywide unit of mechanics and related classifications covering approximately 14,000 employees. Upon receiving the contract to perform the basic installation support services at KSC, in 1964, TWA voluntarily extended recognition to the Union as exclusive representative of the approxi- mately 1,100 employees it had working there, and further agreed to extend the basic companywide contract to cover those employees. Later that same year, TWA recognized the Union as exclusive representative of the approximately 41 employees it had performing mail and distribution functions at the KSC facility, and once again extended the basic agreement to cover them. The most recent contract between TWA and the Union, effective January 1970 to December 31, 1971, was a nationwide agreement under the Railway Labor Act covering a company- wide unit of TWA employees. On October 9, 1970, the mail and distribution services contract at KSC was reopened for bidding, and on February 23, 1971,3 Respondent, a newly formed corporation set up specifically for the purpose of performing such small technical support contracts, was notified that it had been awarded the contract. Thereafter, Respondent arranged preem- ployment interviews for the incumbent employees and offered jobs to all who were interested, but at the same time made it clear that Respondent would not be able to continue all of the fringe benefits provided by TWA. On at least two separate occasions prior to takeover, but subsequent to these prehire interviews, the Union requested Respondent to recognize it and make no changes in the terms and conditions of employment without first negotiating with the Union. Respondent, however, refused to recognize and bargain with the Union claiming, inter alia, that its work force was incomplete and it did not know what its work complement would be on April 1; that the unit was inappropriate; and that, at all times, it had reason to doubt the Union's continued majority status. On April 1, Respondent took over operation of the mail and distribution services at KSC, without significant change, utilizing 27 of the 41 former employees who had performed this work for TWA. Upon taking over, Respondent instituted a fringe benefit package for its employees, which, in several substantial respects, was less beneficial to the employees than that previously provided by TWA. On April 9, Respondent held a meeting of the 41 mail and distribution employees and, among other things, conducted a secret ballot poll as to whether they desired to have the Union represent them. The results of that poll were 21 in favor of representation and 20 opposed. However, even after Respondent became apprised of the results, it still claimed that I The title of "Trial Examiner" was changed to "Administrative Law exceptions , and briefs adequately present the issues and positions of the Judge" effective August 19, 1972 parties 2 Respondent's request for oral argument is hereby denied as the record , 9 Hereinafter, all dates refer to 1971 , unless otherwise indicated 202 NLRB No. 13 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the true desires of the employees regarding union representation were in doubt,4 and conducted anoth- er secret ballot poll on April 16. A majority of those voting in this poll voted against union representation. The Administrative Law Judge found that Respon- dent performs the same work, at the same location, for the same contractor as TWA performed, and that a clear majority (27 of 41) of its work complement had previously performed the same work for TWA. He therefore concluded that Respondent was a successor employer to TWA. Further finding the requested mail and distribution unit to be appropri- ate, the Administrative Law Judge concluded that the Union continued as the exclusive bargaining representative of the employees in that unit. Based on those findings, the Judge concluded that Respon- dent violated Section 8(a)(5) and (1) of the Act in refusing to recognize and bargain with the Union and by unilaterally instituting changes in the terms and conditions of employment since April l.5 We do not agree with the Administrative Law Judge's finding of successorship, nor with his conclusions based on those findings. 1. While we agree with the Administrative Law Judge that the diminution in the scope of a unit "does not operate in any relevant fashion to preclude the lesser unit from being appropriate," we believe that it is a relevant factor to be considered, among others, in determining whether or not a new employer is a successor. And where, as here, in addition to that factor, the size and organizational structure of the employer succeeding to the smaller unit is in a number of respects materially different, there may well be a sufficiently substantial change in the nature of the employing industry to defeat any finding of successorship. We find that to have been the situation here. Respondent's assumption of the mail and distribu- tion services portion of the former general installa- tion support services contract which TWA had at KSC amounts to only a small fraction of the work performed by the companywide unit recognized by TWA. The entire complement of employees hired by Respondent, 41, constituted less than 4 percent of the total number of 1,100, formerly employed by TWA at KSC and, of those 41, only 27 came from the former TWA Unit. Thus, the former TWA Unit became doubly diluted. Moreover, TWA was a large company engaged primarily in transportation and related fields, was regulated under the Railway 4 Respondent predicates its good-faith doubt after this poll on the basis of purported comments, made by unnamed employees immediately after the results of the poll were made known, to the effect that if they had known the vote would be so close, they would not have voted for the Union. Respondent's agent who conducted the poll also testified that after the poll had been taken , other observers had told him he had gone too fast and that the employees were confused as to what they were voting for Labor Act, and had contracts throughout the country. In contrast, Respondent is a small organiza- tion, dust recently organized for the purpose of performing small technical support service contracts, whose only contract, as of the time of the hearing in this case, was that involved herein. There is obviously a substantial difference between the employer-em- ployee relationship in a large corporation and that characteristic of a small operation such as Respon- dent's.6 Lastly, the validity of the presumption of the continuing majority status of the Union is especially put in question where, as here, the portion of the former unit taken over by the new employer was originally accreted to the larger unit, and there is no showing that a separate and independent majority status in the smaller unit was established at the time of the accretion. For the foregoing reasons, under the peculiar circumstances here presented, we conclude that Respondent was not a successor employer to TWA. As Respondent was not a "successor employer," it was not bound by the former contractor's obligation to bargain with the Union.7 We therefore conclude that Respondent did not violate Section 8(a)(5) and (1) by bypassing and failing to bargain with the Union prior to the takeover and by unilaterally setting initial terms and conditions of employment. Accordingly, we shall dismiss those allegations of the complaint. 2. After the takeover period, the Union continued to request recognition and bargaining with Respon- dent. Respondent at all times thereafter claimed it had a good-faith doubt of the Union's majority status. We agree with the Administrative Law Judge that Respondent was obligated to bargain with the Union, in an appropriate unit of its employees, after April 9. As previously noted, on that date Respon- dent took it upon itself to determine the Union's majority status by means of a poll. The results of that poll demonstrated that a majority of the unit employees were in favor of union representation. Respondent then predicated its claim of doubt on alleged employee confusion as to the objectives of the vote. We find no merit in this claim. We have held that where an employer undertakes to determine a union's majority status by means of a poll, under conditions of its own choosing, it cannot 5 The Administrative Law Judge further found that Respondent did not have a reasonable basis for a good -faith doubt prior to April 9, and even if it in fact had such a doubt , the results of Respondent's own poll conducted on that date should have dispelled any remaining doubt thereafter 6 N L R B v Alamo While Truck Service. Inc, 273 F 2d 238 (C A 5, 1959) 7 Alabama Precast Products Co, Inc. 163 N LRB 993 ATLANTIC TECHNICAL SERVICES CORPORATION thereafter disclaim the results because it finds them distasteful.8 Accordingly, we find that as of April 9, Respondent had no legal basis to question the Union's majority status, but that its obligation to recognize and bargain with the Union designated by the majority of its employees matured as the result of its own poll. By refusing to recognize and bargain with the Union thereafter, Respondent violated Section 8(a)(5) and (1) of the Act.9 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Atlantic Technical Services Corporation, Cape Ken- nedy, Florida, its officers, agents, successors, and assigns, shall take the action as set forth in the Administrative Law Judge's recommended Order as herein modified: 1. Delete paragraph 1(b) and 2(b) of the Adminis- trative Law Judge's recommended Order. 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. 