Rouse Co.

GREENGATE MALL, INC. Greengate Mall, Inc., a Subsidiary of the Rouse Company and International Union of Operating Engineers, Local 95-95A, AFL-CIO. Case 6-CA-6260 February 14, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 27, 1973, Administrative Law Judge Milton Janus Issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief,' and General Counsel filed the brief that he had previously submitted to the Administrative Law Judge. 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 has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith. The complaint charges that Respondent, owner of a shopping mall, engaged in conduct violative of Section 8(a)(3), (5), and (1) of the Act in the course of taking over and assuming performance of a mainte- nance service contract which it had previously had with Hattis Service Company (Hattis). Respondent served Hattis with notice of its intent to terminate the contract in May 1972, to be effective as of August 18, 1972, and it commenced its performance of the maintenance services involved on the latter date. As indicated more fully in the Decision of the Adminis- trative Law Judge, below, the alleged 8(a)(3) viola- tions involved Respondent's failure and refusal to hire any of the Hattis employees; and the alleged 8(a)(5) violations involved Respondent's refusal to bargain with the Union, at all times relevant herein, and derive, in part, from the 8(a)(3) conduct and its objective. The Administrative Law Judge found the violations alleged in toto. We disagree with certain of his findings. The findings we affirm or reject and the nature of the modifications we deem appropriate to the provisions of his remedial order are as follows: 1 The Respondent has requested oral argument This request is hereby denied as the record , the exceptions, and the briefs adequately present the issues and the positions of the parties 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to 1. THE 8(A)(3) AND ( 1) FINDINGS 37 The credited evidence concerning the alleged violation of Section 8(a)(3) establishes, in brief, that there were three individuals who composed the group performing the maintenance work involved just before Respondent gave Hattis notice of the termina- tion of the maintenance contract; that all three were then represented by the Union under a bargaining contract covering the certified unit of maintenance engineers; and that Respondent sought to hire and would have hired these individuals for its initial maintenance engineer crew but for: (a) its open opposition to the unionization of its maintenance employees; and (b) the maintenance engineers' refusal to acquiesce in Respondent's consistent demand that they abandon the Union as a precondi- tion to becoming members of its staff. The Administrative Law Judge concluded, on this evidence, that Respondent violated Section 8(a)(3) and (1) of the Act by failing and refusing to hire the Hattis maintenance engineers because of their affiliation with the Union. We adopt this finding. II. THE 8(A)(5) FINDINGS The Administrative Law Judge made two separate findings of 8(a)(5) violation. He found, first, that Respondent was properly chargeable with a violation of its duty to recognize the Union as a bargaining representative on and after August 18, 1972, the date on which Respondent officially began performing the maintenance services previously performed by Hattis; and, second, that Respondent acted in derogation of the Union's status as the representative of its prospective employees at an earlier date when it set its initial terms of hire without first consulting with the Union. Both findings are grounded on the "successor-employer" doctrine, as interpreted and affirmed by the Supreme Court in Burns.3 They reflect the Administrative Law Judge's interpretation of certain principles that case enunciated in defining the character and extent of the bargaining obliga- tions which attach to a new employer who succeeds another as the operator of an established business operation without any interim break in operations. We agree with the Administrative Law Judge that Respondent's duty to bargain with the Union is properly to be tested under the successor-employer doctrine affirmed by Burns. We agree, further, that the first of the 8(a)(5) violations found by the credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Drv Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings ' N L R B v. Burns International Security Servicei, Inc. 406 U S 272 (1972) 209 N LRB No. 2 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Administrative Law Judge. above, is consistent with and justified by the Burns case, but do not find this to be so with regard to the second 8(a)(5) finding. We therefore discuss each 8(a)(5) violation separately. 1. As to the first violation, the Administrative Law Judge found, on the facts summarized above, that but for the Respondent's 8(a)(3) conduct the Union would have been the majority representative of the Respondent's initial complement in the certified engineer unit and that, in the circumstances, the duty to bargain with the Union could properly be found under the successor-employer doctrine af- firmed by the Supreme Court in Burns. He found further that the Union invoked that duty by an express request in late July 1972 that Respondent recognize and bargain with it; that Respondent had refused to honor that request; and that thereby Respondent had refused to bargain with the Union within the meaning of Section 8(a)(5) and (1) of the Act. He concluded, accordingly, that the General Counsel had established the predicate for the issuance of an affirmative bargaining order and he provided for such an order in his remedy. We affirm this part of the Administrative Law Judge's Deci- sion.4 But we hold, further, that, even absent the independent evidence of an express request and refusal to bargain within the meaning of the language of Section 8(a)(5), a bargaining order would be appropriate under the Gissel concepts 5 as a remedy for the serious 8(a)(3) violations committed by Respondent. Respondent's failure to hire an entire complement of employees because of their refusal to renounce their union adherence is not a lesson likely to be forgotten. The issuance of an affirmative bargaining order as part of the remedy for these 8(a)(3) violations is necessary in our view in order to restore the status quo ante, i.e., that existing pnor to Respondent's unlawful conduct.6 2. The Administrative Law Judge found a second independent violation by Respondent of its bargain- ing obligations arising out of its having set the economic terms on which it hired its initial crew of maintenance engineers without consulting the Union and without regard to the terms set• out in the bargaining contract between the Union and Hattis. Interpreting the principles enunciated in Burns, supra, the Administrative Law Judge held that, although Respondent was not obligated to assume Hattis' bargaining contract, it was not privileged in the circumstances of this case to set its initial economic terms at variance from those provided in the Union's contract with Hattis. We do not agree. The Burns case, as we read it, holds that in 4 See, e g., Foodway of El Paso, a Division of Kimbell Foods, Inc, 201 NLRB 933, and cases cited therein at fn 27. 