United Maintenance & Manufacturing Co., Inc.

UNITED MAINTENANCE & MANUFACTURING CO. United Maintenance & Manufacturing Co., Inc. and United Steelworkers of America, AFL-CIO-CLC. Case 6-CA-6941 November 1, 1974 DECISION AND ORDER On the basis of a charge filed by United Steelwork- ers of America, AFL-CIO-CLC, hereafter referred to as the Union, on August 29, 1973, and an amend- ed charge filed on October 26, 1973, the General Counsel of the National Labor Relations Board, by the Acting Regional Director for Region 6, issued a complaint against United Maintenance & Manufac- turing Co., Inc., hereinafter referred to as Respon- dent, on October 29, 1973. The complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union and by unilaterally instituting changes in wag- es, hours, and terms and conditions of employment since on or about August 13, 1973. Respondent filed an answer to the complaint on November 8, 1973, in which it admitted certain of the allegations, but de- nied the commission of any unfair labor practices. On February 26, 1974, the parties entered into a stipulation to transfer this proceeding to the Board wherein they agreed that certain documents would constitute the entire record herein,' waived all imme- diate proceedings before an Administrative Law Judge, and submitted this case directly to the Board for it to make findings of fact and conclusions of law and issue its Decision and Order. On March 11, 1974, the Board approved the stipulation and set a date for the parties to file their briefs. Thereafter, briefs were timely filed by all the parties. The Board has considered the entire record herein, as stipulated to by the parties, as well as their briefs, and makes the following findings of fact and conclu- sions of law: 1. THE BUSINESS OF THE EMPLOYER United Maintenance & Manufacturing Co., Inc., is a West Virginia corporation engaged in the repair of mining equipment at a facility it operates in Morgan- town, West Virginia. During its first 5 months of op- eration, it performed services in the amount of $130,000 for companies each of which annually pro- duces and ships goods and materials valued in excess of $50,000 directly out of States wherein said enter- ' The parties agreed that the charge, amended charge, complaint, answer to the complaint, and the stipulation of facts constitute the entire record in this case 529 prises are located. The parties stipulated, and we find, that Respondent is, and at all times material herein has been, an employer engaged in commerce or an industry affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Union is, and at all material times has been , a labor organi- zation within the meaning of Section 2(5) of the Act 111. THE UNFAIR LABOR PRACTICES A. Facts Until March 28, 1973,2 United Electric & Machine Company, Inc. (hereinafter referred to as Electric), was engaged in the business of repairing mining equipment at the same facility now being utilized by Respondent. On January 3, the Union was certified as the exclusive bargaining representative of Electric's employees in the following unit: All production and maintenance employees, in- cluding truckdrivers and helpers, of the Employ- er at its Morgantown, West Virginia location; excluding office clerical employees and guards, professional employees and supervisors as de- fined in the Act. Thereafter, the Union and Electric engaged in col- lective-bargaining negotiations, but were unable to agree upon a contract. On March 28, all of the em- ployees went out on strike and commenced picket- ing. Although the strike and picketing continued into the summer, Electric hired no replacements. As of March 27, the day before the strike, Electric was utilizing 38 employees in the certified unit. Ap- proximately six of these employees worked under the supervision of Falbo, a part-owner of Electric, and the remaining employees worked under the supervi- sion of Lowell Cowell, who had no ownership inter- est in Electric. As described more fully below, after the transfer of ownership to Respondent, Cowell and his family became the sole shareholders and Falbo continued on as a supervisor without any ownership interest. In July 1973, Respondent was incorporated in West Virginina with Lowell Cowell, his wife, and his father as the sole shareholders. On August 7, Re- spondent purchased all of Electric's personal proper- ty, machinery, and equipment. On August 9, Respon- dent purchased all Electric's accounts receivable and 2 Hereinafter all dates refer to 1973 unless otherwise specified 214 NLRB No. 31 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work in progress, and arranged to take over the lease which Electric had on the real property. Even before the purchase and sale agreement de- scribed above had been consummated, however, Re- spondent, on August 6, offered employment to 21 of Electric's 38 striking employees by means of a form letter. That letter informed them, in essence, that Re- spondent would be opening at Electric's former worksite on August 13; it set out the names of Respondent's officers; and it requested individuals interested in working for the Company to call Lowell Cowell, Respondent's president and general manag- er. There was no indication in the letter as to what terms and conditions of employment Respondent in- tended to offer. Since Respondent intended to hire no more than 21 employees, it did not initially publi- cize its interest in hiring employees beyond sending out the letters to the individuals noted above, nor did it offer employment to any other individuals. On the morning of August 13, the date the Re- spondent planned to commence operations, only the supervisory personnel and clericals appeared for work; none of the individuals who were sent the let- ters described above presented themselves. That same day the Union requested Respondent to recog- nize and bargain with it. Respondent refused and has continued to refuse, giving as its reason that the Union has never been selected by its employees to represent them. Throughout this time, the Union continued its picketing. Since no employees appeared for work during the week of August 13, the only work performed that week was performed by supervisory personnel. How- ever, on August 18, Respondent succeeded in obtain- ing a temporary restraining order against the Union's continued picketing of its worksite from the Circuit Court of Monongalia County, West Virginia. The Union thereupon ceased its picketing while it ap- pealed the order. The following Monday, August 20, Respondent employed its first employee, an individ- ual who had not previously been employed by Elec- tric, at unilaterally instituted terms and conditions of employment which were more favorable in several respects than were those Electric had provided. In the days that followed, the Respondent hired more employees, some of whom had previously worked for Electric, and some of whom had not. Thus, by August 24, it had four employees, two of whom were former Electric employees (old) and two who were not (new); by August 28, it had 10 employ- ees, 7 old and 3 new; by August 31, it had 13 employ- ees, 8 old and 5 new; by September 7, it had 14 em- ployees, 9 old and 5 new;' and by September 21, 3 The day before, September 6, Respondent for the first time advertised in Respondent had hired 15 employees, 9 old and 6 new. On September 17, the Union was successful in get- ting the temporary restraining order against its pick- eting dissolved by the Supreme Court of Appeals of the State of West Virginia, and it consequently re- sumed its picketing on September 22.4 Thereafter, three of the Respondent's employees who had previ- ously worked for Electric, and one who had not, ter- nunated their employment. As a result, Respondent only had 11 "active" 5 employees as of September 23, 6 old and 5 new. From that date up until the time of the stipulation in this case, the breakdown of old and new employees was as follows: October 5 (6 old-6 new); October 9 (6-5); October 10 (6-6); October 23 (6-7); November 6 (6-8); November 19 (6-8); No- vember 26 (6-9); December 7 (6-8); January 