8 Sullivan Electric Co, 199 NLRB No 97, and cases cited therein 9 Member Kennedy agrees with his colleagues that Respondent was not a successor to TWA and that Respondent did not violate Sec 8(a)(5) of the Act by unilaterally setting initial terms and conditions of employment He would not order Respondent to bargain since "secret elections are generally the most satisfactory-indeed the preferred-method of ascertaining whether a union has majority support " N L R B v G,ssel Packing Co, 395 U S 575, 602 (1969) Bargaining orders are not appropriate in his view absent a finding that respondent committed unfair labor practices the effect of which could not be erased by traditional remedies See his dissent in Sullivan Electric Co, supra Here, the record will not support a finding that the poll of employees violated Sec 8(a)(1) of the Act and there is no other finding of independent unfair labor practices APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT refuse to recognize and bargain collectively with International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of the employees in the following appropriate unit: All mail and distribution service employees, at our facility at Kennedy Space Center, Cape Kennedy, Florida, including senior distribution clerks, distribution clerks and 171 messenger drivers, but excluding office clerical employees and supervisors as de- fined in the Act. WE WILL NOT in any like or related manner interfere with, restrain , or coerce the employees in the exercise of their rights to self-organization, to form, join, or assist unions, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from such activities. WE WILL, upon request, bargain collectively with International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive bargaining representative of all employees in the appropriate unit as found above. ATLANTIC TECHNICAL SERVICES CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Office Building, Room 706, 500 Zack Street, P.O. Box 3322, Tampa, Florida 33602, Telephone 813-228-7711, Ext. 27. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN , Trial Examiner : Upon a charge filed on April 15, 1971, by International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the IAM or the Union, the Regional Director for Region 12 of the National Labor Relations Board, herein called the Board, issued a complaint on November 19, 1971, on behalf of the General Counsel of the Board, against Atlantic Technical Services Corporation , ' herein called the Respondent or the Company , alleging violations of Section 8(a)(5) and ( 1) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq. ), herein called i The name of the Respondent appears as corrected at the hearing 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act. In its duly filed answer the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor practices. Pursuant to notice, a hearing in this case was held before me at Cocoa Beach, Florida, on February 1 and 2, 1972. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs. Oral argument was waived and briefs were filed by all parties. Upon consideration of the entire record herein,2 and upon my observation of each of the witnesses as they appeared before me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Florida corporation, since on or about April 1, 1971, has been engaged in the business of providing mail and distribution support services at the John F. Kennedy Space Center located at Cape Kennedy, Florida, pursuant to a contract with National Aeronautics Space Administration (herein called NASA). During the 12-month period beginning April 1, 1971, Respondent has furnished services for NASA valued in excess of $450,000 which services exert a substantial impact on the national defense. I find that the Respondent is an employer engaged in commerce or in industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED It is admitted, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction-Background and Issues From March 9, 1964, through March 31, 1971, Trans- World Airlines, herein called TWA, pursuant to a contract with NASA, performed the mail and distribution support services at Kennedy Space Center, herein sometimes called KSC, a utility of NASA. The 41 TWA nonsupervisory mailroom employees were covered by successive collective- bargaining contracts between TWA and the Union, the last of which was entered into January 28, 1970, with expiration date of December 31, 1971. On October 9, 1970, NASA, by written invitation, requested the Respondent, a newly formed company, and others, to submit proposals for the mail and distribution support services. The Respondent, in response, submitted a bid on November 16, 1970, and was awarded the contract for the services on February 23, 1971, with operations at KSC to begin on April 1, 1971. Thereafter, the Respondent began recruiting its employ- ees for the KSC work from among the employees of TWA 2 The Respondent's motion to correct the transcript is granted except as to Item 7 The Charging Party's motion to correct the transcript is also granted 3 The complaint also alleged that pursuant to the Board's decision in the case of W J Burns International Detective Agency, 182 NLRB 348, the Respondent was obligated as successor to TWA to adopt and observe the collective-bargaining agreement between the Union and TWA However, at KSC and, after hiring 27 of the 41 TWA employees, began its operation on April 1, 1971, taking over where TWA left off, performing the same work with substantially the same employees. Beginning about March 12, 1971, the Union, in writing, demanded recognition from the Respondent notifying Respondent that it represented the TWA employees whom Respondent was about to take over. The Respondent was furnished a copy of the TWA-IAM collective-bargaining agreement setting forth the working terms and conditions of these employees. By letter dated March 22, 1971, the Respondent denied the Union's request and also denied later requests by the Union. Upon the hiring of the former TWA employees and the beginning of its operations under the NASA contract, Respondent changed many of the terms and conditions of employment of the employees without consultation with the Union. Thereupon the Union filed the charge which resulted in the issuance of the complaint in this proceeding. The complaint alleges, in substance, that the Respondent, as successor-employer to TWA, has failed and refused to bargain with the Union, the bargaining representative of Respondent's employees engaged in the mail and distribu- tion services at KSC and that the Respondent has unilaterally changed the terms of employment and working conditions of said employees in violation of Section 8(a)(1) and (5) of the Act. In its answer, Respondent denies that it is a "successor employer" and alleges affirmatively that the unit requested by the Union is inappropriate in any event and that, moreover, at all relevant times the Respondent possessed a good-faith doubt as to the Union's majority status among the Respondent's employees.3 Thus, the questions presented by the, pleadings and the contentions of the parties are: 1. Is the Respondent a successor-employer to TWA and therefore obligated to bargain with the Union? 2. If the Respondent is a successor-employer did it violate the Act by making changes in the terms of employment and working conditions of its employees? Subsidiary issues are. 1. Is the Union the bargaining representative of the Respondent's employees in a unit appropriate for the purposes of collective-bargaining? 2 Did the Respondent entertain a good-faith doubt as to the Union's majority status if Respondent was otherwise obligated to bargain with the Union? B. The Events Before April 1, 1971 The collective-bargaining agreement between TWA and the Union covered approximately 14,000 employees of TWA. The Union was granted voluntary recognition by TWA for the employees of TWA who performed the mail and distribution support services work at Kennedy Space this portion of the complaint was withdrawn subsequent to the hearing in the light of the Supreme Court's decision in N L R B v Burns International Security Services. 406 U S 272, which holds that a successor-employer is not required to adopt and observe the substantive terms of a collective-bargaining agreement entered into between a union and a predecessor employer ATLANTIC TECHNICAL SERVICES CORPORATION Center by letter dated September 1, 1964. There was no certification by either the National Mediation Board, to which the labor relations matters of TWA are referrable, or the National Labor Relations Board. The NASA request for proposal contained, among other things, a statement to the effect that most of TWA's employees engaged at Kennedy Space Center in mail and distribution work were represented by the Union. Addi- tionally, during the so-called job walk, when prospective bidders, including Respondent, were conducted about the work area to be familiarized with the mail and distribution system, prospective bidders were informed they could obtain copies of the IAM-TWA contract from the IAM local. Thereafter, George Evans, Respondent's secretary, asked for and received a copy of the contract from the Union. Thus, before it even presented its bid, Respondent was well aware of the fact that the employees of TWA engaged in mail and distribution work at the Kennedy Space Center were represented by the Union. However, while Respondent was preparing its proposal to NASA, Evans consulted with Alfred Nelson, manager of mail and distribution services for TWA at Kennedy Space Center. According-to Evans, Nelson told him on a number of occasions that in Nelson's opinion the employees were dissatisfied with the Union's representation and did not want to retain their union membership. The testimony of Nelson, however, in total, indicates that perhaps