5 N L R B v. Gissel Packing Co, Inc., 395 U.S 575 (1969). situations where, as here, an arm's-length business arrangement is made for the transfer of a going business operation from one employer to another, the new employer's duty to bargain with the union representing an appropriate unit of the predecessor's employees attaches normally at such time as a majority of the new employer's initial complement in an appropriate unit is composed of its predecessor's employees. Prior to that time the new employer is ordinarily free to set his own initial economic terms of hire without consulting with the union and, so long as he does not vary them after the duty to bargain has attached, his unilateral action in institut- ing the terms does not constitute a violation of Section 8(a)(5). In Howard Johnson Company, 198 NLRB No. 98, and Good Foods Manufacturing & Processing Corpora- tion, Chicago Lamb Packers, Inc.,-Division, 200 NLRB No. 86, however, we found a duty to consult with the union before the initial terms of hire arose because of record evidence establishing that the employers had voluntarily obligated themselves to retain all or substantially all of their predecessors' employees before they set the economic terms of employment. Here Respondent did announce a tentative desire to retain its predecessor's employees when it notified Hattis that it would be displacing it as the mainte- nance contractor at the mall. However, it was by no means clear at this time that it would be able to do so since Respondent was restricted at that time, under provisions of its contract with Hattis, from hiring any of Hattis' employees. Therefore, unless and until Hattis released Respondent from these restrictions, Respondent had to, and did, seek employees from other sources. Respondent adduced evidence that it initiated a recruitment plan in late July by, for example, inserting advertisements for help in the newspaper (which described in some detail Respon- dent's benefit programs) before it received word from Hattis that the latter would waive the contrac- tual restrictions against Respondent's hiring of its employees, and that, as part of that recruitment plan, Respondent determined the economic terms it would offer potential employees, which clearly were not identical to those which Hattis had provided. The record indicates that its terms of hire consisted in part of the existing paid insurance and other benefit plans Respondent already had in effect at other portions of its operations and an hourly pay rate at scales commensurate with the experience of its Srtton Tank Co., 193 NLRB 209, enfd 467 F 2d 1971 (CA 8. 1972), Northwest Engineering Co. 158 NLRB 624, enfd 376 F 2d 770 (C.A.DC. 1967) GREENGATE MALL, INC. prospective employees and equivalent to those prevailing in the area for similarly qualified employ- ees. 7 Thus, at a time when it was unclear as to whether Respondent would or would not inherit Hattis' maintenance personnel , it determined its terms of employment. and, we hold , it was entitled so to do. Subsequent events, as indicated .supra, established that once Hattis removed the restrictions against the hire of its employees Respondent discriminatorily refused to hire the Hattis employees , and we have found appropriate violations flowing from that subsequent conduct . But there is no evidence that Respondent changed or varied the terms lawfully set as part of its recruitment plan after its obligation to bargain had matured. For these reasons we reject the Administrative Law Judge's findings of an independent 8(a)(5) violation based on the unilateral setting of initial terms. IN. THE 8(A)(1) FINDINGS The complaint alleged and the Administrative Law Judge found that Respondent committed independ- ent violations of Section 8(a)(1) of the Act by (a) emphasizing to the Hattis employees the futility of their remaining affiliated with the Union; (b) conditioning their employment on their withdrawal of membership in the Union; and (c) promising them economic benefits to induce them to withdraw from the Union. We agree with findings (a) and (b) above, but disagree with (c). The Administrative Law Judge premised his finding that Respondent made an unlawful promise of benefits to the Hattis engineers on the ground that Respondent was obligated first to discuss its initial terms with the Union before offering them to the Hattis engineers, and that its failure to do so was not only a violation of its 8(a)(5) duty, as discussed above, but also an independent 8(a)(1) violation. Inasmuch as we have found that Respondent was entitled to fix its initial terms unilaterally under the facts here, it follows it was also free to announce these terms to its potential employees. Consequently, we find, contrary to the Administrative Law Judge, that Respondent's announcement of its initial terms did not constitute an unlawful "promise of bene- fits." 8 THE REMEDY Having found, contrary to the Administrative Law 7 The payroll records for Respondent's initial complement indicate that those whom it employed received an hourly rate of $5 75 per hour plus the paid benefit package described supra Hattts' employees, all of whom were covered by a union contract, were being paid at the time of the events here in issue between $5.32 and $6 08 per hour and had a wage benefit package 39 Judge, that Respondent lawfully fixed its initial terms of employment, we shall modify the Adminis- trative Law Judge's recommended remedy to the extent that it would have required Respondent to have made the employees whole for changes which it unilaterally instituted in the terms and conditions of employment prior to or on the date of takeover. Instead, we shall order Respondent to make the employees whole on the basis of the rates it initially fixed. We shall also strike the provision in the Adminis- trative Law Judge's recommended remedy which would run the backpay to 5 days after the receipt of the offer of reinstatement or placement on a preferential hiring list, for reasons stated in Frede- man's Calcasieu Locks Shipyards, Inc., 206 NLRB No. 104. (Such an inflexible 5-day provision is traditionally provided only in unfair labor practice strike cases, and even then it acts to the benefit of the employer, not the employees.) In all other respects, we adopt the recommended remedy of the Adminis- trative Law Judge as our own. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Greengate Mall, Inc., a subsidiary of the Rouse Company, Greensburg, Pennsylvania, its officers, successors, agents, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay. wages, hours, and other terms and conditions of employment with International Union of Operating Engineers, Local 95-95A, AFL-CIO, as the exclusive bargaining representative of its employ- ees in the appropriate unit; and failing to recognize the Union as the majority representative of such employees. (b) Discouraging membership in Local 95 or in any other labor organization by discriminating in regard to the hire or tenure of employment of any employee or applicant for employment. (c) Emphasizing to employees or applicants for employment the futility of remaining affiliated with the Union; conditioning employment on withdrawal from the Union; or in any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collec- tively through representatives of their own choosing, which, in some respects, did not provide employee benefits comparable to Respondent's a To the extent that the Administrative Law Judge's Conclusion of Law 8 is inconsistent herewith, it is hereby modified. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 designed to effectuate the policies of the Act: (a) Offer Donald Frye, Stephen Kazousky, and Robert McMunn immediate reinstatement to the jobs they held on August 17, 1972, replacing its present nonsupervisory engineers whom it hired as of August 17, 1972, and thereafter, or, if there are not a sufficient number of positions now available, place them on a preferential hiring list in the order of their seniority with their previous employer , Hattis, all without prejudice to their seniority and other rights and privileges , and make them whole for any loss of pay they may have suffered as a result of the discrimination practiced against them , in the manner set forth in the Remedy section of the Administrative Law Judge's Decision. (b) Upon request, bargain with Local 95 as the exclusive bargaining representative of all employees in the aforesaid appropriate bargaining unit with respect to rates of pay, wages, hours, and other terms and conditions of employment. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its shopping center at Greensburg, Pennsylvania, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representa- tive, 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 insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order 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 " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OIL THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Wi- WILL NOT refuse to recognize and bargain collectively with International Union of Operat- ing Engineers, Local 95-95A, AFL-CIO, as the exclusive bargaining representative of the em- ployees in the following appropriate unit: All maintenance operating engineers em- ployed by Greengate Mall, Inc. at its shopping center, Route 30, Greensburg, Pennsylvania, excluding all other employees, guards, professional employees, and supervi- sors as defined in the Act. WE WILL NOT discourage membership in Local 95, or in any other labor organization. by discriminating in regard to the hire or tenure of employment of any employee or applicant for employment. Wi- WILL NOT emphasize to our employees or applicants for employment the futility of remain- ing affiliated with Local 95, nor will we condition employment upon the withdrawal of membership from Local 95 or any other union. WE WILL NOI in any other manner interfere with, restrain, or coerce employees or applicants in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from all or any such activities. WE WILL offer Donald Frye, Stephen Kazousky. and Robert McMunn immediate reinstatement to the jobs they held as maintenance engineers on August 17, 1972, or, if there are not sufficient positions available now, we will place them on a preferential hiring list, without prejudice to their seniority and other rights and privileges. WE WILL also make Frye, Kazousky, and McMunn whole for any loss of pay they may have suffered as a result of the discrimination which we practiced against them. WE WILL, upon request, bargain with Local 95 as the exclusive bargaining representative of all employees in the above appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment. GREENGATE MALL, INC. 41 GREENGATE MALL, INC.. A SUBSIDIARY OF THE ROUSE COMPANY (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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2977. DECISION STATEMENT OF THE CASE MILTON JANUS, Administrative Law Judge: This case was heard by me at Pittsburgh, Pennsylvania, on January 11, 12, and 17, 1973, pursuant to a charge and amended charges filed on August 16, September 12, and October 30, 1972. A complaint based on these charges was issued on October 31, 1972. It alleges that Respondent (Greengate) was obliged to bargain, as a successor employer, with the Charging Party (the Union or Local 95), which had been certified as the bargaining representative for a unit of maintenance engineers employed by the predecessor employer; that it refused to hire the maintenance engineers when it took over the existing operation, because they wanted to continue being represented by Local 95; and that certain named persons, alleged to be supervisors, interfered with the self-organizational rights of the mainte- nance engineers, as applicants for employment, by empha- sizing the futility of remaining affiliated with the Union, by conditioning their hiring on their withdrawal from the Union, and in other ways. These are alleged to be violations of Section 8(a)(5), (3), and (1). Respondent's answer denies the legal conclusions of the complaint. Upon the entire record, including my observation of the demeanor of the witnesses, and upon the briefs received from the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THL RESPONDENT Respondent is a Pennsylvania corporation which oper- ates a shopping center, known as Greengate Mall, in Greensburg, Pennsylvania. During the 12-month period preceding the issuance of the complaint, its gross revenue derived from the operation of the shopping center was in excess of $100,000, of which $25,000 was received from organizations whose operations meet the Board's jurisdic- tional standards, exclusive of the Board's indirect inflow or outflow standards. During the same period, Respondent received goods and materials valued at $3,000 directly from points outside Pennsylvania for use at the shopping center. On these facts, Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers. Local 95-95A, AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Greengate Mall is an enclosed shopping center with an area of about 900,000 square feet, which leases space to approximately 100 retail establishments. As the owner, operator, and lessor of the center, Respondent is responsi- ble for the temperature control, maintenance, and security of the entire area. The boilers, fans, pumps. and other equipment used for heating and chilling the mall are located in a separate building, known as the central plant, which is contiguous to the enclosed shopping area. Tenants are responsible only for the air moving machinery by which their individual shops utilize the chilled or heated water which is circulated through pipes from the central plant. Greengate was opened to the public in August 1965. Its janitorial and security work has always been performed by porters and guards whom it employs directly, but the operation and maintenance of the central plant and the electrical equipment, etc., was contracted out to an independent firm, Hattis Service Company (Hattis) which is in the business of doing similar work for shopping centers throughout the country. The contract between Hattis and Greengate, the Facilities Maintenance Agree- ment, was for a term of 7 years from the opening of the mall, and was due to expire August 18, 1972. Under this contract, Hattis agreed to furnish the personnel and supervision necessary to operate and maintain the equip- ment described above, all of which was owned by Greengate. In 1972, Hattis employed a resident supervisor and three maintenance engineers at the Mall. The three engineers were members of Local 95, and were represented by it, pursuant to a Board certification, dated August 11, 1965. The latest contract between Hattis and Local 95, covering the Hattis employees working at Greengate, was not due to expire until 1974. Hattis also had agreements with a number of mall tenants to maintain the air moving equipment in their shops, for which Hattis billed them directly. The mainte- nance engineers spent about 20 percent of their time working for these tenants, and the other 80 percent on Greengate's operations. In May 1972, Greengate gave Hattis the required 3- months notice of its intention to terminate their agreement as of August 17, indicating that it would then assume responsibility for what Hattis had been doing, using its 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD own employees. A clause in the agreement provided that Greengate would not hire any Hattis employee for 5 years after their relationship terminated. When Greengate gave Hattis notice of its intention to do its own maintenance work, Randol, an official of Rouse, advised Hattis that it would abide by the restriction on hiring its personnel, but said that if Hattis was willing to waive it, Greengate would be willing to consider some of them for employment. From early May until late in July, Hattis vacillated between upholding the restriction against hiring its employees and waiving it. Finally, on July 20, a Hattis official agreed in a conversation with Randol, that Hattis would not insist that the hiring restriction be enforced, and confirmed it by telegram the next day.' Thus, about 4 weeks before the transfer of operations from Hattis to Greengate, the latter knew that it could hire Hattis employees without violating the agreement. The four Hattis employees at the mall were a supervisor, Trout, and three engineers, Frye, Kazousky, and McMunn. Overly and Adams were the manager and assistant manager of the mall, and Howley was its maintenance supervisor after August 4, when he was hired as the eventual replacement for Trout, who stayed on until the 17th. Hadrovick is an employee of Rouse who, between assignments as assistant mall manager at two other Rouse shopping centers, worked at Greengate in July and August on the transfer of the maintenance work from Hattis to Greengate. The General Counsel contends that he was a supervisor while working at Greengate, or at least a management agent, while Respondent argued otherwise. B. Antecedents to the Takeover on