7, 1974 (7-8); January 8, 1974 (8-8); January 30, 1974 (8-7). Meanwhile, on September 17, Respondent filed a petition seeking a Board election to determine if its employees wanted representation. However, on No- vember 6, the Acting Regional Director for Region 6 dismissed Respondent's petition on the ground that it was "blocked" by the complaint he had issued in the present proceeding. Respondent appealed the dis- missal of its petition to the Board, but the Board sustained the dismissal by telegraphic order dated December 27. B. Contentions of the Parties General Counsel and Charging Party contend that Respondent is a "successor employer" to Electric, that as such it succeeded to Electric's bargaining obligation, and that, by failing and refusing to bar- gain since on or about August 13, the Respondent violated Section 8(a)(5) and (1) of the Act. They fur- ther contend that since the Respondent clearly in- tended to fill its complement of employees with indi- viduals who had previously been employed by Elec- tric, for whom the Union had only recently been certified as exclusive bargaining agent. Respondent was obligated to consult with the Union before ef- fecting changes in the terms and conditions of em- ployment that had been provided by Electric; and the Morgantown newspapers for shop personnel to fill its intended comple- ment of 21 employees 4 The parties' stipulation of facts states that the Union's strike and picket- ing "was caused, continued and prolonged " by Respondent's refusal to rec- ognize and bargain and by its unilateral institution of different terms of employment General Counsel and Charging Party assert that the four employees whose employment was terminated on September 21 and 22 ceased working in sympathy with the Union's strike and out of respect for its resumed picketing, and therefore remained "employees" of Respondent We discuss that contention infra For our purposes here, we use "active" to distinguish those who continued working during the picketing from those, if any, who ceased their employment to support the Union's concerted activity UNITED MAINTENANCE & MANUFACTURING CO. 531 that by its failure to do so and by unilaterally insti- tuting different terms on August 20, Respondent in- dependently violated Section 8(a)(5) and (1) of the Act. And finally, General Counsel contends that the Respondent's aforementioned violations had the ef- fect of prolonging the existing strike, thereby trans- forming it into an unfair labor practice strike as of August 13. Charging Party separately argues that the Respon- dent committed an independent violation of Section 8(a)(1) in bypassing the Union and dealing with the employees individually in offering 21 of them em- ployment by means of the August 6 letter. Respondent essentially contends that it should not be held to have succeeded to the bargaining obliga- tions of the predecessor because, during the bulk of the time since it commenced operations, its work force has been made up primarily of new employees who have never expressed any desire to be repre- sented by the Union. agreement with Wackenhut. Of the 42 guards that had previously been employed by Wackenhut, Burns retained 27 and brought in 15 of its own guards from other locations. Shortly after Burns commenced op- erations, the union requested it to honor its contract with the predecessor, but Burns refused. The Su- preme Court reversed the Board's decision to the ex- tent that it held Burns to be bound by the predecessor's collective-bargaining agreement, but it enforced so much of the Board's decision as held Burns to have succeeded to the bargaining obligation of the predecessor. The Court stated: , . . where the bargaining unit remains un- changed and a majority of the employees hired by the new employer are represented by a re- cently certified bargaining agent there is little basis for faulting the Board's implementation of the express mandates of §8(a)(5) and §9(a) by ordering the employer to bargain with the in- cumbent union. [406 U.S. at 281.] C. Discussion and Conclusion We are faced with essentially two issues on the foregoing facts: (1) Were the nature of Respondent's operations and the indentity of its work force suffi- ciently similar to those of its predecessor, Electric, so as to have continued the Union's presumption of ma- jority status against Respondent under our "succes- sor employer" doctrine? and (2) did Respondent have an obligation to bargain with the Union, even prior to hiring any employees, with regard to its ini- tial terms and conditions of employment? For the reasons set forth below, we find that Re- spondent did succeed to the bargaining obligations of Electric, on and after August 28, when a majority of its complement of employees consisted of former Electric employees. However, we do not find that Respondent had any obligation to bargain with the Union over the initial terms of employment which it unilaterally instituted on August 20. 1. Successorship We take our guidance in this area from the Su- preme Couit's decision in N. L. R B v. Burns Interna- tional Security Services, Inc. 6 In that case, Burns took over a contract to perform security services which had previously been performed by Wackenhut. Only 4 months earlier the Board had certified the union as exclusive representative of the Wackenhut employees for purposes of collective bargaining, and the union had since negotiated a 3-year collective -bargaining 6 406 U S 272 (1972) We find the same considerations present in the case before us. The parties stipulated to the facts that the Respondent is performing the same operations, using the very same facilities, and serving some of the very same customers as Electric. Respondent, fur- ther, does not question the continued appropriate- ness of the certified unit. Finally, it is clear from the parties' stipulation that, at least from August 28 to October 5, a majority of the Respondent's employees were individuals who had previously worked in the certified unit of the predecessor.' The Respondent would have us distinguish the Burns case on grounds that (1) here the Union does not have an outstanding collective-bargaining agree- ment with the predecessor; (2) there was a substan- tial hiatus between March 28, when the predecessor's operations ceased as a result of the Union's strike, and August 13, when Respondent commenced oper- ations; (3) here Respondent did not employ a majori- ty of the predecessor's employees; and (4) it was only for a few days that a majority of its own employee complement consisted of former Electric employees. We will discuss these contentions seriatim. The fact that the Union here did not have a collec- 'General Counsel and the Union assert that former Electric employees also remained in the majority after October 5, inasmuch as three former Electric employees ceased their employment on September 21 and 22 in sympathy with the Union's cause and out of respect for the Union's picket line which was reestablished on September 22, and that these individuals therefore retained their status as "employees" of the Respondent The Charging Party further asserts that a fourth employee, who had not previ- ously worked for Electric but was a brother of one of the three employees referred to immediately above , also ceased work on September 21 in sympa- thy with the Union's cause Although the Respondent does not challenge these assertions, they are not a part of the stipulated record, and we cannot therefore properly consider them 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive-bargaining agreement with Electric at the time Respondent took over does not relieve the Respon- dent of the obligation to bargain. As the Court stated in Burns: 8 "The source of its duty to bargain with the union is not the collective-bargaining contract but the fact that it voluntarily took over a bargaining unit that was largely intact and that had been certi- fied within the past year." Here, Respondent, on and after August 28, employed more than a majority of its substantially complete work complement out of the predecessor's