more than one such conversation took place. Additionally, Evans testified that during the recruitment period of Respondent's employees some time in March 1971, after Respondent had been granted the mail and distribution contract, one of the employees, interviewed by the name of Ron McCartney, told Evans that McCartney in no way wanted to be represented by a union. He also told Evans that this was the opinion of the majority of the employees in the unit. However, although Evans testified there were three other employees who made statements about the Union, he could not name them. Moreover, at these interviews which took place on March 6 and 7, 1971, Evans reminded the employees and brought up the subject matter of the Union if the employees did not do so. Although Evans so testified, employee Webber, who testified at the hearing, stated that Evans did not bring up the subject of the Union nor was the Union discussed at his interview. Both agreed, however, that several prospective employees were present at each interview However, most notable in Evans' testimony was the fact that he could not identify by name, except McCartney, a single employee who Evans claimed had told him that he did not want to be represented by the Union. With regard to these preemployment interviews and the staffing of the Respondent's project, Evans testified that Respondent had intended to hire all of the incumbent employees as it did not "wish to do anyone out of a job that was his livelihood." In fact, Evans testified that he in effect told the future employees "You're in here. You are an incumbent. You're making so many dollars an hour, and if you want to continue on the same job I'll hire you." Moreover, during these prehire interviews, Evans told the employees that the Respondent did not feel that a 173 union was necessary and that the employees did not need a union. It was in this context that the employees, if indeed they did so state, told Evans that they did not want to be represented by the incumbent union.`[ According to W. J. Dinkelmeyer, a union representative, on March 6, 1971, he tried to telephone Warren Baric, Respondent's project manager, to inform him that the Union desired consultation before the hiring of the incumbent employees by the Respondent. When he could not reach Baric , according to Dmkelmeyer, he wrote a letter to Baric at the Respondent's address in Orlando, Florida, in which he stated that the Union would like to meet with a representative of the Company to discuss the transfer of TWA employees to the Respondent and any problems that may be involved. This letter was never answered. But, according to Evans and Baric, the letter was never received by the Respondent nor was the telephone message. In any event, by letter dated March 12, 1971, the Union notified the Respondent that it represented the employees in the mail and distribution classifications and said that the employees were covered by the collective-bargaining agreement between TWA and the Union. The Union also included with its March 12 letter, a copy of its contract with TWA. In its March 12 letter, the Union also requested recognition for the mail and distribution employees and asked that Respondent not make any changes in the existing wages and other terms and conditions of employ- ment without first negotiating with the Union about such changes. The Union also requested that Respondent adopt and observe the terms of the existing TWA-IAM collec- tive-bargaining agreement . This letter also stated that the employees performing the work occupy the classifications of senior distribution clerk, senior freight clerk, distribu- tion clerk, freight clerk, and messenger-driver. By letter dated March 22, 1971, Escholl Walker, president of the Respondent, answered the Union's demand in which he stated, in substance, that inasmuch as the work force was not complete at that time, and inasmuch as the work had not been started and would not start until April 1, 1971, the Respondent did not know what the complement of its employees would be. The Respondent also questioned the appropriateness of the unit as set forth in the Union's demand letter of March 12 The Respondent also stated in that letter that it had interviewed a number of the employees and that a number of them had expressed their desire not to be represented by the Union. Accordingly, Respondent's letter stated further that the Respondent did not feel that it was obligated to bargain with the Union, and suggested that if the Union felt that it represented a majority of its employees when the work started on April 1, 1971, that the Union should file a petition for representation with the Board. By letter dated March 31, 1971, the Union renewed its demand upon the Respondent and in that letter corrected its unit claim to eliminate from the unit all employees except those occupying job classifications of senior distribution clerk, distribution clerk, and messenger-driver. The letter goes on to state that by the time the Respondent would receive the letter its work at the Kennedy Space 4 From the testimony of Evans on cross-examination 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Center would have begun and that, therefore, the work was not in futuro. It was therefore concluded that the time was right for the Respondent to begin recognizing and bargaining with the Union. The letter further disputes Respondent's claim that a number of the employees voluntarily expressed a desire not to be represented by the Union. The Union claimed that its information was to the contrary. The letter further disputes the Respondent's contention that the Union should file a representation proceeding, the Union contending that under the Act the Union is the bargaining representative of Respondent's employees and Respondent must bargain with it. By letter dated April 14, 1971, Respondent answered the Union's recognition request of March 31. In this letter the Respondent again stated that it had a good-faith doubt as to the Union's majority status and furthermore stated concerning the TWA-IAM agreement that they had not been provided a copy of that agreement by NASA or by the Union until receipt of the March 12, 1971, letter. This would seem to be in contradiction to Evans' testimony at the hearing to the effect that he had requested and received a copy of the TWA-IAM agreement before bidding for the work to be performed at KSC. The letter of April 14 finally states that the Respondent, in view of the Union's refusal to file a representation petition, was going to file a representation petition itself. Thus matters stood as of the date that the Respondent took over the mail and distribution service work at the Kennedy Space Center on April 1, 1971. C. Events Subsequent to April 1, 1971 On April 1 the Respondent entered upon the perform- ance of its contract with NASA with 27 of the 41 employees who had performed the mail and distribution services for TWA. It should be noted that the other 14 TWA employees were offered positions with the Respon- dent but refused. The 27 former TWA employees who came to work for Respondent as a result of the interviews were in the categories of senior distribution clerk messen- ger-driver, and distribution clerk. As soon as the Respondent began to operate at the Kennedy Space Center, without notice to the Union, it substantially reduced or eliminated many of the existing benefits and conditions of employment which the employ- ees had been receiving when employed by TWA. These changes were of a substantial nature and encompassed almost every type of fringe benefit Further discussion of this facet of this case is made hereunder. It should be noted, however, that at no time did the Respondent discuss or offer to discuss any of the changes which they made in the employees' benefits with the Union. This, despite the fact that the Union repeatedly continued to demand recognition and bargaining. During the first week of operations after April 1, 1971, Baric called Evans to tell the latter that the employees had decided to have a meeting and wanted to have a member of management present on Friday, April 9, to discuss various aspects of the job Evans agreed to attend. The meeting was held on that date . Present beside Evans and Baric were the 41 employees representing the categories hereinabove set forth. During the first period of the meeting, Evans spoke of the benefits the Company was going to give, how they derived the benefits and where the Company expected to go during the next year. Evans told the employees that one of the things he wanted to establish at that time was what their desires were with regard to union representation . Evans thereupon read to the employ- ees from a prepared text, the essence of which was that the Union had made a demand for recognition for the unit employees and that the Respondent had answered the Union to the effect that it did not see how the Respondent could recognize the Union . The text then explained the basis for Respondent's doubt that the Union represented a majority of the employees and ended with the statement to the effect that the Company was nonunion and would prefer to stay that way. A poll by secret ballot was then taken. The ballot was a prepared ballot which stated at the top "Check one or other, not both . Do not sign your name." Under this was a box alongside which were the words , "I do not want to be represented by the Machinists IAMAW." Under that was another box followed by "I do want to be represented by the Machinists, IAMAW." The employees then cast their ballots singly in secret and all 41 unit employees voted. After the voting was completed Evans and employees Steven Webber and Gary Decker counted the ballots. The results were 21 votes cast in favor