August 17 Certain events and conversations are not in dispute, while the existence of others, or their significance, is a matter of sharp disagreement. It is undisputed that the attorney for Local 95, O'Reilly, had a telephone conversa- tion with Randol, who is in charge of all Rouse shopping center operations. O'Reilly called Randol, who was then at Greengate, because he had learned that Greengate was going to take over the Hattis operations, and he was concerned about the status of the engineers, all of whom were members of Local 95, and represented by it. O'Reilly said he told Randol that Local 95 wanted Rouse to recognize it as the bargaining agent for the maintenance engineers, and to continue its contract with Hattis in effect. I am satisfied that O'Reilly's request of Randol that Greengate recognize it as bargaining agent was meant to encompass a demand that Greengate as successor to Hattis employ the Hattis engineers, and that Randol so under- stood it, since he responded by telling O'Reilly that Greengate was prohibited from hiring any of the Hattis employees.2 Randol testified after O'Reilly, but was not asked by Respondent's counsel to relate his version of the conversation. I take it then that Randol could not ' I credit the testimony of Crump, a Hattis vice president, that he never thereafter withdrew permission for Greengate to hire its employees if it wished to do so 2 O'Reilly recalled the conversation as occurring in late July or early August, but I find, as Randol testified, that it took place on July 19 Randol was at the mall for only 2 days during this period, July 19 and 20. and was not advised by Hattis that it would waive the hiring restriction until the 20th. Randol would thus not have known on the 19th that Greengate could contravert that O'Reilly had asked him to continue the recognition of Local 95, after August 17, as the representa- tive of the three maintenance engineers.3 It is also undisputed that while Randol was at Greengate, and before Hattis waived the hiring restriction, he authorized the placing of help wanted advertisements in a Pittsburgh newspaper for a maintenance supervisor and two maintenance engineers. The advertisements appeared on Sunday, July 23. The Hattis employees learned sometime in June that the relationship between Hattis and Greengate would be terminated as of August 17. Either singly, or in groups of two or three, they spoke on various occasions with Overly and other mall officials about their future prospects at Greengate. It is with respect to these conversations that there is a sharp divergence between the testimony of witnesses for the General Counsel and those for Respon- dent. Frye, one of the three engineers, testified as to a number of conversations with Overly, the mall manager. In late June. he said, Overly had told him that Greengate was trying to get Hattis to waive the restriction against hiring its employees. In early July, Frye and Kazousky, con- cerned about their status if the Hattis contract was terminated, went to see Overly who told him, according to Frye, that he was well satisfied with the Hattis crew, that the Hattis contract was not being renewed, and that if the restriction were waived, he would like to hire them. Overly also told them that it was company policy not to accept the Union, and that it was something they would have to think about. Frye said he asked Overly why they would not accept the Union, and that Overly had replied that the Union was like a cancer-that if the maintenance engineers were allowed to go union, then the porters would want it too, and it would spread through the whole Rouse organization. Overly did not say anything about their dropping the Union at that time. Kazousky's testimony as to their conversation with Overly generally corroborates Frye's, although it is less full. The only substantial difference between them is that Kazousky recalled Overly telling them then that they would have to drop out of the Union if they wanted to work for Greengate. Trout, the Hattis supervisor at the mall, testified that he had a conversation with Randol and Overly on July 20. According to Trout, he told Randol that Rankin, his superior at Hattis, had asked him to pass on the word that Hattis would not hold Greengate to the hiring restriction; that Randol then told him about the benefits Greengate offered its employees; and that Overly asked him how he felt about working as a combined supervisor and engineer on one of the two shifts. Trout said he told Overly he could not see any problem on that score as long as the union business agent and the contract permitted it. Trout said he properly consider the Hattis engineers for employment s Much of Respondent's cross-examination of O'Reilly could not he transcribed by the reporter because of mechanical difficulties with his equipment After the hearing , the parties entered into a stipulation as to their best recollection of what O'Reilly testified to on cross-examination None of it damages O'Reilly's testimony on direct which I have set out above. GREENGATE MALL, INC. was then told there would definitely be no union agreement. He was asked what his affiliation was, and he answered that he did not know what his status was in the Union since he had applied for a withdrawal card. Trout also said he was told that a Rouse company attorney had spoken to the union attorney, and had "shot him down," that there would he no union. Frye and McMunn spoke with Overly in his office on Tuesday, July 25. They testified that they had gone there because Overly had asked to talk to the whole crew, but that Kazousky was then on vacation. Frye testified that Overly told them Rouse was not renewing the Hattis agreement, that they would possibly like to keep the Hattis crew, and that their benefits would be better than what they were then getting. Overly then said, according to Frye, that there was one drawback to their employment-that they would have to get out of the Union. Frye said he asked why Rouse would not accept the Union, and that Overly answered that it was just not their policy. Overly then asked him if he would not consider the offer, and Frye said he would. Overly asked him what the Union had ever gotten for him, and Frye said it was not so much what the Union had done as what it could do for him if he needed a job. Overly also asked him if they had come to a decision, and Frye said he had not, he would have to think about it. Overly said he thought McMunn and Kazousky would follow Frye's lead in staying in or getting out of the Union, and then said he would have to have their answers by Friday. It was in this conversation, Frye testified, that Overly had asked him to drop out of the Union and go to work for Rouse. McMunn's testimony was to the same effect-that Overly had told them they would have to get out of the Union in order to work for Rouse, and that he gave them till Friday to let him know their decision. In its cross-examination of Frye and McMunn as to their conversation with Overly on July 25, Respondent devel- oped the point that recognition of the Union by Greengate was one of the topics discussed, and that Frye and McMunn equated their membership in Local 95 with Greengate's recognition of Local 95 after its agreement with Hattis expired on August 17. It was also brought out that one of the considerations Frye and McMunn would bear in mind in deciding whether to work for Greengate was that Greengate wanted to deal with them individually rather than as members of a bargaining unit.4 On Friday morning, Frye met Assistant Manager Adams and asked him to let Overly know that he could not see going to work for Rouse without the Union. The next day he met Overly, and told him the same thing. Overly told him he was sorry. Also on Friday, McMunn ran into Adams and Hadro- vick. They asked him if he had come to a decision yet, and he told them he had decided not to work for Rouse because he could not see going without the Union. On Saturday, McMunn met Overly and told him the same thing. According to Kazousky, he met Overly one day early in 4 1 am satisfied that the three engineers saw no meaningful distinction between