work force, and otherwise contin- ued substantially the same operations. Under these circumstances, the Board has long held, for reasons of stability in industrial relations, that the presump- tion of the Union's continuing majority status during its certification year remains operative and that the new employer or successor-employer has the same bargaining obligations as the predecessor during this period. As the Supreme Court noted with approval in Burns, 406 U.S. at 279: It has been consistently held that a mere change of employers or of ownership in the employing industry is not such an "unusual circumstance" as to affect the force of the Board's certification within the normal operative period if a majority of employees after the change of ownership or management were employed by the preceding employer. [Citations omitted.] We further find no significance in the fact that Electric had not been operating for approximately 4-1/2 months when the Respondent took over opera- tions. It is true that the Board has sometimes relied upon a substantial hiatus between the termination of the predecessor's operations and the commencement of the new employer's operations in finding that the new employer did not succeed to the predecessor's obligation to bargain.' But in those cases the hiatus arose in the context of the predecessor's ceasing op- erations for economic reasons (frequently because it had failed financially and had fallen into the hands of creditors), whereupon the business was purchased by a new employer who commenced operations after having made, or while in the process of making, sub- stantial changes in the management and organiza- tion, product line, equipment, or customers of the predecessor's operations. In those cases, then, the Board relied on the hiatus in operations as one of many factors pointing to such a substantial transfor- mation in the nature of the predecessor's operations that a real question was presented, by the combina- tion of circumstances, as to the employees' desires with regard to representation. That a hiatus in opera- tions is ordinarily material only where there have been substantial other changes is reflected in cases where the hiatus in operations was even greater than that present here, and yet the Board found that the new employer succeeded to the obligations of the predecessor because operations were continued by the new employer substantially unchanged.1° Unlike the cases referred to above in which the Board relied on a hiatus in operations as one of many factors in finding that the new employer could reasonably question the union's continuing represen- tative status, we see nothing in the circumstances of the hiatus here which would provide any basis for challenging the Union's majority status during the term of the certification year. Here the hiatus result- ed from the employees' strike, not from the Employer's decision to cease operations. In the latter situation the employees' desires with regard to repre- sentation under the new employer may be ambigu- ous at best, particularly where the new employer has instituted changes in operations. However, where, as here, the hiatus in operations was caused by a strike in which the vast majority of employees participated, it is clear that throughout the term of the strike the Union still enjoyed the support of the employees. This is especially true in this case where none of the 21 employees who were offered employment by Re- spondent on August 6 accepted it and returned to work prior to the state court's injunction against the Union's picketing. In view of the foregoing, and es- pecially since operations under Respondent contin- ued substantially unchanged and the certified unit remained intact, we find nothing in the circum- stances of the hiatus here which provides any basis for the Respondent to question the Union's represen- tative status during the operative period of the certifi- cation year." Respondent's reliance on the fact that it did not retain a majority of the predecessor's employees is also misplaced. Under circumstances, as here, where the new employer continues operations substantially unchanged and the bargaining unit continues intact, the Board has traditionally held that the new em- ployer succeeds to the predecessor's bargaining obli- gations when a majority of the new employer's work complement is determined to have come from the 8 406 U S. at 287 "o See e g , C G Conn , Lid, a wholly onned subsidiary of Cron ell Colher 'See, eg , Georgetown Stainless Mfg, Corp, 198 NLRB 234 (1972) (3- and MacMillan, Inc, 197 NLRB 442 (1972) ( where there was a complete week hiatus), Gladding Corporation, 192 NLRB 200 (1971) (over 2-month cessation of operations for approximately 4-1/2 months, and where subtitan- hiatus), Diamond National Corporation, 133 NLRB 268 (1961) (nearly 2- rally limited operations were engaged in for several additional months) month hiatus) " C G Conn, Ltd, supra UNITED MAINTENANCE & MANUFACTURING CO. predecessor's bargaining unit.12 And the Board has so found even in cases where the new employer com- menced operations on a substantially diminished scale and consequently employed less than a majori- ty of the employees in the predecessor's bargaining unit." Thus, under circumstances where operations under the new employer have not been changed in any substantial way, the standard for determining the new employer's obligations to bargain with the union representing the employees of the predecessor is not, as Respondent contends, the percentage of the predecessor's total complement that the new employ- er retains, but the percentage of the new employer's work force which had previously worked for the pre- decessor in the bargaining unit, 14 12 See generally Goldberg, The Labor Law Obligations of a Successor Em- ployer, 63 Nw U L Rev 735 (1969) at 793, fn 197, and accompanying discussion in text 13 See, e g , The Northwest Glove Co, Inc, 74 N LRB 1697 (1947) (work force reduced from 105 to 25), Krantz Wire & Mfg Co 97 NLRB 971 (1952) (work force reduced from 25 to 8 at time bargaining obligation held to have attached, although later increased to 25 again with the addition of 17 new employees), enfd sub nom N L R B v Albert Armato, 199 F 2d 800 (CA 7, 1952), Johnson Ready Mix Co, 142 NLRB 437 (1963) (work force reduced from 83 to 56, 36 of whom worked in the predecessor's bargaining unit), Rohlik, Inc , 145 NLRB 1236 (1964) (new employer's work force of between 35 and 40 employees constituted approximately one-third of predecessor's work force in bargaining unit), Western Freight Association, 172 NLRB 303 (1968) (work force reduced from 500 to 110 and yet the Board found new employer to have succeeded to the labor obligations of the predecessor) In the latter decision , the Board stated at 305 The acquisition of the physical assets of the predecessor by the succes- sor is not a determinative factor But, where the majority of the employ- ees hired by the employer are former employees of the predecessor, doing essentially the same work , a successor relationship obligating the suc- cessor to bargain with the representative of the predecessor's employees has been found even though the successor 's employee complement is smaller than its predecessor's [Footnotes omitted and emphasis sup- plied.] 