of the Union and 20 votes cast against . Immediately after the balloting, Webber heard Evans say, "Well , it looks like you guys want a union . We will write the IAM a letter and tell them to come on in." 5 According to Evans and Baric, immediately after the result of the ballot was announced , employees around them made statements to the effect that if they had known how close the vote was going to be they would not have voted as they did. However, according to employee Webber, he did not hear any such statements . When asked if after the first poll there was general confusion among the employees as to the purpose of the poll, Webber answered in the negative. Despite the outcome of the poll taken on April 9, the Respondent did not in any way seek to contact or negotiate with the Union, or to discuss with the Union any of the changes which the Respondent had made with regard to the employee benefits. According to Evans, this was explained by the fact that there was confusion which existed among the employees about the first poll on April 9 and that, therefore, Respondent was unwilling to rely on that poll as a basis for union recognition. After the poll of April 9, which resulted in continued refusal by the Respondent to recognize and bargain with the Union , the employees began to talk among themselves regarding the possibility of an employee association. According to senior distribution clerk Joel King, the employees held a meeting on April 14 in which he and two other employees proposed to the gathering that while they were waiting for union representation they could either 5 From the credited testimony of employee Steven Webber as corrobo- rated by the testimony of employee Charles Lowe ATLANTIC TECHNICAL SERVICES CORPORATION 175 have an association among themselves or wait for the Union to be recognized. This developed from King's impression on April 9 that the Respondent was not going to recognize the Union. Less than a week later, Baric approached King and one of the other employees stating that Baric had heard about their discussion of a proposed association. It was Baric, therefore, who suggested that they have a meeting among themselves and discuss the possibility of an association. At the April 14 meeting the association idea was discussed. The employees took a vote among themselves and decided that they would like to try the association route. King related this to Baric. Baric then said that they should have a second vote on the union situation. Thereupon, on April 16 a second ballot was conducted by Respondent King testified that at this ballot the employees were definitely confused and really did not know what they were voting for. King's understanding was that the employees thought the purpose of the second ballot was to decide whether the employees wanted an interim employee association pending recognition of the Union or some other labor organization. The ballots did not contain the name of a union but merely gave the employees a choice between union representation or none. The result of this second vote was that union representation did not receive a majority of the votes cast. From that date on the Respondent has steadfastly refused to recognize or bargain with the Union and has conducted its business as though there were no union in the picture. D. The Successorshtp Issue The request for proposal issued by NASA on October 9, 1970, for mail and distribution support services at Kennedy Space Center, contains a work statement describ- ing the services involved in performing the mail and distribution work. This statement defines the exact work which Atlantic Technical Services is obligated to perform under their contract with NASA. Moreover, the contract between NASA and TWA, which preceded the contract between NASA and Respondent, contains an identical work statement. Accordingly, it is concluded that the work which the Respondent performs at the Kennedy Space Center is identical to the work performed by TWA with reference to the mail and distribution services. In fact, the request for proposal calls for the staffing of the operation by the same number of employees with the identical job classification as TWA had utilized. Moreover, 27 out of 41, a clear majority of the unit employees hired by the Respondent to perform the mail and distribution services were employees who had previ- ously performed the identical work for TWA. Additionally, the Respondent admitted and all of the evidence affirms that the Respondent has performed the same work, at the same location, for the same employer as TWA did, utilizing approximately the same complement of employ- ees. It is therefore concluded and I find that the Respondent, as of April 1, 1971, was the successor-employer of TWA. E. The Unit Issue It is well established that a successor-employer is obligated to bargain with the union which is recognized as the majority representative of the employees in the unit to which the employer succeeds 6 However, the Respondent here maintains that it is not obligated to bargain with the Union because (1) the unit for which the Union requests recognition is not appropriate and (2) the Respondent has entertained from the time of the inception of its contract at NASA a good-faith doubt as to the Union's majority status. In support of its argument that the unit requested by the Union is inappropriate, the Respondent argues that the senior distribution clerks, whom the Union would include, are supervisors within the meaning of the Act and that their inclusion in the unit renders the unit inappropriate. Additionally, the Respondent argues that it has employees whose work is related to the employees whom the Union requests and who are not included in the unit proffered by the Union. Moreover, the Respondent contends that it cannot succeed to a unit which is but a small part of a much larger unit which existed under the IAM-TWA agreement when the entirety of the distribution support services work was performed by TWA at Kennedy Space Center. It is concluded that even though the succeeding unit, namely, the senior distribution clerks, distribution clerks, and messenger-drivers, is lesser in scope than the preceding unit, the diminution does not operate in any relevant fashion to preclude the lesser unit from being appropriate. The mail and distribution support services work is precisely the same as it was under the TWA contract. The class of employees performing the work is exactly the same . Moreover, the work is severable and self-contained and is unaffected by its separation from the larger grouping. Accordingly, assuming that the inclusions and exclusions are appropriate , the smaller unit which contin- ues to exist after the changeover is itself appropriate. "The Board has . . . held that where an allegedly `new' employer takes over a portion of the operations of a predecessor enterprise, and continues these operations without hiatus, and with substantially the same employees, it is, as a matter of industrial reality, the `successor employer' of the employees involved. . . ." 7 For consideration next is the question of whether the six senior distribution clerks are supervisors. At the outset, it should be noted that the work of the mail and distribution support services at Kennedy Space Center entails the pickup and delivery of mail, messages , and other related items according to approved schedules and routes, in accordance with the request for proposal issued by NASA on October 9, 1970. Additionally, Alfred Charles Nelson, Respondent's chief of special services, who testified as to the duties of the senior distribution clerks admitted in his 6 Ranch-Way, Inc, 183 NLRB No 116, enfd 445 F 2d 625 (CA 10), Maintenance, Incorporated, 148 NLRB 1299 7 G T & E Data Services Corp. 194 NLRB No 102 See also Fry Roofing Company, 192 NLRB No 177, Ranch-Way, inc, supra 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testimony that the whole job, referring to that of senior distribution clerk, is "pretty routine." The Respondent's organization is headed by a president, vice president, and secretary-treasurer. The working head of the organization at Kennedy Space Center is a project manager, Warren Baric . Answering to Baric is Alfred Nelson, chief of special services, and James Moorehead, chief of mail services. Below the chiefs are 6 senior distribution clerks, 9 distribution clerks, and approximately 26 to 29 messenger-drivers.8 Out of these individuals, 4 report to the chief clerk of special services, Nelson, and the remaining 37 report to Moorehead , chief of mail services. The mail services are divided into five groups or divisions known for convenience as the Central Mail Room, VAB, O&C, CIF, and Cape. Working in the Central Mail Room are 2 senior distribution clerks, 5 distribution clerks, and 12 messenger-drivers. In the VAB there is one senior distribution clerk, one distribution clerk, and seven messenger-drivers. In O&C there is one senior distribution clerk and three messenger-drivers. In CIF there are one distribution clerk and two messenger -drivers. In Cape there are no distribution clerks, only two messenger-drivers. Under TWA, the chief distribution clerks performed work of sorting mail, inserting it in the mail bags, delivering mail, and engaging in further physical activity identical with that of distribution clerks and messenger- drivers only in an emergency when there was a shortage of other employees to perform the work. However, since April 1, under the aegis of the Respondent , the senior distribu- tion clerks perform the same work as the distribution clerks and messenger-drivers for approximately 25 percent of their time or one-fourth of each day's work performance. According to Nelson, who testified as to these matters, the