their union membership their representation by the Union, and Greengate's recognition and bargaining with the Union They all under- 43 August, after his return from vacation. Overly asked him if he had made up his mind, since they had not turned in any applications. Kazousky said he told Overly that he could not see dropping out of the Union to work for Rouse, and that Overly replied that Kazousky was making a mistake because Rouse had more to offer in benefits than they were getting through Hattis and the Union. Overly went on to say that he thought he had a good crew, that he did not like to see them leave, that he liked the way they worked and had no complaints. Overly testified that he did not recall telling Kazousky or Frye between July 1 and 17, that the only way he would consider them for employment was if they dropped out of the Union, or discussing with Kazousky the benefits Rouse would pay, and comparing them with those of Hattis. Overly denied that he had had any formal conversation in his office with Frye and McMunn through July 25, as they had testified to, saying that he had not felt free to discuss prospective employment with the Hattis engineers because of the restriction on hiring them. However, on July 25, there had been a discussion in his office, although he denied calling them there. He had learned by this time that the Union had contacted Randol about Greengate recog- nizing it. Overly said he discussed with Frye and McMunn the specifics of the benefits which Greengate had set out in the help wanted advertisement of a few days before, but not the hourly rate, since that was not definitely decided until after Howley was hired as the new maintenance supervisor on August 4. Overly denied telling Frye and McMunn on July 25 that they would have to drop out of the Union before he would consider them for employment, but said that Frye had told him he would not come to work for Greengate if it did not recognize the Union, and that he wanted someone to represent him. Overly recalled that he had indicated to Frye that he did not feel that a third party (obviously referring to a labor organization between an employer and his employees) was that necessary. Overly also denied that he had set any time limit for the Hattis employees to decide whether to drop out of the Union. Recognition of the Union was a constant topic of conversation between Overly and the engineers, particular- ly Frye, as he met them informally in the mall. Overly denied, however, that he had ever told them that it would be futile to try to be employed by Greengate if they retained their union membership, nor had there ever been any decision by Greengate officials that no prospective employee with a union affiliation would be hired. He also denied trying to get the Hattis employees to withdraw from the Union by offering them better benefits than they were getting from Hattis. He did tell them many times that he would not recognize the Union for purposes of bargaining prior to their employment, if they were employed. Hadrovick, who was assigned to the mall from July 17 to August 30 as a technical advisor on the takeover, screened applicants who had responded to the help wanted advertisement of July 23. He testified that he was never told that he could not consider the three Hattis employees stood these to be different ways of expressing a single concept-a bargaining relationship between Local 95 and whoever employed them I am also satisfied that the company representatives saw it the same way too 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as prospects, but that only Frye was considered as a possibility for employment, except that his application was not received while decisions were being made as to hiring. He denied telling any Hattis employee that he would have to drop his union membership in order to be considered for employment. Eventually, Frye, Kazousky, and McMunn submitted written applications for employment on official Greengate forms, but the date on which they were turned in is in dispute. Kazousky testified that he handed them to a secretary in the mall office no later than August 11, while the testimony for Respondent is that they were turned in no earlier than August 15, when, Respondent claims, it had already selected its new crew. Whenever it was that the applications were submitted, no representation was made then that the applicants were or were not willing to drop the Union. Frye testified that the day after the applications were turned in he was called in by Howley who asked him if he had reconsidered and was going to work for Rouse. Frye said he told Howley that he could not see going to work under their conditions. Howley said he was sorry, that if the crew had stayed around, it would have made the job a lot easier. The following Saturday, Frye said he was approached by Hadrovick who asked him what he would change if he were a supervisor. Frye said he told him he would leave the operation much as it was, and Hadrovick then asked if he would reconsider going to work for Rouse. Frye said he would not, and Hadrovick responded by telling him that he thought he was being foolish, that Rouse had more to offer than the Union. On August 17, the last day at the mall for the Hattis crew, Frye said he asked Hadrovick if they had hired a full crew yet, and that Hadrovick said that to his knowledge they had not. Later that afternoon, Overly came over to the central plant, and the men asked him if they had jobs, that they were ready to go to work. According to Frye, Overly said he was sorry, that things had come down to the wire, and that he had hired his last man that afternoon .5 Kazousky also testified that after submitting the applica- tions, Hadrovick had asked him if he would reconsider working for Rouse, and that he had told Hadrovick that he could not see getting out of the Union for that. Hadrovick then said, according to Kazousky, that he was making a mistake, that Rouse had more to offer than they were getting through the Union. Howley said that he had asked the Hattis engineers on August 11 why they had not submitted applications, and that they had told him they would not until their union representative advised them to do so. None of them, he said, seemed to be particularly concerned that they might be losing their jobs. Frye indicated to him that he was still dealing with Hattis about another job with that organiza- tion. C. Replacing the Hattis Crew Howley applied for the job of maintenance superintend- ent in response to the newspaper advertisement of July 23, 5 Kazousky's testimony as to the events of August 17 is substantially the same as Frye's 6 The four members of the Hattis crew. it should he noted, had spent and was hired as of August 4, to be the eventual replacement for Trout. He immediately began to go over the 25-30 applications which had come in , and he also got in touch with people whom he knew by reputation but who had not responded to the advertisement. He eventually interviewed Paone, who had written a letter of application, about August 15, and hired him to report on the 17th. Howley also had three others under active consideration before August 15, but by that date only one, Greenaway, was still in the running. He was offered an engineer's job, came to the mall on the 17th, but then decided not to go to work. Thus, as of the takeover date, only Howley and Paone were actually working. On that date, August 17, Paone recommended Fowler, who had not answered the advertisement, and Howley interviewed him on Saturday, the 19th. He was hired, and began work the following Monday. A week or so later, Patton, an employee of a contractor who was doing some work for a mall tenant, applied to Howley for an engineer's job. He was hired but did not begin working for Greengate until September 11. On October 16, Howley left and was replaced by Paone as a working supervisor. Howley testified that Hadrovick felt that a working supervisor and two engineers would be sufficient to run the entire operation, but that he thought that more mainte- nance jobs could be obtained from the mall tenants, thereby making an additional engineer