14 However, one should not lose sight of the fact that the Board, in de- termining a new employer's obligation to bargain with the union which represented the predecessor 's employees, does not rely on any one factor exclusively, but looks to all the factors which might have any relevance on (I) the continuity of the employing industry, and (2) employees' desires with regard to continued representation Consequently the Board in certain cases has found that the new employer did not succeed to the bargaining obligation of the predecessor, even though the new employer hired most of its employees from the bargaining unit of the predecessor because other circumstances were present which provided grounds for questioning the union's majority status or the continuity of the employing industry See, e g , Atlantic Technical Services Corporation, 202 NLRB 300 (1973), enfd 86 LRRM 2182 (C A D.C, 1974) (where the new employer took over only a minuscule part of the predecessor's bargaining unit, and these employees never had an opportunity to express themselves on union representation because they had been accreted into the larger bargaining unit by agreement of the parties), Lincoln Private Police, Inc, as Successor to Industrial Security Guards, Inc, 189 NLRB 717 (1971) (where the Board found, after consider- ing all the circumstances of the new employer's operations , that the new employer was operating an entirely new and independent business enter- prise) in this latter case, the Board stated at 720 While we do not mean to imply by our decision herein that succes- sorship can never be found where the new employer acquires less than the predecessor's entire business, or hires less than a majority of the predecessor employer's workforce-indeed the Board has held other- wise in prior cases [Footnote omitted]-we do require in such circum- stances that other sufficient criteria exist which, in balance, warrant a finding that there has been no basic change in the employing industry 533 Although the Court was not presented the issue in Burns, since the number of former Wackenhut em- ployees retained by Burns sat(sifted both standards, it is clear that the Court was using as its standard the relative composition of the work force actually hired by the new employer. Thus, the Court stated at 406 U.S. at 281: But where the bargaining unit remains un- changed and a majority of the employees hired by the new employer are represented by a recently certified bargaining agent there is little basis for faulting the Board's implementation of the ex- press mandates of §8(a)(5) and §9(a) by ordering the employer to bargain with the incumbent union [Emphasis supplied.] And the Court stated at 406 U.S. at 279: It has been consistently held that a mere change of employers or of ownership in the employing industry is not such an "unusual circumstance" as to affect the force of the Board's certification within the normal operative period if a majority of employees after the change of ownership or man- agement were employed by the preceding employer. [Emphasis supplied.] Further evidence that the Court was using the new employer's work complement in determining whether sufficient former unit employees have been retained to require the new employer to bargain with the certi- fied bargaining representative comes in the context of the Court's discussion of when a new employer has an obligation to bargain over the fixing of its initial terms. Thus, the Court stated that ordinarily a new employer is free to set initial terms on which it will hire the employees of a predecessor, and ex- plained why in the very next sentence at 406 U.S. at 295: . . , it may not be clear until the successor em- ployer has hired his full complement of employ- ees that he has a duty to bargain with a union, since it will not be evident until then that the bargaining representative represents a majority of the employees in the unit as required by §9(a) of the Act. . . . On the other hand, where as in the present case there has been no substan- tial change in the employing industry and the only real change is in the size of the employee complement, we see no reason to require the bargaining representative to prove its majority status anew where the new employer retains as a majority of its smaller work complement, employees from the predecessor's bargaining unit and where, as here , it is still within the certifi- cation year N L R B v Albert Armato and Wire & Sheet Metal Spec ialti Co, 199 F 2d 800 (C A 7. 1952), Makela Welding, Inc, and Kemp Welding, Inc v N L R B 387 F 2d 40 (C A 6, 1967), enfg 159 NLRB 964 (1966) 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is clear from the context that the "majority" there referred to by the Court was to be determined from the new employer's work complement,15 Finally, Respondent's contention that it was only for a few days after August 28 that a majority of its 15 See N L R B v Polytech, Incorporated, 469 F 2d 1226. 1230 (C A 8, 1972), enfg 186 NLRB 984 (1970) In his dissent , Member Kennedy relies to a large extent on certain language by the Supreme Court in its decision in Howard Johnson Company v Detroit Local Joint Executive Board Hotel and Restaurant Employees and Bartenders, International Union, AFL-CIO, 94 S Ct 2236, 2244, (1974), which seems on its face to suggest that the Court requires that a majority of the predecessor's employees be retained by the new employer in order for there to be sufficient continuity in the identity of the business entity for the new employer to be held to the predecessor's labor obligations However, the Court there was addressing itself to labor obligations under Sec 301, relating to the circumstances under which a new employer will be held bound by the grievance- arbitration clause in the predecessor's contract The Court itself said in that same decision at 2243 In 9 The question whether Howard Johnson is a "successor" is simply not meaningful in the abstract Howard Johnson is of course a successor employer in the sense that it succeeded to operation of a restaurant and motor lodge formerly operated by the Grissoms But the real question in each of these "successorship" cases is, on the particular facts, what are the legal obligations of the new employer to the employees of the former owner or their representative The answer to this inquiry re- quires analysis of the interests of the new employer and the employees and of the policies of the labor laws in light of the facts of each case and the particular legal obligation which is at issue , whether it be the duty to recognize and bargain with the union , the duty to remedy un- fair labor practices, the duty to arbitrate , etc There is, and can be, no single definition of "successor" which is applicable in every legal con- text A new employer, in other words, may be a successor for some purposes and not for others Thus, while the Court may have been indicating in its Howard Johnson decision that it will require a showing that a majority of the predecessor's employees have been retained by the alleged successor before it will hold a new employer to be bound by an arbitration clause in the predecessor's contract, we do not read that decision as announcing a departure from the differing requirement applicable to determining the existence of a duty to bargain Nothing in Howard Johnson indicates a disposition on the part of the Court to depart from its Burns doctrine in which the Court found a continuing duty to bargain "if a majority of employees after the change in ownership or management were employed by the preceding employer" It is worth noting in this regard that in Burns the Court did not impose contrac- tual obligations on the successor , just as it did not impose contractual arbi- tral requirements on the employer in Howard Johnson It nevertheless did impose a duty to bargain in Burns, as we are doing here In our view, such a distinction is supportable, in that the entrepreneurial considerations which the Court gave great weight in Burns may well have been deemed sufficient- ly important so as to militate against imposing a full set of contractually inherited requirements on the new owner or operator of a business except in very limited kinds of cases Yet the statutory policies favoring employee rights to be represented collectively may well be construed by the courts- and surely by this Board whose duty it is to implement those facets of public policy-to be more significant than considerations of purely private con- tract law Thus the somewhat less stringent requirement of Burns seems to us quite properly to be the appropriate one for deciding representational rights, even though the Court has established a more stringent test for determining con- tractual rights in a Sec 301 proceeding See also Zim's Foodliner, inc v N L R.B, 495 F 2d 1131 (C A 7, 1974) We would also distinguish N L R B v John Stepp's Friendly