senior distribution clerks are now considered by the Respondent as working leads. For the other three-fourths or 75 percent of their working time, the senior distribution clerks answer the telephone approximately for an hour and a quarter to an hour and a half each day, receiving instructions, changes in mail routine, and complaints from the various points under their jurisdiction about failure to receive mail promptly or not at all. Part of their remaining time is spent preparing vehicle mileage reports and dispatching vehicles to the motor pool for repair and maintenance . For about one-half hour a day they assign people to perform their daily tasks. They also add, delete, and change mail stops, mail codes, and mail bins to comply with NASA's requirements . This takes approximately an hour and a quarter per day. In the morning, for about 25 minutes, the chief distribution clerks ascertain who is available and make assignments accordingly. In assigning work to employees, the senior distribution clerks do nothing to assign work to distribution clerks. The latter's work is strictly routine, they break down the mail and sort it and there is no necessity to make assignments to them . The remaining employees to whom assignments are made are the messenger -drivers. These messenger-drivers function in much the way that mailmen function in the ordinary routines of mailmen in the United States Post Office Department. The messenger-drivers rotate mail runs B These figures are compiled from the testimony of Banc and Nelson and from the request for proposal Inasmuch as the unit would seem to contain each week and the senior distribution clerk keeps a record of the rotation . Normally, the senior distribution clerk assigns messenger-drivers to routes each week , in rotation, in order to maintain the efficiency of the drivers so that each driver knows approximately every route under the jurisdiction of that particular division . However, if a driver has a complaint about a run and for some reason believes he might be treated unfairly in the assignment of the run, he may request a change of assignment from the senior distribution clerk . In addition, there are special deliveries necessary . For these runs the senior distribution clerk must determine who is to make the run on the special delivery. He does this by determining which of the messenger- drivers is available to make the run and then assigns the work to that driver. According to Nelson, whose testimony in this respect is accepted as uncontroverted , a senior may work an employee "through his break" if necessary and he may grant an employee time off. However , in the event that the chief distribution clerk denies time off, the employee can go to a superior to appeal the refusal . Thus, in this respect the senior distribution clerk has no final authority. Insofar as disciplinary authority is concerned , the chief distribution clerk may report an act of insubordination or inefficiency to his superior . However, his role in such case would be tantamount merely to that of an informant inasmuch as it would be the superior who would make the decision as to whether or not to mete out discipline. In such a case the senior distribution clerk would report to the chief clerk or project manager what an employee had done. The senior distribution clerk might then sit in on a conference with the employee and the responsible manage- ment official and might suggest discipline but the decision would be made by the project manager or the chief clerk. Moreover, since the Respondent has taken over the work at the Kennedy Space Center on April 1 , 1971, there is no evidence of the exercise or possession of disciplinary authority by the senior distribution clerks. Before that, under TWA, the seniors role was that described above and then only infrequently . Nelson could only testify that this occurred about seven times over a period of 5 or 6 years. In summarizing, matters of importance are taken up with the project manager or chief clerks who do not necessarily act upon the recommendation of the senior distribution clerks but make their own conclusion as to what is necessary and proper. Additionally , the senior distribution clerks have no authority to hire or fire . The record is barren of any evidence that they make hiring recommendation and there is little, if any, evidence in the record as to what weight their recommendation as to firing might have been given by their superiors . Moreover, the senior distribution clerks do not participate in promoting or rating employees. The only authority they have in this area, if indeed it is authority, is to relay to management a customer's recom- mendation of an employee and suggest a letter of commendation be inserted in the employee's file. While it is true they may talk to an employee about faulty performance or about refusal to accept a discipline, they 41 individuals, the proper figure would seem to be 26 messenger-drivers ATLANTIC TECHNICAL SERVICES CORPORATION apparently have no real authority to do anything about this but report it to their superiors. Insofar as training employees is concerned, the senior distribution clerks, although obligated in their employment status to train other employees, do so only as more experienced employees would train any employee in any plant or factory. Thus, he might accompany a messenger- driver on a mail run that the messenger-driver has not previously made so that the messenger-driver can be familiarized with the run. A senior could also accompany a driver on a run to see whether the run should be lengthened or shortened or that the driver had enough time on the run, and also to observe the time that the driver took on the run to see whether he is performing the run efficiently. In connection with this, the senior distribution clerk observes and reports on the work of a less skilled employee. And if there is any reproof at all by the senior with regard to his relationship with the other employees, he would have no more authority than to verbally scold an employee for some minor infraction. The senior distribution clerk for the purpose of efficien- cy can and does change the position of the equipment in his office, and does make record changes to correspond with changes in the mail runs. However, since these changes occur rather frequently these would seem to be routine operations that have little to do with personnel action. Thus the senior, in this instance, would be concerned primarily with equipment changes, rather than personnel direction. If the senior distribution clerks are considered employees rather than supervisors, the supervisory ratio of employees to supervisors is 7 to 1. If the 6 senior distribution clerks were added to the admitted 6 managers of the Respondent, this would make a total of 12 supervisors to 35 distribution clerks and messenger-drivers, a ratio of less than 3 to 1. In connection with this, it should be noted that in the Cape mailroom there are two drivers who get along without any senior distribution clerks, and presumably without any supervision by them. With regard to working conditions and remuneration, while the seniors enjoy a higher hourly rate of perhaps 6 to 10 percent over that of the other distribution clerks, their other working conditions are the same. As stated, they are hourly paid as are the other employees. They work next to the other employees, lunch with them, and other working conditions are the same. They enjoy the same facilities, work the same hours, and have the same fringe benefits. Historically, the senior distribution clerks have been included in the unit with the other employees. Thus, it can be determined that, at least under TWA, they were regarded as ordinary employees, and not supervisors. Additionally, at the ballots conducted by the Respondent of its employees on April 9 and 16, 1971, the Respondent asked and permitted the senior distribution clerks to participate and cast ballots. Thus it would seem at least, at that time, the Respondent must have regarded them as members properly included in the unit. The facts with regard to the status of the senior 9 Phalo Plastics Corp., 127 NLRB 1511, 1513; New England Transporta- tion Co., 90 NLRB 539; Capital Transit Co., 98 NLRB 141 , 143-145. 177 distribution clerk, as set forth above, were taken from the testimony of Alfred Nelson, the only witness offered by the Respondent for this purpose. Yet, Nelson, who since the advent of the Respondent in April 1971, has been the chief special services clerk and has had only a few employees to supervise. The bulk of the employees are under the supervision of the chief clerk of mail services. Thus with regard to the major portion of the employees of the Respondent, Nelson had little opportunity to personally observe the operations and his testimony was chiefly based on his observations of the employees under the TWA contract at which time he was employed as project manager. Thus, some of his testimony with regard to the duties and authority of the senior distribution clerks under the present regime is somewhat vague and lacking in definitiveness . Additionally, the chief clerk of mail serv- ices, James Moorehead, who was in a better position to know the details of these matters, was not called by the Respondent. While it is true, as advanced by the Respondent, that Section 2(11) of the Act, which defines the term "supervi- sor," has been uniformly held to state the indicia of supervisory authority in the disjunctive and that, in order to find an individual to be a supervisor, it is necessary for that individual to possess only one of these indicia, it is concluded that the senior distribution clerks do not possess, in a basic sense, any of these indicia, either actual or