necessary. That was why, he said, Patton was hired as the fourth man of the crew .6 Respondent denies that it was prepared to hire the three nonsupervisory Hattis engineers only if they would agree to work without union representation. It claims that it was ready to consider them on the basis of their qualifications, but that only Frye would have been satisfactory to it. Furthermore, in reaching its decision not to hire any of them it took into account their seeming indifference and vacillation about submitting applications for employment, and their coolness and grudging attitude toward Hadrovick and Howley as they acquainted themselves with the equipment in the central plant and with the maintenance procedures of the Hattis crew. Frye had been employed by Hattis at the mall for the past 7 years, even since it opened; Kazousky since March 1969; and McMunn, according to his application for employment, sometime in 1971. McMunn was the least experienced of the three, and was earning less than the other two, although he was scheduled to be raised to their rate in a few months, under the Hattis contract with Local 95. Kazousky had had a coronary attack during his employment and had been away from work for a few weeks. After his return, he was assigned to light work for a while, but had then been cleared by his doctor to perform the full range of activities he had been doing before his attack. The mall had never raised any objection to Kazousky's employment or performance either before or after his coronary. So far as the record shows, Greengate about 20 percent of their total man hours working for tenants who had their own maintenance agreements with Hattis After August 17. Hattis retained Frye to service its accounts at the mall. GREENGATE MALL, INC. 45 _ had never had any serious complaints against any of the three engineers at any time.7 D. The Section 8(a)(3) Allegations From June to August, as information gradually became available that the Hattis agreement was to be terminated and that the hiring restriction might be lifted, the Hattis crew and Whalen, the business agent of Local 95, kept in touch with each other over their employment prospects at the mall. I am satisfied from their testimony that Frye. Kazousky and McMunn wanted to continue working at the mall, under the existing conditions established by the Hattis agreement with Local 95, and with continued representation by Local 95. Their reluctance to file formal applications for employment with Greengate was not due to any hesitance on their part to accept employment there if offered, but to their belief, fostered by Whalen, that they were entitled to retain their jobs after the takeover without further action on their part. The critical issue then is why Respondent refused to hire them as its employees. I am convinced that Overly considered all of them to be competent. Since he had no direct authority over them as Hattis employees, his judgment as to their individual or collective work was based presumably on how smoothly the operation of the central plant was conducted, and as to that, there were no grounds for complaint. He may have thought Frye to he the best of the three, but there is no evidence that he, Hadrovick, or Howley thought Kazousky or McMunn to be unqualified in any respect. Kazousky carried his full load after being released by his doctor, and McMunn also assumed the same responsibilities as the others. When Rouse gave notice of its intent to terminate the Hattis agreement in May, it gave as its only reason the expectation that it could do the same excellent work that Hattis had done for it, while retaining the profit that Hattis was making on its contract. At no time before August 17, did any Rouse official take exception to the work of any Hattis employees. As a matter of fact, its interest in getting Hattis to waive the hiring restriction indicates its satisfac- tion with the Hattis crew's work. Nor does Respondent's contention that it considered the engineers uncooperative toward Hadrovick and Howley in July and August seem any better founded. They were, after all, still working for Hattis and its supervisor, Trout. If there were problems or questions concerning the operation of the central plant which Hadrovick wanted explained, it was Trout who was authorized to supply the information. There were undoubtedly undercurrents of tension, since the engineers were concerned about their future employ- ment, while Hadrovick and Howley, both new at their jobs, were equally concerned that the takeover he accomplished smoothly. That there may have been some occasions when personalities clashed under these circumstances is to be 7 Greengate had the right under the maintenance agreement with Ilattis to have Hattis discharge any of the engineers whom Greengate considered unsuitable to it, and had exercised that right on one occasion in the past 7 years. 8 Chemrock Corporation, 151 NLRB 1074, 1078 "We think that where, as here, the only substantial change wrought by the sale of a business enterprise is the transfer of ownership, the individuals employed by the expected, but I am satisfied that they were minor and relatively unimportant, and played no real part in the mall's decision not to hire them. There remains the question whether the late filing of the applications was a factor in the decision not to hire the engineers. I do not believe that it was, and I therefore find it unnecessary to decide whether Kazousky submitted the three applications between August 7 and 11, as he testified, or on August 15 or 16, as the testimony for Respondent indicates. First of all, Frye, Kazousky, and McMunn were not in the same category of applicants as the strangers who applied in response to the newspaper advertisement of July 23.8 They had worked at the mall for years, were well- regarded by Rouse officials, while their qualifications were established by their actual performance on the job, rather than by a paper record. Secondly, the submission of an application on the form used by the Respondent, seems to have been largely a formality, the final, rather than a preliminary step, in the hiring process. Thus, Paone, Fowler. and Patton. the three nonsupervisory engineers hired by Greengate, were hired on the basis of personal interviews and the recommendations of people in the organization who already knew them, rather than on the basis of the application form alone. And finally, it was no secret to Overly, Hadrovick, or Howley that the Hattis engineers wanted to be retained. In a number of conversa- tions between them, as well as in the conversation between the Union's attorney and Randol on July 19, it was apparent that the Hattis employees regarded themselves as applicants, and were so regarded by management, since the talk was always in terms of the conditions under which they could be hired. Moreover, even on August 17, after the formal applications had been submitted, there were still vacancies to be filled, since Fowler was not even interviewed until the 19th, and Patton had not even come on the scene. Thus, since Respondent's stated reasons for not hiring Frye, Kazousky, and McMunn appear to me to be untrue, I conclude that it preferred new and untried employees in preference to the Hattis employees for a reason peculiar to the latter. The reason, I find, was their explicit insistence on their representation by Local 95. The Rouse Company was opposed to the unionization of its shopping center employees, as evidenced by General Counsel's Exhibit 16, a job description for assistant mall managers. Paragraph 10(c) of which reads as follows: "None of our personnel belong to unions, and we feel that it is in the best interest of the company both financially and from a management point of view to avoid unioniza- tion in our operating properties." I credit the testimony of Frye and Kazousky that even before July 20 (when Randol was finally advised that Hattis would waive the hiring restriction) Overly had told them he would like to hire them but that it was company seller of the enterprise must be regarded as 'employees' of the purchaser as that term is used in the Act. Such individuals possess a substantial interest in the continuation of their existing employee status, and by virtue of this interest bear a much closer economic relationship to the employing enterprise than , for example, the mere applicant for employment in the Phelps Dodge case." 