Ford, Inc 338 F 2d 833 (C A 9, 1964), and International Association of Machinists District Lodge 94, AFL-CIO, v N L R B, 414 F 2d 1135 (C A D C. 1969), cited by Member Kennedy in his dissent Unlike the circumstances here in both of those cases the new employer 's work complement was not composed of a majority of employees that had come from the predecessor's bargaining unit work complement was composed of former Electric employees is contradicted by the facts stipulated to by the parties. From the data provided therein relat- ing to dates of hire and termination of the employees who had previously worked for Electric and those who had not, it is clear that, at least from August 28 to October 5, a majority of Respondent's work com- plement had previously worked in the Electric certi- fied bargaining unit. Moreover, even assuming, ar- guendo, that the Respondent's work force composi- tion changed on and after October 5, that would still not affect our determination to issue a bargaining order to remedy Respondent's unlawful refusal to bargain before that time. Consequently, we find that Respondent succeeded to the bargaining obligations of Electric on and after August 28, when a majority of its work force was composed of former Electric employees from the cer- tified unit.16 2. Prior obligation to bargain While we have found above that Respondent satis- fied all the requisite elements for succeeding to the bargaining obligations of Electric at least by August 28, there remains the issue of whether Respondent had any obligation to bargain with the Union even prior to that date. The complaint alleges Respondent to have succeeded to the bargaining obligations of the predecessor since on or about August 13, the date which Respondent announced, in its letter to the 21 employees, that it intended to commence operations, and the same date on which the Union requested Respondent to bargain. Accordingly, the complaint alleges that Respondent violated Section 8(a)(5) and (1) of the Act in refusing to bargain with the Union since that date, and by subsequently instituting its initial terms and conditions of employment without first consulting with the Union." For the reasons de- veloped below, we find that Respondent had no obli- gation to bargain prior to August 28. In the context of discussing a new employer's obli- gation to bargain over the setting of initial terms, the Supreme Court in Burns gave us some general guide- lines as to when the bargaining obligation attaches: 16 Mahela Welding, Inc, and Kemp Welding, inc, 159 NLRB 964 (1966), enfd 387 F 2d 40 (C A 6, 1967), where the Board found the new employer to have succeeded to the bargaining obligations of the predecessor under circumstances similar to those present here 17 As noted earlier, Charging Party additionally contends that Respon- dent independently violated Sec 8(a)(1) of the Act by its conduct on August 6 in sending the form letter offers of employment to 21 of the striking 38 Electric employees It vigorously contends that this conduct bypassed and undermined the Union However since this contention goes beyond the allegations in the complaint , we cannot properly consider it UNITED MAINTENANCE & MANUFACTURING CO Although a successor employer is ordinarily free to set initial terms on which it will hire the employees of a predecessor, there will be in- stances 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. In other situations, however, it may not be clear until the successor employer has hired his full complement of employees that he has a duty to bargain with a union, since it will not be evident until then that the bargaining representative rep- resents a majority of the employees in the unit as required by §9(a) of the Act, 29 U.S.C. § 159(a). [406 U.S. 272 at 294-295.] We recently had occasion to consider these stan- dards in Spruce Up Corporation 11 and Anita Shops, Inc., d/b/a Arden's.19 In Arden's, the new employer announced to the employees of the predecessor about 2 weeks prior to takeover that it had purchased the operations and that it intended to retain them as its own employees. A few days prior to takeover the new employer addressed a letter to the union repre- senting the predecessor's employees, wherein it indi- cated its intention to retain the predecessor's employ- ees and recognize and bargain with the union upon being requested to do so. The new employer further indicated in its letter, however, that it was not legally obligated to adopt the terms of the predecessor's con- tract and that, pending negotiations, it would install the terms and conditions of employment that it had in effect at other locations. The union did not receive the letter until the date of takeover, and did not re- spond until some 2 weeks later when it requested the new employer to continue in effect the terms prevail- ing under the predecessor. On the date of takeover, the new employer, consistent with its announced in- tention as set out in its letter to the union, offered each employee, as he appeared for work, employ- ment under its prevailing terms of employment (which were less favorable to the employees than those prevailing under the predecessor) on a take-it- or-leave-it basis. All the employees accepted. On those facts, a majority of the Board held that the new employer was free to institute the new terms of employment on the date of -takeover without bar- gaining with the union. In so concluding, the majori- ty considered it significant that the new employer had not committed itself or misled the employees into believing that it would continue the terms and 18 209 NLRB 194 (1974) i9 211 NLRB 501 (1974) 535 conditions of the predecessor. Therefore, the majori- ty reasoned, the new employer was not changing terms, but instituting its initial terms, as it was free to do unilaterally since the union had not requested it to bargain up till that point.20 In Spruce Up, the successor-employer told the union, almost a month before it was scheduled to take over operations, that it intended to retain all of the incumbent employees, but at the same time told the union that it intended to provide less advanta- geous commission rates. The great bulk of the incum- bent employees refused to accept employment on those terms, and instead commenced picketing. The successor eventually filled out his work complement with former employees who crossed the picket lines and other individuals who had not worked for the predecessor. The majority of the Board held that the new employer had not committed any violation in setting its initial terms without consulting with the union, since only subsequently did it become clear that a majority of its work force would be composed of individuals who had worked in the certified bar- gaining unit of the predecessor. The Board majority stated there Although, at the February meeting, Fowler [the new employer] expressed a general willing- ness to hire the barbers employed by the former employer, he at the same time indicated that he was going to be paying different commission rates. Fowler thereby made it clear from the out- set that he intended to set his own initial terms, and that whether or not he would in fact retain the incumbent barbers would depend upon their willingness to accept those terms. When an em- ployer who has not yet commenced operations announces new terms prior to or simultaneously with his invitation to the previous work force to accept employment under those terms, we do not think it can fairly be said that the new em- ployer "plans to retain all of the employees in the unit," as that phrase was intended by the Supreme Court. The possibility that the old em- ployees may not enter into an employment rela- tionship with the new employer is a real one, as illustrated by the present facts. Many of the for- mer employees here did not desire to be em- ployed by the new employer under the terms set by him-a fact which will often be operative, and which any new employer must realistically anticipate. Since that is so, it is surely not "per- fectly clear" to either the employer or to us that 20 Member Fanning, though