inchoate. Thus, in assigning work to their messenger-drivers, the exercise of judgment is limited, for the most part, to finding a driver who is free to do the work. His assignment of drivers to the various routes is, for the most part, routine, in that the assignments are rotated in an almost completely predictable manner . If the senior distribution clerk does take a complaining driver off one route and assign him to another, it does not require the exercise of judgment that would ordinarily be exercised by a true supervisor. In this respect, he is more like a dispatcher. Thus, the work assignment practiced by the senior distribution clerk is routine and entails little discretion and does not require the use of independent judgment .9 Nor is the fact that the seniors can work a man through a coffeebreak or permit an employee to take time off of any great significance.lo With regard to disciplinary matters, the senior distribu- tion clerks exercise no real authority. Thus, although he can perhaps verbally scold an employee for an infraction, this is a limit of his authority. As stated above he has neither the authority to hire nor fire, nor can he effectively recommend the same . Matters of real significance are taken up by consultation with the projects chief or chief clerk who act on their own and not upon recommendation of the senior distribution clerks. Moreover, the training that is done by the senior distribution clerks corresponds to that of a more skilled employee teaching a less skilled employee the requisites of a job. None of this entails responsible or effective independent judgment. The Board has consistently held that for an experienced employee to observe or report on the work of a less skilled employee is 10 G. C. Murphy Co., 171 NLRB 370,371: Carrey Transportation Co., 119 NLRB 332. 334. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the hallmark of the relationship of the skilled to the less skilled and is wholly nonsupervisory.11 Nor do I find of any significance the ability of the senior distribution clerks to make equipment changes. These again are routine and are connected with the changes in the sequence of mail runs. Additionally, I note that aside from their higher rate of pay, the senior distribution clerks share all other working conditions and fringe benefits with their fellow employees. Finally, I note that the ratio of supervisors to employees, were the senior distribution clerks to be considered supervisors, would be one supervi- sor to every three employees. This would seem to be quite out of line in view of the routine type of work which is involved.12 Thus, I find and conclude that the senior distribution clerks are none other than leadmen whom the Board normally does not regard as supervisors.13 Thus he is neither in name or in substance a genuine supervisor. Although he is charged with some leadership responsibili- ties, the direction of the work is routine in nature and does not require the use of independent judgment. Therefore, it is found that the senior distribution clerks are nonsupervi- sory and are included in the unit herein found to be appropriate for the purposes of collective bargaining. The Respondent would also include in the unit the senior document control clerk and the document control clerk. However, the meager description of their duties in the record is insufficient to base a decision as to their clerical functions in connection with the other employees included in the unit. Accordingly, I do not find that they are included in the unit. Moreover, the record shows that these employees perform a severable, clerical function and that they have never been union represented and were not covered by the IAM-TWA agreement. Accordingly, I shall exclude them from the unit. Even assuming that the senior distribution clerks are supervisors and not properly includable in the unit, I would still find the unit to be appropriate. True, the unit would be smaller. But, the essential character of the unit would be the same and the integrity of a basic unit would not be affected. Nor would the IAM's representative status within the unit be affected. By reason of all of the foregoing, I find and conclude that all mail and distribution service employees employed by the Respondent at the Kennedy Space Center, Cape Kennedy, Florida, including senior distribution clerks, distribution clerks, and messenger-drivers, but excluding all other employees and office and clerical employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. I further find that, by virtue of the above finding, the Respondent is a successor-employer to TWA and that the Respondent hired 27 out of the 41 employees in the predecessor unit and by further reason of the fact that the Union had been the recognized bargaining representative of these employees under the TWA contract since September 1, 1964, I find and conclude that the Union at 11 Southern Bleachery and Print Works, 115 NLRB 787, 791-792, Cumberland Shoe Corp, 144 NLRB 1268, West Virginia Pulp and Paper Co, 122 NLRB 738, 746 all times herein is and has been the bargaining representa- tive of the employees in the said unit. F. The Respondent's Allegation of Good-Faith Doubt However, the Respondent contends that it is not obligated to bargain with the Union because the Respon- dent has always entertained, from the inception of its connection with the Cape Kennedy mail services, a good- faith doubt as to the Union's majority status. Some of the testimony which Respondent offers in support of this contention is set forth above. As related, during the pretakeover period, Respondent's secretary-treasurer, Ev- ans, had some conversations with Alfred Nelson who had been supervisor of mail and distribution services for TWA and was hired on April 1, 1971, by the Respondent as chief of- special services. According to both Nelson and Evans, Nelson had informed Evans that in Nelson's opinion the employees were dissatisfied with the Union. In testifying, Nelson named four of the employees who had stated this dissatisfaction to him. The second item of testimony in relation to this subject is that of Evans relating to the prehire interviews which were conducted among the incumbent TWA employees during March 1971. According to Evans, many of these employees told Evans during these interviews that they did not want representation by the IAM. However, Evans could not state either the number or the names of the employees whom he alleged made these statements to him. It is significant in connection therewith that, in testifying, Evans stated that, if the employees who were interviewed in groups of three and four did not mention the matter of a union, he saw to it that the union matter was brought up. Nevertheless, in his statement to the employees before the April 9, 1971, poll, the details of which are hereinafter related, he told the employees that "As you well know, we avoided mentioning union when we interviewed you. It was only after you said something about the Union that we stated we had not been a union company. At no time did we predict we would have no union in our operation." There would seem to be some inconsistency between Evans' testimony and the statement he made to the employees prior to the poll. In contrast to Evans' statement with regard to the prehire interviews, employee Webber stated that he was inter- viewed, with three other employees present, by Evans and that the Union was not mentioned by anyone during that interview. Employee Rickelman also testified that in his prehire interview by Baric, Respondent's project manager, the matter of the Union was not raised. Employee Lowe testified that during the interview he was present with several other employees one of whom did state that he did not want the Union. However, this was after Evans himself brought up the subject. The other employees present at that time with Lowe did not make any statement about the Union one way or the other. Baric, the project manager, testified that he was present at approximately 60 percent of the interviews and that 20 12 American Radiator and Standard Sanitary Corp, 119 NLRB 715, 718 13 Southern Bleachery and Print Works. 115 NLRB 787, 791 ATLANTIC TECHNICAL SERVICES CORPORATION 179 to 25 percent of the employees expressed their desire not to be represented by a union. On the other hand, Evans testified that there were only four employees who stated that they wished union representation at the prehire interviews. Thus, there is a discrepancy between the testimony of Evans and Banc. Furthermore, the testimony of Evans would seem to be in conflict with the testimony of Webber and Lowe. As noted, Webber testified that he was interviewed with three other employees and that the Union was not mentioned. Lowe testified that only one employee out of the three with whom he was interviewed expressed dissatisfaction with the Union. Thus, there arises from all of the foregoing a grave doubt as to the accuracy of Evans' testimony to the effect that all but a very few of the employees expressed dissatisfaction with the Union at the prehire interviews. This, then, is the sum total of the basis for the Respondent's claimed doubt of the Union's majority representation as of the date that the Respondent took over the mail services at the Kennedy Space Center and at the time that the Union first expressed its request to bargain with the Respondent. Upon the inception of the Respondent's employment at the Kennedy Space Center on April 1, 1971, according to Evans and Baric, other events occurred. According to Banc, during the first week in April, various employees told him that they wanted an employee association. Others discussed with Banc their desire to resign from the Union. As a result of these comments, and