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policy not to accept the Union, and that it was like a cancer which would spread through the entire Rouse organization if the engineers were allowed to go union. I also credit Trout who testified that Overly had asked him how he felt about staying on as a working supervisor, and then told him there would definitely be no union agreement when Trout said he could see no problem if the union contract permitted it. I also credit the testimony of Frye and McMunn that Overly called them to his office on July 25 (when Overly knew that the hiring restriction had been dropped) and told them there was only one drawback to their employ- ment-that they would have to get out of the Union. Although Overly denied telling them that they would have to drop out of the Union before he would consider them for employment, he nevertheless admitted that Frye had told him he would not work for Greengate if it did not recognize the Union, and that he had then told Frye that he did not feel a third party was necessary. In effect, Overly was telling them that they would not he hired if they insisted on being represented by the Union. Despite the denials of Overly, Hadrovick, and Howley that they had told the Hattis employees that they would have to drop their union membership if they wanted to be employed by the mall after August 17, I am satisfied from the credited testimony of Trout, Frye, Kazousky, and McMunn that they understood, and were meant to understand, that their future employment depended on their disavowal of further representation by Local 95. I find that Respondent refused to hire Frye, Kazousky, and McMunn because they would not forego their right to remain members of, and he represented by, a labor organization. This constitutes a violation of Section 8(a)(3) and (1)9 E. The Section 8(a)(5) and (1) Allegation's Respondent contends that it is not a successor to Hattis and is not therefore obligated to bargain with the representative of the Hattis engineers. It argues that the situation here, the termination of a service contract by an owner of real estate is distinguishable from those cases in which successorship is usually found, where one subcon- tractor replaces another, or one employer purchases the assets or stock of another. It is argued that there is no continuity between land owner and contractor, since the former is not generally in the business of supplying the same services as its contractor, and thus has different labor needs and management objectives. It is also argued that there is here not the requisite continuity of the employing industry in that the work performed by Greengate is not the same as that done by Hattis, since Hattis continues to do work for tenants of the mall under direct service agreements. Finally, Respondent urges that it is not a successor because it has hired none of the Hattis 9 N L R B v Burns International Security Service, Inc, 406 U S 272 (1962) at In. 5. Barrington Plaza and Tragnieu, Inc., 185 NLRB 962, enfd in relevant part, N L R B v Tragniew, Inc, 470 F 2d 669 (C.A 9. 1972), Tn State Maintenance Corporation, 167 NLRB 933, enfd. on the ground that there was substantial evidence for the Board to find that Respondent had refused to employ the predecessor's employees because of their union membership, 408 F 2d 171 (C.A D.C 1968). K B & J Young's Supermar- employees, was not under an obligation to do so, and would have violated Section 8(a)(2) if it had granted or promised recognition to Local 95 while it was in the process of hiring new employees. In determining whether there is a substantial continuity of the business operations or, as it is often referred to, the same "employing industry," the Board takes into account a number of factors, not all of which need be present for a finding of successorship. Among these relevant considera- tions is whether the new employer is using the same plant equipment, or employing substantially the same working force and supervisors, whether the same jobs exist under similar working conditions, and whether he is offering the same services. I find that most of these factors are present here. The central plant with its chilling and heating equipment, the elevators, escalators, and electrical equipment which Hattis operated and maintained for Greengate are owned by Greengate, and are now operated and maintained by it. There has been no transfer of physical assets, stock in trade, or intangibles. The physical plant remains where it was, and the same operations are being performed there by employees doing exactly the same work as was done by Hattis and its employees. In fact, the continuity of operations is even more apparent when, as here, the owner of the physical plant takes over the operation of its own plant and equipment than when one subcontractor is replaced by another with whom it had no contractual privity.10 The situation here is not at all analogous to that suggested by Respondent, that the successorship doctrine does not encompass the case where a land owner who has contracted out the building of a structure on his property is not obligated to hire the contractor's construction workers. The situation here, rather, is one in which the subcontrac- tor, Hattis, was engaged in performing a maintenance and operating function which is just as necessary to Green- gate's business of operating a shopping center as the janitorial and security work which have always been performed by its own employees. The fact that Hattis may still be doing some work at the shopping center for individual mall tenants does not impair the substantial continuity between the work formerly done by Hattis and now done by Greengate. The three or four Greengate employees who now work at the central plant are doing what the Hattis employees did, and if Greengate is successful in contracting for additional work from its tenants, as it hopes to do, it will use its own employees, as Hattis did. The nature of the maintenance work for Greengate and its tenants remains unchanged whether or not there has been some contraction or expansion there. Finally, Respondent cannot rely on the fact that it hired none of the Hattis employees as establishing that it is not the successor to Hattis, since it refused to hire them for a discriminatory reason. If it had fulfilled its obligation under the Act, and had hired the Hattis engineers without kets, Inc, 157 NLRB 271, enfd 377 F 2d 463 (CA. 9. 1967); New England Tank Industries, Inc, 133 NLRB 175, enfd. 302 F2d 273 (CA 1, 1962): Piasecki Aircraft Corporation, 123 NLRB 348. enfd 280 F.2d 575 (C.A 3, 1960), and Phelps Dodge Corp v. N L R B, 313 U.S 177. 10 Interstate 65 Corp d/b/a Continental Inn, 186 NLRB 248, enfd. in relevant part 453 F 2d 269 (C.A 6, 1971), cf Emerald Maintenance. Inc, 188 NLRB 867, and Columbus Janitor Service, 191 NLRB 902 GREENGATE MALL, INC. 47 regard to their desire to remain represented by Local 95, there would have been no occasion to question its concomitant obligation to bargain with that labor organi- zation."' Although the answer to the complaint denied the appropriateness of the unit alleged therein, no evidence or argument to the contrary was presented. 1 therefore find the following unit to be appropriate: All maintenance operating engineers of Respondent at its shopping center at the Greengate Mall, Route 30, Greensburg, Pennsylvania, excluding all other employees and guards, professional employees, and supervisors as defined in the Act. This is in effect the same unit as was certified by the Board in 1965 when Hattis was the employer. I therefore conclude and find that by failing and refusing on and after August 18, 1972, to recognize and bargain collectively with Local 95 as the certified representative of the employees in the appropriate unit, Respondent has violated Section 8(a)(5) and (1) of the Act. The complaint also alleges that Overly, Hadrovick, and Howley violated Section 8(a)(1) by (a) emphasizing to the Hattis employees the futility of their remaining affiliated with the Union; (b) by conditioning their employment on their withdrawal of membership in the Union; and (c) by promising them economic benefits to induce them to withdraw from the Union. The evidence amply supports the first two allegations. On various occasions, all three Greengate supervisors 12 made it clear to Frye, Kazousky, and McMunn that an essential condition for their employment was to disavow the Union as their representative. The evidence for the final 8(a)(1) allegation, the promise of benefits, is the statements of the Greengate supervisors to the engineers that the benefits which Greengate was offering would he better than those they were getting under the Hattis contract with Local 95. They did not tell them then what their hourly rates would be, since that had apparently not yet been set. Although it has been determined since the Supreme Court's decision in Burns, 406 U.S. 272 (1972), that a successor need not honor or adopt the bargaining agreement of its predecessor, the Board has thereafter held that there are circumstances under which the successor may be obligated to bargain with the representative of the predecessor's employees whom it has hired, before it fixes their initial wages and terms of einployment.13 In the cases where the Board has so held, the successor did in fact hire all or most of the predecessor's employees, and the Board therefore relied on the following language in the Burns decision for its finding that the successor must consult with the Union before it fixes the terms it proposes to set initially.14 In the instant case, it is true, Greengate did not "plan to retain" any of the Hattis employees, but only for 11 Barrington Plaza, supra, and K B & J. Young's Supermarkets, Inc, supra 12 1 find that Iladrov ck, an assistant mall manager for Rouse at other shopping centers was in fact a supervisor while on his 2-month tour of duty at Greengate He interviewed applicants for employment and his recom- mendations were certainly as effective as those of Howley, an admitted supervisor l i Howard Johnson Company, 198 NLRB No 98 and Good Foods discriminatory reasons. If it had not acted illegally in rejecting the Hattis engineers because they would not renounce their union, it would have hired them and the Union would have retained its majority status in the Greengate work force of maintenance engineers. It follows from the rationale of the Board cases cited in footnote 13 that a successor violates Section 8(a)(5) by refusing to bargain with the representative of the employees whom he was obligated to hire, over their initial terms of employ- ment, and by making changes unilaterally in the wages and employee benefits they had received from the predecessor employer. I find therefore that by also offering the engineers benefits which it had not first discussed with their union, Respondent violated Section 8(a)(1). THE REMEDY Having found that the Respondent has committed certain unfair labor practices , I shall recommend that -it cease and desist therefrom and take affirmative action to restore the situation as nearly as possible to what it would have been absent the unfair labor practices. I have found that Respondent, if it had not been discriminatorily motivated, would have preferred to hire the nonsupervisory Hattis engineers over those it did employ. It appears, however, that for some periods of time after August 17, 1972, Respondent has operated with a working supervisor and two other engineers , while at other times, during parts of September and October 1972, it employed an additional engineer. Respondent was entitled in the first instance, to determine how many engineers it would employ, basing its decision on its business judgment, with regard to such factors as how much work it would be doing for the mall tenants under individual contracts, and whether the supervisor of the maintenance engineers would be required to do manual work of the same nature as those he supervised. On the basis of the record before me, I am unable to determine whether there are presently sufficient positions available for the three nonsupervisory engineers, and I shall therefore recommend that Respondent offer, in writing, immediate employment to as many of them as there are positions available, replacing its present nonsu- pervisory engineers who were hired as of August 17, 1972, or thereafter. If there are less than three positions to be filled, it shall offer them to the former Hattis engineers in the order of their seniority as it accrued with Hattis, placing those not thereby reached on a preferential hiring list to be called as further vacancies occur. I shall also recommend that Respondent make whole such employees for any loss they may have suffered as a result of the discrimination practiced against them, by paying to each an amount of money equal to what he would have earned at Greengate Mall, absent the discrimi- nation, from August 18. 1972, to a date 5 days after receipt of the offer of employment or to the date 5 days after Manufacturing & Processing Corporation, 200 NLRB No 86 Cf Hecker Machine, Inc, 198 NLRB No 161 11 "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." 406 U .S 272, 294-5 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receipt of an offer to place him on a preferential hiring list (for those for whom no position is presently available), less their respective net earnings during the backpay period, to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, plus interest at the rate of 6 percent per annum. 1 also recommend that Respondent bargain with Local 95, upon request, with respect to rates of pay, wages, hours, and other terms and conditions of employment for the appropriate unit of maintenance engineers, and make them whole for any benefits, including health, welfare, and pension payments earned by the employees and due to the Union, which were withheld by virtue of any unilateral changes Respondent may have instituted in the terms and conditions of employment, including those unilateral changes it made immediately upon its takeover from Hattis. Such payments shall be continued until Respondent negotiates in good faith with the Union to agreement or impasse.15 CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Operating Engineers, Local 95-95A, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All maintenance operating engineers of Respondent at its shopping center at the Greengate Mall, Route 30, Greensburg, Pennsylvania, excluding all other employees and guards, professional 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. 4. Since August 18, 1972, Local 95 has been the exclusive representative of all employees in the aforesaid bargaining unit within the meaning of Section 9(a) of the Act. 5. By failing and refusing, at all times since August 18, 1972, to bargain collectively with Local 95 as the exclusive representative of the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By implementing rates of pay, wages, hours, and other terms and conditions of employment without consulting with Local 95, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 7. By failing and refusing to employ the maintenance engineers who had been in the bargaining unit represented by Local 95, unless they would renounce their right to remain members in, and be represented by said union, Respondent has discriminated in regard to their hire or tenure of employment, and has thereby discouraged membership in a labor organization, within the meaning of Section 8(a)(3) of the Act. 8. By the foregoing conduct, by emphasizing to the maintenance engineers the futility of remaining affiliated with the Union, and by promising them economic benefits to induce them to renounce their union affiliation, Respondent has committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 75 My recommendations in this paragraph are patterned on the orders Manufacturing & Prrxessrng Corporation. supra which the Board issued in Howard Johnson ( ompany, supra, and Good Foods