agreeing with the result in Arden 's, did so for different reasons Member Penello , for the reasons set forth in his dissent would have found a refusal to bargain concerning initial terms and condi- tions of employment 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he can "plan to retain all of the employees in the unit" under such a set of facts. Applying the above precedent to the facts here, we find that here, as much as in Spruce Up, it would be pure speculation to say that, without question, a suf- ficient number of those offered employment would have accepted it, so as to have established the Union's continuing representative status, but for Respondent's refusal to recognize and bargain with the Union. True, here there was no indication that Respondent intended to condition employment on the acceptance of less favorable terms, as was the case in Spruce Up. But here it is equally clear that the employees would not accept an offer of the same terms of employment provided by the predecessor, as evidenced by the fact that they had been striking the predecessor for over 4 months in order to improve those terms. Indeed, the very duration of the strike makes it likely that some of the 21 individuals of- fered employment may no longer have been avail- able for employment for one reason or another. Nor is there any evidence that Respondent's im- proved terms, initiated on August 20, were any more acceptable to the striking Electric employees. Thus, there is no indication in the record whatsoever that the only reason the Union continued its picketing was because Respondent refused to recognize and bargain with it. Instead, it seems likely that Respondent's improved terms on August 20 went only part of the way in meeting the Union's demands against the predecessor, Electric, which resulted in the original strike. For the foregoing reasons, we do not believe that there is sufficient evidence here that a majority of the predecessor's employees would unquestionably com- pose Respondent's work force at any time prior to August 28, when it actually hired a majority, and we therefore do not find that Respondent had any obli- gation to bargain prior to that date. Similarly, as in Arden's, supra, there is no evidence that Respondent changed the terms and conditions of employment, which we have already found it was free to set on August 20, at any time after its obligation to bargain with the Union attached on August 28. Accordingly, we shall dismiss so much of the complaint as alleges that Respondent was obligated to bargain with the Union when the Union requested it to do so on Au- gust 13, and was obligated to consult with the Union prior to establishing its initial terms on August 20.21 2i Members Fanning and Penello would also find that Respondent was obligated to bargain with the Union when it was requested to do so on and after August 13 including bargaining over the initial terms of employment offered by Respondent Under their interpretation of the applicable Burns "plans to retain" language, excerpted above, they would find a successor IV. REMEDY Having found that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union on and after August 28, 1973, we shall order it to cease and desist therefrom and, affirmatively, to bargain with the Union upon request. General Counsel contends that the employees' economic strike against Electric was transformed into an unfair labor practice strike against Respon- dent by Respondent's unlawful refusal to recognize and bargain with the Union. When faced with a simi- lar contention in Spruce Up Corporation, supra, we employer obligated to bargain with the representative of the predecessor's employees as soon as it manifests an intent to look primarily to the predecessor's unit employees to fill its work force For a more detailed exposition of their individual positions, see their separate dissents in Spruce Up Corporation, supra and their dissent in The Boeing Company. 214 NLRB No 32 ( 1974) Notwithstanding their disagreement here with the decision's failure to find Respondent obligated to bargain with the Union over the initial terms of employment on and after August 13, and to provide an appropriate remedy therefor, they join in the remedy provided since they do not have a majority for their position Like Chairman Miller and Member Jenkins, Members Fanning and Pe- nello disagree with Member Kennedy that successor status depends on whether a majority of the predecessor's employees are retained by the suc- cessor However, they believe, as the Court said in Howard Johnson, supra, that successorship "requires analysis of the interests of the new employer and the employees and of the policies of the labor laws in light of the facts of each case and the particular legal obligation which is at issue ," and that employee complement is but one factor among many to be considered Accordingly, they do not believe that in every case there must be an abso- lute majority of the predecessor's employees before a duty to bargain can be found See their separate dissents in Spruce Up Corporation, supra, and their dissent in Boeing. supra, Polytech, Incorporated, 186 NLRB 984 (1970), enfd 469 F 2d 1226 (C A 8 1972) Chairman Miller and Member Jenkins interpret the Supreme Court's lan- guage in Burns as requiring more than a mere showing of a manifestation of intention on the part of the new employer to retain all the former unit employees they interpret this language in context as also requiring that there he some substantial likelihood that those offered employment will accept it on the terms offered by the new employer See their positions as expressed in the majority decision in Spruce Up Corporation, supra Their reason for so interpreting Burns to require that this additional element be present is that they do not believe the Supreme Court intended to impose on the new employer an obligation to bargain prior to takeover under circum- stances where, after takeover, the new employer has actually hired less than a majority of its work force from the predecessor's complement For pre- sumably in the latter situation the new employer would not have an obliga- tion to bargain after its employee complement has been established, since the presumption of the continuing majority status of the union has been lost by the relative makeup of its work force Consequently any prior bargain- ing would arguably be subject to attack under Sec 8(a)(2) of the Act, since it would amount to recognition and bargaining with a union which did not have majority status or even the presumption of same with respect to the employer's "employees - Accordingly, Chairman Miller and Member Jenkins are of the view that the only useful standard for determining a new employer's obligation to bargain with the representative of the predecessor's employees prior to com- mencing operations is on the basis of (I) how many employees of the prede- cessor are not only offered employment by the new employer but actually accept it thereby becoming the new employer's "employees" for purposes of Sec 8(a)(5) of the Act (see Member Jenkins' partial dissent in ChentrocA Corporation, 151 NLRB 1074, 1085 (1965) ), and (2) from the date when a sufficient number of the former unit employees who have been offered em- ployment, clearly manifest their acceptance of same and their availability for work, so that from that date it is clear that a majority of the employer's work complement will be composed of former unit employees UNITED MAINTENANCE & MANUFACTURING CO adopted the Administrative Law Judge's recommen- dation that the individuals who had withheld their services from the new employer could not be treated as unfair labor practice strikers because they had never become "employees" of the new employer." Although in Spruce Up we ultimately ordered the re- spondent to offer immediate reinstatement to certain of the former employees who had previously uncon- ditionally offered to return to work (on the rationale that these employees would have been offered em- ployment and clearly would have accepted it were it not for the respondent's unlawful refusal to bargain), such a remedy is not warranted here since there is no evidence that any of the 21 former Electric employ- ees offered employment by Respondent ever ten- dered an unconditional offer to return to work.23 CONCLUSIONS OF LAW 1. United Maintenance & Manufacturing Co., Inc., is an employer engaged in commerce or opera- tions affecting commerce within the meaning of the Act. 2. Since January 3, 1973, the Union has been the exclusive representative of the following employees pursuant to Board certification: All production and maintenance employees, in- cluding truckdrivers and helpers, of the Employ- er at its Morgantown, West Virginia location; excluding office clerical employees and guards, professional employees and supervisors as de- fined in the Act. 3. On and after August 28 , 1973, United Mainte- nance succeeded to the bargaining obligations of its predecessor, United Electric & Machine Company, Inc., under the foregoing certification , and has since that date violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union as the exclusive representative of its employees in the 22 We leave to the compliance stage of this proceeding any issue with regard to the four employees who allegedly withheld their services from Respondent out of respect for the Union's resumed picketing on September 22. These employees would of course be entitled to reinstatement upon their unconditional offer to return to work if it is established that they terminated their employment in support of the Union 's concerted activity since they would then have taken on the status of unfair labor practice strikers 23 Members Fanning and Penello would order Respondent to offer rein- statement to the 21 employees to whom it originally offered employment on August 6 As noted earlier, they believe that Respondent was obligated to recognize and bargain with the Union when the Union requested it to do so on August 13 and, accordingly , they believe that, had Respondent honored its bargaining obligation, the 21 former Electric employees offered employ- ment would have accepted it and returned to work For the same reasons. Members Fanning and Penello would also order Respondent to place the names of the 17 employees not offered employment on August 6 on a pref- erential hiring list 537 above-described unit. 4. The foregoing is an unfair labor practice affect- ing commerce within the meaning of the Act. 5. All other complaint allegations, not specifically found above, are hereby dismissed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board hereby orders that the Respondent, United Maintenance & Manufacturing Co., Inc., Morgantown, West Virginia, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Steelworkers of America , AFL-CIO-CLC, as the ex- clusive bargaining representative of the following unit. All production and maintenance employees, in- cluding truckdrivers and helpers, of the Employ- er at its Morgantown, West Virginia location; excluding office clerical employees and guards, professional employees and supervisors as de- fined in the Act. (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, loin, or assist the above-named Union, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities guaranteed by Section 7 of the Act, 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 employ- ees in the unit defined above with respect to wages, hours, and other terms and conditions of employ- ment and, if an agreement is reached, embody it in a signed contract. (b) Post at its Morgantown, West Virginia, plant copies of the attached notice marked "Appendix. 24 Copies of said notice, on forms provided by the Re- gional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by 24 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 - 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) 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. MEMBER KENNEDY, dissenting: I do not believe Respondent was obligated to bar- gain with the Union because "there was plainly no substantial continuity of the identity in the work force" after Respondent began operation of the plant. Howard Johnson Company v. Detroit Local Joint Executive Board, Hotel and Restaurant Employ- ees and Bartenders, International Union, AFL-CIO, 94 S.Ct. 2236 (1974). In the Howard Johnson case, the Supreme Court held inapplicable its decisions in Wiley 25 and Burns 26 to a situation in which the new operator hired only 9 of a total of 53 employees of the predecessor. Under such circumstances, the Court held that the new em- ployer could not be compelled to arbitrate by the union representing the predecessor's employees. Un- like dissenting Justice Douglas, the majority found no significance in the fact that the "business contin- ued without interruption at the same location, offer- ing the same products and services to the same pub- lic, under the same name and in the same manner, with almost the same number of employees." The majority opinion stated (94 S.Ct. at 2244): This continuity of identity in the business enter- prise necessarily includes, we think, a substantial continuity in the identity of the work force across the change in ownership. The Wiley Court seem- ingly recognized this, as it found the requisite continuity present there in reliance on the "wholesale transfer" of Interscience employees to Wiley. Ibid. This view is reflected in the empha- sis most of the lower courts have placed on whether the successor employer hires a majority of the predecessor's employees in determining the le- gal obligations of the successor in §301 suits un- der Wiley. [Footnote omitted.] This interpreta- tion of Wiley is consistent also with the Court's concern with affording protection to those em- ployees who are in fact retained in "the transl- tion from one corporate organization to anoth- er" from sudden changes in the terms and con- ditions of their employment, and with its belief that industrial strife would be avoided if these employees' claims were resolved by arbitration rather than by "the relative strength . . . of the contending forces." 376 U.S., at 549, 84 S.Ct., at 914, quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 580.. . (1960). At the same time, it recognizes that the employees of the terminating employer have no legal right to continued employment with the new employer, and avoids the difficulties inher- ent in the union's position in this case. This holding is compelled, in our view, if the protec- tion afforded employee interests in a change of ownership by Wiley is to be reconciled with the new employer's right to operate the enterprise with his own independent labor force. Since there was plainly no substantial continuity of identity in the work force hired by Howard Johnson with that of the Grissoms, and no express or implied assumption of the agreement to arbi- trate, the courts below erred in compelling the Company to arbitrate the extent of its obligations to the former Grissom employees. Accordingly, the judgment of the Court of Appeals must be reversed. [Emphasis supplied.] Reversed. Turning to the facts in the instant case, it appears that Respondent never had in its employ more than 9 of the 38 former employees of Electric at any time prior to the hearing.27Plainly there is no substantial continuity of identity in the work force hired by Re- spondent with that of the predecessor Electric. There is no substantial continuity of identity of the work force when the new employer hires a small mi- nority of the predecessor's employees. Respondent's work complement has never comprised as much as 27 The record reflects the following with respect to Respondent's employ- ment complement of employees on various dates August 24 4 employees, 2 old and 2 new August 28 10 employees, 7 old and 3 new August 31 13 employees, 8 old and 5 new September 7 14 employees, 9 old and 5 new September 21 15 employees, 9 old and 6 new September 23 11 employees, 6 old and 5 new October 5 12 employees, 6 old and 6 new October 9 11 employees, 6 old and 5 new October 10 12 employees, 6 old and 6 new October 23 13 employees, 6 old and 7 new November 6 14 employees, 6 old and 8 new November 19 14 employees, 6 old and 8 new November 26 15 employees, 6 old and 9 new December 7 14 employees, 6 old and 8 new 25John Wiley & Sons, Inc, v Livingston, 376 U S 543 (1964) January 7 January 8 15 employees, 7 old and 8 new 16 employees 8 old and 8 new 26 N L R B v Burns International Security Services, Inc, 406 U S 272 January 30 15 employees, 8 old and 7 new (1972) UNITED MAINTENANCE & MANUFACTURING CO. 539 25 percent of the former employees of Electric. In Howard Johnson, the Supreme Court emphasized that there was a successor obligation in Wiley because of "the wholesale transfer of Interscience employees to Wiley." In the instant case, there has been no "wholesale transfer" of Electric's employees to Re- spondent. The similarities in the mathematics of this case and Howard Johnson compel us to follow the Howard Johnson decision. That decision is in accord with earlier precedent. Judge Leventhal of the Circuit Court of Appeals for the District of Columbia has observed that: "The cases involving the presumption of full majority status for a certified union are pri- marily instances where the purchasing enterprise has retained all or most of the old employees." 28 The ninth circuit refused enforcement of John Stepp's Friendly Ford, Inc., 141 NLRB 1065 (1963), enfd. 338 F.2d 833, 836 (1964). There the new employer hired only 3 employees of the former employer in a unit of 12 salesmen . The court ruled that the certification did not survive the change in ownership. The per- centage of the old employees retained by the new operator in John Stepp's is approximately the same as in the instant case. My colleagues concede in footnote 15 that the Howard Johnson decision "seems on its face to sug- gest that the Court requires that a majority of the predecessor's employees be retained by the new em- ployer" to justify imposition of a bargaining obliga- tion on Respondent. They decline to apply that deci- sion to the instant case because the successorship question there arose under Section 301 of the Act. I do not perceive the logic in the distinction which my colleagues find "supportable." The distinction adopt- ed by my colleagues is contrary to the views ex- pressed by this Board during the past 2 decades. As I pointed out in footnote 17 of my opinion in Spruce Up Corporation, 209 NLRB 194 (1974), Member Fan- ning correctly stated in a 1967 speech to the Texas Bar Association that in deciding whether the "em- ploying industry" remains the same the Board relies on a set of criteria which includes "(3) whether he has the same or substantially the same work force." Why does this Board now decide to eliminate this criteria in deciding successorship in unfair labor practice cases when the Supreme Court found it to be decisive in Section 301 litigation? In our recent decision in Georgetown Stainless Mfg. Corp., 198 NLRB 234 (1972), we affirmed the dis- missal of the complaint by the Administrative Law Judge. We did not disavow the statement of the Ad- ministrative Law Judge who set forth that the Board has evolved over the years a set of criteria for resolv- ing successorship issues which includes whether the new employer "has the same or substantially the same work force." 29 Manifestly, in Howard Johnson the Supreme Court adopted the same test for Section 301 actions that the Board has traditionally applied in unfair labor practice cases. Nor do I believe the Supreme Court's decision in Burns supports the conclusion of my colleagues here- in. The Court's conclusion in Burns rested on the finding that Burns' Lockheed work force of 42 em- ployees consisted of 27 guards who had formerly been employed by Wackenhut. On page 8 of its peti- tion for a writ of certiorari, the Board urged that "an employer who takes over the business of another em- ployer, and continues to operate it in essentially the same manner with a large proportion of the former em- ployees, is a `successor' employer for purposes of the National Labor Relations Act." (Emphasis supplied.) The composition of the work force in Burns was such that the Supreme Court's decision cannot be con- strued as sanctioning a bargaining order where, as here, the new employer's work force includes a small minority of the former employees. There is no evidence in this record tending to prove that the Union has been selected by a majority of Respondent's employees to represent them. No one knows how any of the nine former Electric em- ployees voted in the earlier Board election. The so- called expertise of this Board provides no basis for it to assume, surmise, or presume that all or any of the nine former employees supported the Union. The Board has dismissed the representation petition which would have provided the employees an oppor- tunity to express their desires in a secret ballot elec- tion. There is no claim that the Employer has en- gaged in any conduct which would have prevented the employees from making a free choice. I have previously indicated that, where substantial- ly all of the former employees are hired by a new owner, it is proper for this Board to presume that the ratio of union supporters to nonunion employees af- ter the change of ownership remains the same as be- fore the change.30 But where the new operator hires less than 25 percent of the former employees and they are crossing the union's picket line to report to work, there is no reason to assume that the union enjoys majority support among the employees of the new employer. 29 On p 6 of his sl op , the Administrative Law Judge listed the same seven criteria for determining successorship that the Board has incorporated in its enforcement briefs for years For example , see the Board's brief to the ninth circuit in Golden State Bottling Co, et at, Nos 71-1290 and 71-1324, p 11, brief to the second circuit in the William J Burns International Detet- nve Agency, Inc, No 34889. p 17 28 International Association of Machinists, District Lodge 94, AFL-CIO v 30 See my concurrence and dissent in Spruce Up Corporation. 209 NLRB NLRB , 414 F 2d 1135 (1969) 194 540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In my opinion, no statutory policy is implemented by a bargaining order since there is no basis for find- ing that the Union represented a majority of the em- ployees after the change in ownership. My colleagues ignore the statutory policy banning recognition of a minority union. International Ladies' Garment Work- ers' Union, AFL-CIO v. N.L.R.B., 366 U.S. 731 (1961). It is not the prerogative of this Board, under the guise of effectuating statutory policy, to choose a union as bargaining representatives for employees. The statute guarantees employees the right to make the choice and it does not empower this Board to make the choice for them. Since there was not a substantial continuity of identity in the work force after the change in opera- tions, Respondent was not obligated to bargain with the Union, and the complaint should be dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the purposes of the National Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain collectively with United Steelworkers of America, AFL- CIO-CLC, as the exclusive representative of the employees in the bargaining unit described be- low. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our 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 col- lectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargain- ing or other mutual aid or protection, or to re- frain from any or all such activities. WE WILL, upon request, bargain collectively with the said Union as the exclusive representa- tive of all our employees in the appropriate unit with respect to wage increases and related mat- ters, and, if an understanding is reached, em- body such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees, including truckdrivers and helpers, of the Em- ployer at its Morgantown , West Virginia loca- tion ; excluding office clerical employees and guards, professional employees and supervi- sors as defined in the Act. UNITED MAINTENANCE & MANUFACTURING CO., INC.