in response to the employees' request, this information was given to Evans who on April 9, 1971, called the employees to a meeting. In attendance were all 41 employees in the classifications of senior distribution clerk, distribution clerk, and messenger- driver. Before a poll was taken at the meeting on April 9, Evans addressed the employees from a prepared speech. In that speech Evans informed the employees, among other things, that the Respondent had received information from the program manager and supervisors that there was talk going around about some of the employees having submitted or planning to submit their resignations from the Union. He further stated that because of the comments some of the employees had made during the interviews and because of the Union's demand for recognition, he thought that the matter should be cleared up by the taking of a poll. Before the poll was taken, Evans expressed the purpose of the poll to the employees as "to determine the truth of the Machinists Unions', the IAMAW, claim that they repre- sent a majority of the employees." The balance of the statement concerned itself with the secrecy of the poll and the fact that there would be no recriminations against any employees regardless of the result of the poll. The poll was conducted under virtual laboratory conditions. As noted, the employees were told not to sign their names on the ballots and were assured that there would be no recrimina- tions. Furthermore, the poll was conducted in the strictest of secrecy, the ballot box being in a separate room where no one was present except the individual voting. The ballots were then counted by representatives from each of the three employee classifications and by Evans. The result, as heretofore set forth, was 21 for the IAM and 20 against. The ballot itself read as follows: Check one or the other, not both. Do not sign your name. I do not want to be represented by the Machinists, IAMAW I do want to be represented by the Machinists IAMAW. According to Evans and Baric, immediately after the results of the poll were announced to the assembled employees, some of the employees expressed the thought that they would not have voted for the Union had they known the result would be that close. Others, according to Baric and Evans, stated that they would not have voted for the Union if they thought the Union would win. Neither Evans nor Banc could identify whose voices they heard make these remarks, nor could they state how many such remarks were made. On the other hand, employee Webber, who was standing next to Evans when the results were announced, testified that he heard no such remarks except one to the effect that the employee involved was surprised at the closeness of the vote. According to Evans, Banc told him that he thought that Evans had gone "too fast" and that the employees were confused and did not realize the purpose of the vote. Despite the outcome of the vote, the Respondent decided not to recognize and bargain with the Union. This was evidently made clear to the employees, who, a few days later, on April 14, held a meeting to decide whether to have an employee association . According to employee King who conducted the meeting, and to employee Webber, who was present, the purpose of the meeting was to decide whether, until the Union was recognized, the employees should have some form of organization to at least process grievances. Baric knew of this meeting and in fact gave employees permission to have it. The employees decided at that meeting to have an association . This was conveyed to Baric who then relayed the information to Evans. Accordingly, according to Evans, the Respondent decided to have another poll in view of this latest development, and in view of the apparent confusion of the employees after the April 9 vote. As a result, on April 16 a further vote was taken. Evans again addressed the employees before the vote and again assured them that the vote was to be secret and that there would be no recriminations regardless of the outcome. This time, however, the ballot did not mention the IAM, but gave the employees a choice only between general union representation and no union representation . The result of this second ballot was 16 for union representation and 24 against. I do not find germane to the issue of good-faith doubt the events which succeeded the taking of the April 16 poll. However, it is sufficient to state that the Respondent thereafter continued its refusal to recognize and bargain with the Union. In considering, in the light of all of the foregoing, the question of whether the Respondent had a good-faith doubt of the Union's majority status as of the date that the Union made its first claim upon the Respondent, and at the time the Respondent took over operations at the 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kennedy Space Center, the testimony with regard to the prehire interviews must be weighed. As noted above there is considerable discrepancy between the testimony of Evans and Baric with regard to the extent of employee expressions of dissatisfaction and discontent with the Union at the prehire interviews. In addition, it is difficult, if indeed not impossible, to determine how much employee response was prompted by questioning by Evans at these interviews. It should be noted that the incumbent employ- ees who were interviewed were seeking to be hired by a new employer. Thus their expressions with regard to the Union, especially in those instances which were prompted by Evans, were somewhat less than reliable. Where, as here, a prospective employer interviews employees who are told that the employer is not a union company and does not desire unionization and where the employee is seeking to retain his employment with the new employer, it is very doubtful that expressions of antiunion sentiment by the employees can be relied on as expressions of their true interests in a union. The economic factor of job retention is too vital to employees, in these circum- stances, to permit employees to express their true senti- ments. Thus, an employer cannot be said to rely on objective considerations when he states that he relies on such interviews as the basis for his doubt as to a union's majority status. Accordingly, with regard to these inter- views, I do not find that they constituted such objective considerations as can be relied on to predicate a good-faith doubt as to union majority. Nor do the mere statements of Supervisor Nelson to Evans to the effect that it was Nelson's opinion that the employees did not desire union representation present reliable, objective criteria for the establishment of good-faith doubt. Thus, at the time that the Respondent first rejected the Union's request for recognition and bargaining, the Respondent could not have had a good-faith doubt as to the union's majority status based on objective criteria. Additionally, if there was, in fact, a doubt in the Respondent's mind up until April 9, such doubt should have been dispelled upon the results of the poll taken that day. As set forth above, the poll was conducted under what were virtually laboratory conditions. Therefore, although the vote for the Union was not overwhelming, it did reflect the state of mind of the employees. Although Evans and Baric claim in their testimony that there was confusion among the employees with regard to the purpose of that ballot, it is gainsaid that Evans clearly explained to the employees before the vote was taken that the purpose was to determine whether or not the employees desired to be represented by the Union. Even assuming that Baric and Evans can be credited in their testimony as to the remarks made by unknown employees after the results of the vote were announced, the Respondent must have been satisfied that the employees desired union representation. The fact that the vote was so close does not render it any the less decisive. The Respondent itself set up the laboratory conditions under which the vote was taken and, under the circumstances, should have been satisfied with the results. Moreover, Evans was heard to say, "Well it looks like you guys want a union We will write the IAM a letter and tell them to come in." Nevertheless, the Respondent was evidently not satisfied with the result of that vote and, accordingly, approximately a week later conducted a further poll this time not specifically mentioning the Union but merely asking employees to decide whether they desired to have union representation or not. Additionally, the second poll was taken after the employees had decided that they wanted an employee association to represent them until such time as they could get union representation and the matter with the IAM was concluded. Accordingly, and in view of all of the foregoing, I find and conclude that the Respondent did not have a good- faith doubt as to the Union's majority status and that therefore the Union was and still is the majority represent- ative of the employees in the unit heretofore set forth. G. The Impact of the Changes in Benefits As heretofore related, the Respondent upon hiring of the 27 employees formerly employed by TWA, without notice to the Union, substantially reduced or eliminated a number of the existing benefits and conditions of employ- ment which the employees had been receiving when employed by TWA. These changes were substantial in nature having effect on almost all of the fringe benefits. Thus, there was a loss of all seniority rights, reduced vacation benefits, less holidays, lower dependent coverage under hospitalization plan, higher cost of hospitalization plan, loss of dental plan, loss of bereavement pay, loss of severance pay, loss of retirement benefits and less sick leave, loss of cost-of-living increase , loss of double-time pay after 16 hours work per day, and other changes. These changes, as noted , were made without benefit of consulta- tion or discussion with the Union despite the fact that the Union repeatedly requested such discussion. It having above been decided that the Respondent is the successor-employer of TWA and that the Union is the bargaining representative of the employees in the unit above found appropriate, the question then remains whether the Respondent, in making the unilateral changes above enumerated , refused to bargain in violation of Section 8(a)(5) and (1) of the Act. The Respondent was aware of the terms and conditions of employment of the employees under the TWA-IAM agreement inasmuch as the Respondent had received copies of the contract before it even made its bid for the mail distribution work at the Kennedy Space Center. This contract, plus all the other information received from NASA, informed the Respondent that all of the employees whom it desired to hire were working under the terms of this bargaining agreement. Also, there was no basic change in the employing industry since the Respondent performed the same function utilizing the same complement of employees in the same manner as did TWA when it performed the work under contracts for NASA. The Supreme Court stated in N L R.B. v. Burns Interna- tional Security Services, Inc., 406 U.S. 272, 281. [W ]here the bargaining unit remains unchanged and a majority of the employees hired by the new employer are represented by [their bargaining agent,] there is little basis for faulting the Board's implementation of the express mandates of § 8(a)(5) and § 9(a) by ATLANTIC TECHNICAL SERVICES CORPORATION 181 ordering the employer to bargain with the incumbent union. Accordingly, I find and conclude that by refusing to recognize and bargain with the Union in the instant case, the Respondent violated Section 8(a)(5) and (1) of the National Labor Relations Act. Moreover, although in the Burns case the Supreme Court held that the successor-employer was not obligated to make its employees whole for the reduction in benefits which it instituted because of the special factual circum- stances present in that case, such a conclusion is not warranted by the factual situation presented in the case at bar. Moreover, the Supreme Court in its decision in the Burns case anticipated a situation such as presented by the facts of the instant proceeding. Thus the Court in that case stated: Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to retain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representative before he fixes terms. 14 This language, quoted above, is wholly applicable to the situation in the case at bar. Evans, Respondent's secretary- treasurer, testified that before staffing of the project, the Respondent intended to hire all of the incumbent employ- ees as it did not "wish to do anyone out of ajob that was his livelihood." Indeed, when the Respondent interviewed the incumbent employees for positions which would begin on April 1, the interviewers were directed to seek to hire all of the employees who were then performing the work. Moreover, during the course of the interviews, the employees were told by Evans and Baric "You're in here. You are an incumbent. You are making so many dollars and if you want to continue on the job, I will hire you." Thus it is apparent "that the [Respondent] did plan to retain all of the employees in the unit" and that it therefore was "appropriate to have . .. [Respondent] initially consult with the employees' bargaining representative before . . . [Respondent] fixes the term." Additionally, it is concluded that the Supreme Court's use of the word "consult" means "to bargain." 15 Thus, by making it clear that it planned to utilize the incumbent work force as its work force, the Respondent established its nexus with the unit, and it could not justly disassociate the unit employees it planned to retain from the Union, which was their existing bargaining representa- tive. In these circumstances the Respondent could not ignore the employees' collective-bargaining representative in dealing with them as to matters related to the continuation of their employment and the terms and conditions of such employment.16 Accordingly, I find and conclude that the Respondent planned to hire all of the incumbent employees, that it unequivocably repudiated the IAM as the bargaining representative of these employees and dealt directly with them and unilaterally established the terms of employment to them. By these acts the Respondent violated its obligation to bargain with the Union, and thereby violated Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices in violation of Section 8(a)(5) and (1) of the Act, it shall be recommended that Respondent cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has unlawfully and unilaterally changed and reduced the benefits of its employees without consultation or bargaining with the Union, it will be ordered that the Respondent make its employees whole for any losses they may have suffered by reason of such unilateral action by restoring to the employees the benefits and status of which they were divested, restitution to commence as of April 1, 1971, with interest at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716, with respect to any monetary losses.17 Having found that the Respondent has refused and still refuses to bargain with the Union, in violation of Section 8(a)(5) and (I) of the Act, it will be ordered that Respondent cease and desist from such refusal and bargain upon request by the Union. The General Counsel and the Union maintain that restitution remedies should be applied with regard to the 14 TWA employees who did not accept employment with Respondent, and that these employees should be offered reinstatement and backpay. Counsel for the General Counsel and the Union argue that it is most likely that the 14 employees would have accepted employment with the Respondent had it not been that the terms offered were less than those enjoyed by these employees under the TWA- IAM agreement, and that since such changes in employ- ment terms were unlawfully promulgated, these employees should be offered the opportunity to be restored to employment equivalent to that which they formerly enjoyed. However, there is complete absence in the record of any testimony or other evidence with regard to the reasons these individuals did not accept employment with the Respondent. In these circumstances, it is concluded that the contention advanced by counsel for the General Counsel and Respondent is based on speculation and not proof. Accordingly, the remedy is not extended to cover these individuals. 14 Burns, supra, 294-295 is See NLRB v Katz 16 Chemrock Corp, 151 NLRB 1074, 1080 17 Cf Spruce-Up Corporation, 194 NLRB No 145 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, and on the entire record in this case , I make the following: CONCLUSIONS OF LAW 1. Atlantic Technical Services Corporation is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is the exclusive representative for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of the employees in the following appropriate unit: All mail and distribution service employees, including senior distribution clerks, distribution clerks, and messenger-dnvers, but excluding office clerical employ- ees and supervisors defined in the Act. 4. By unilaterally making changes in the terms and working conditions of the employees in the said unit, without bargaining with the Union regarding the same, the Respondent has refused to bargain in violation of Section 8(a)(5) and (1) of the Act. 5. By refusing to recognize and bargain in any manner with the said Union, the Respondent has violated and is violating Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce and are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(b) of the Act, I hereby issue the following recommended: 18 ORDER Respondent, Atlantic Technical Services Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain, upon request, with International Association of Machinists and Aerospace Workers, AFL-CIO, as the representative of its employees in the following unit: All mail and distribution service employees employed 18 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 19 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order at Respondent's facilities at Kennedy Space Center, Florida, including senior distribution clerks, distribu- tion clerks, and messenger-dnvers, but excluding office clerical employees and supervisors as defined in the Act. (b) Effecting changes in preexisting employment benefits and terms and conditions of employment without consult- ing the statutory representative of its employees. (c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request bargain with the above-named Union as the exclusive representative of the employees in the unit defined above with respect to wages, hours, and other terms and conditions of employment, and, if an agreement is reached, embody it in a signed contract. (b) In the manner prescribed in the Remedy section of this Decision, make whole its employees for any losses they may have suffered as a result of the unilateral changes in benefits and working conditions since April 1, 1971, with interest at 6 percent per annum. (c) Post at its facilities at Kennedy Space Center, Cape Kennedy, Florida, copies of the attached notice marked "Appendix." 19 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.20 of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 20 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read "Notify the Regional Director for Region 12, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith "