Precision Industries

661 320 NLRB No. 15 PRECISION INDUSTRIES 1 The Respondent has requested oral argument. The request is de- nied as the record, the exceptions, and the briefs adequately present the issues and positions of the parties. 2 The Respondent has excepted to the judge’s ruling excluding from evidence certain parts it produces, and has moved to introduce those parts into the record. We find no merit to that exception, and we deny the motion, because the introduction of the parts would not affect our conclusions. 3 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In this regard, we find no merit to the Respondent’s contention that the judge’s credibility find- ings are undermined by his consistent crediting of the General Coun- sel’s witnesses over those of the Respondent. The total rejection of one party’s witnesses does not of itself constitute a basis for over- turning a judge’s credibility determinations. NLRB v. Pittsburgh Steamship Co., 337 U.S. 656, 659 (1949). We delete the inadvertent reference to a violation of Sec. 8(a)(2) from the remedy section of the judge’s decision. We also correct the judge’s citations to Radio Union Local 1264 v. Broadcast Service, 380 U.S. 255 (1965), NLRB v. Burns International Security Services, 406 U.S. 272 (1972), Systems Management, 292 NLRB 1075 (1989), and Howard Johnson Co., 209 NLRB 1122 (1974). 4 See Marriott Corp., 251 NLRB 1355, 1360 (1980). See also St. Mary’s Honor Center v. Hicks, 113 S.Ct. 2742 (1993) (In Title VII case, trier of fact’s rejection of defendant’s proffered reasons per- mits, but does not compel, finding of intentional discrimination). Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966), and Williams Contracting, 309 NLRB 433 (1992), which the judge cited, do not support his thesis. Both the court in Shattuck Denn and the Board in Williams inferred unlawful motive from ex- planations found to be pretextual, but not from the pretextual expla- nations alone; other evidence of unlawful motive existed as well. And both the court and the Board found that the inference of unlaw- ful discrimination was permissible, not compelled. 5 The Respondent argues that it was improper for the judge to infer unlawful motive from its witnesses’ shifting explanations. We find no merit to that argument. When a party’s story keeps changing, it is perfectly appropriate for the finder of fact to conclude that none of the various versions are true. Doug Hartley, Inc. v. NLRB, 669 F.2d 579 (9th Cir. 1982), cited by the Respondent, is not to the con- trary. Unlike this case, in which the judge found the Respondent’s witnesses’ testimony inconsistent and contradictory, the court in Doug Hartley found that the employer’s multiple explanations were consistent. 6 This case thus is distinguishable from numerous decisions cited by the Respondent, in which the Board declined to infer that em- ployers acted out of antiunion motivation. Here, according to the credited testimony, unlawful motive was admitted by the Respond- ent’s agents at the time. Pace Industries, Inc., d/b/a Precision Industries, Inc., Pace Industries, Inc., d/b/a General Preci- sion Tool & Die, Inc., Pace Industries, Inc., d/b/a Automatic Castings, Inc., a single em- ployer and International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America (UAW). Case 26–CA– 13117 January 3, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS COHEN AND TRUESDALE On May 4, 1993, Administrative Law Judge Thomas R. Wilks issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel and the Charging Party filed answering briefs, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs1 and has decided to affirm the judge’s rulings,2 findings,3 and conclusions as modified herein and to adopt the rec- ommended Order. 1. We adopt the judge’s finding that the Respondent adopted a combination of preemployment screening, testing, physical examinations, and back X-rays at its Malvern, Arkansas facility solely to keep from hiring a majority of its work force at that plant from among the former employees of its unionized predecessor, Universal Die Casting, Inc. (UDC), and thus to avoid having to recognize and bargain with the Union. We also adopt his corollary finding that the Respondent’s proffered reasons for following those procedures were false and pretextual. In affirming the judge’s findings, however, we dis- avow his implication that, disregarding other evidence of unlawful motivation, he was constrained to find a violation of Section 8(a)(3) solely because he did not believe the testimony of the Respondent’s witnesses concerning the reasons for implementing the screening processes at Malvern. Having discredited the Respond- ent’s explanations for its actions, the judge was enti- tled to infer that there was another reason, but it does not necessarily follow that the real reason was ground- ed in antiunion animus. Those explanations might have been offered in an attempt to conceal a violation of some other statute instead of the Act, or a motive that may have been base but not unlawful at all.4 Con- sequently, we reject any suggestion that the ‘‘inconsist- encies, contradictions, improbabilities and aberrational and shifting explanations’’5 in the testimony of the Re- spondent’s witnesses ‘‘necessarily compel’’ the conclu- sion that the Respondent’s true motive in implement- ing those processes was disciminatory within the meaning of the Act. We nonetheless affirm the judge, because he found in the alternative that the General Counsel had proved by direct evidence that the Respondent’s sole motive was unlawful. Thus, the judge found, on the basis of the credited testimony of Roger Connor and Debbie Key, that the Respondent had admitted adopting the employment screening procedures at Malvern in order to avoid union representation.6 That evidence, consid- 662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 See Wright Line, 251 NLRB 1083 (1980). The Respondent con- tends that the General Counsel failed to establish a prima facie case that the hiring procedures at Malvern were implemented for unlawful reasons. We find no merit to that contention. The Respondent’s un- lawful motive was established by direct evidence. Moreover, con- trary to the Respondent, the judge did not require it to prove, in the prima facie stage of analysis, that it had a sufficient business jus- tification for its actions. Nor did he require the Respondent to dis- prove the existence of antiunion animus. The judge properly consid- ered all the relevant record evidence, including the Respondent’s witnesses’ discredited testimony, in finding that the General Counsel had proved that the Respondent acted from unlawful motives. See Greco & Haines, Inc., 306 NLRB 634 (1992); Union-Tribune Pub- lishing Co. v. NLRB, 1 F.3d 486 (7th Cir. 1993); Wright Line, supra, 251 NLRB at 1088 fn. 12; Shattuck Denn Mining Co. v. NLRB, supra, 362 F.2d at 470. That the judge must consider the General Counsel’s prima facie case separately from the Respondent’s Wright Line defense, see Cine Enterprises, 301 NLRB 446, 447 (1991), means only that the judge need not address the Respondent’s defense at all unless he first finds that the General Counsel has proved that the Respondent acted, at least in part, from unlawful motives. It does not mean that the judge, in determining whether the General Counsel has carried his prima facie burden, may not consider evidence that also bears on the Respondent’s defense. 8 See Wright Line, supra. In this regard, we find no merit to the Respondent’s argument that Wright Line should not apply in cases involving refusals to hire in the successorship context. The Board in Wright Line explicitly stated that the analysis announced therein would be applied in all 8(a)(3) cases, 251 NLRB at 1089, and it has applied Wright Line analysis in cases involving refusals to hire by putative successors. See, e.g., Laro Maintenance Corp., 312 NLRB 155, 162–163 (1993), enfd. 56 F.3d 224 (D.C. Cir. 1995); Wilson Tree Co., 312 NLRB 883, 884–885 (1993). The dictum in fn. 5 of Burns, supra, on which the Respondent relies, is not to the contrary. It states simply that an employer violates Sec. 8(a)(3) by refusing to hire employees solely because they are union members; it does not suggest that the refusal to hire is unlawful only if it is solely based on union membership. In any event, we agree with the judge’s finding that the Respondent’s failure to hire the discriminatees was based entirely on antiunion considerations. We further find no merit to the Respondent’s argument that the judge confused ‘‘mixed-motive’’ cases with ‘‘pretext’’ cases (those in which only one, unlawful, motive is found). The judge separately analyzed the evidence under both theories and found that, under ei- ther theory, a violation had been established. 9 The judge’s finding that the screening procedures were not spe- cifically designed or constructed to identify the particular traits the Respondent allegedly was seeking is another matter. Such evidence, in our view, reduces the likelihood that the procedures were expected to achieve the results for which they assertedly were implemented, and was properly considered by the judge in arriving at his finding that the Respondent had not carried its Wright Line burden. ered in the context of what he found to be dissembling by the Respondent’s witnesses, led the judge to con- clude that the Respondent’s proffered business reasons were totally false and pretextual, and that the General Counsel had proved by a preponderance of the evi- dence that the Respondent’s only real motive was un- lawful. That was a permissible finding, well grounded in the record, and we affirm it. We further adopt the judge’s finding that, even if the Respondent actually had mixed motives for its ac- tions—that is, even if it had lawful business-related motives as well as the unlawful motive demonstrated by the General Counsel7—it failed to prove that it would have taken the same actions in the absence of the unlawful motive.8 In this regard, however, we do not rely on his finding that the Respondent failed to prove that the procedures it adopted at Malvern in fact identified the best workers or workers with specific skills. Even if the procedures actually failed in that re- spect, the Respondent might have believed, ex ante, that they would succeed. In those circumstances, it would be inappropriate to infer from their actual fail- ure that the Respondent would not have implemented them had it not been for the employees’ union activi- ties.9 Nor do we rely on the judge’s finding that the Respondent required applicants to undergo physical ability screening, physical examinations, and back X- rays in the absence of actual, known physical disabil- ities. It is entirely plausible that an employer with no discriminatory motive under our statute would wish to avoid hiring individuals who were prone to workplace injury because of physical problems, and would seek to identify such individuals in advance by means of tests or X-rays. That such conditions might be undis- closed or even unknown to the individual at the time of application is beside the point. Finally, in adopting the judge’s finding that the Re- spondent violated Section 8(a)(3), we stress that nei- ther we nor the judge have found that it was inherently unreasonable for the Respondent to use employment screening procedures such as application forms, apti- tude testing, or physical examinations, or to make em- ployment decisions on the basis of information gleaned from those procedures. Nor have we found that any of the individual screening devices were unreasonable. And we have not found it necessary to determine whether the Respondent engaged in disparate treatment of former employees of UDC by systematically apply- ing the procedures more stringently to them than to other applicants, or whether it passed over qualified former UDC employees in order to hire other, less qualified applicants. This, in other words, is not a typical case of antiunion discrimination, because it does not hinge on a finding of inherently unreasonable or disparate treat- ment. Such treatment was unnecessary for the Re- spondent’s purpose, which was not to deny employ- ment to all applicants who were union members, but simply to make sure that former UDC employees did not make up a majority of its work force, and thereby to avoid incurring the duty to recognize and bargain with the Union. For that purpose the Respondent did not need to adopt unreasonable hiring criteria or to apply reasonable criteria unequally. It had only to adopt and apply a set of screening devices—any set would do—provided that the acceptable level of per- formance was fixed high enough to exclude the req- uisite number of former UDC employees. As the judge 663 PRECISION INDUSTRIES 10 In its exceptions, the Respondent continues to argue that its screening processes were reasonable and evenhandedly applied, and that the judge erred in failing to consider other record evidence to that effect. We find no merit to those arguments. As we have dis- cussed in text above, the issue here is not whether the screening cri- teria were reasonable or evenhandedly applied; the issue is whether they would have been adopted at all except for the employees’ union activities. The Respondent also contends that the judge substituted his busi- ness judgment for that of the Respondent, and that he presumed that former UDC employees should have been hired en masse or that the Respondent should have given them preference in hiring. We find nothing in the judge’s decision to support any of those contentions. 11 Automobile Workers (UAW) v. Universal Die Casting, Inc., Civil Nos. 90–6037, 89–6071 (W.D. Ark). 12 Field Bridge Associates, 306 NLRB 322 (1992), enfd. sub nom. Service Employees v. NLRB, 982 F.2d 845 (2d Cir. 1993). 13 See Service Employees v. NLRB, supra, 982 F.2d at 849. NLRB v. Donna-Lee Sportswear Co., 836 F.2d 31 (1st Cir. 1987), and NLRB v. Heyman, 541 F.2d 796 (9th Cir. 1976), cited by the Re- spondent, are distinguishable from this case. In both of those cases, the issue in the unfair labor practice case—the existence, vel non, of a contract—was the same as the one that had been decided in the court proceeding. 14 The Respondent’s alternative argument that the Board is collat- erally estopped by the court’s decision from ordering restoration of the benefit plans similarly fails because the issues, again, are dif- ferent here from those decided by the court. A restoration remedy will not be for a contract violation because it will not be based on the continued enforceability of the expired contract. It will, instead, restore the terms and conditions of employment that existed before they were altered by the Respondent without bargaining with the Union, in violation of the Act. 15 See, e.g., Matter of Cassidy, 892 F.2d 637, 641 (7th Cir. 1990). 16 Id. at 642 (judicial estoppel should not be used when there is only the appearance of inconsistency between two positions that may actually be reconcilable). found, that is what the Respondent did, and that is why he, and we, have found the violation.10 2. In its exceptions, the Respondent argues that the complaint should be dismissed entirely on the ground of res judicata. It further argues that, as to a few of the discriminatees, the complaint is barred by judicial estoppel. We find no merit to either contention. The Respondent bases its res judicata argument on its having prevailed in an ERISA suit brought by the Union and certain former UDC employees and retir- ees.11 The plaintiffs alleged that the Respondent, under the terms of the purchase agreement with UDC, had agreed to assume responsibility for a health and life in- surance benefit plan that had been established under UDC’s collective-bargaining agreement with the Union, but thereafter had failed to provide the agreed- on benefits and terminated the plan. The district court found that the Respondent had not agreed to assume the insurance benefit programs, and dismissed the suit. Even assuming, arguendo, that principles of res judi- cata would otherwise be applicable in this case, we find that the court’s decision does not preclude the General Counsel from litigating the issues before us. First, the General Counsel was not a party to the court action. The Board adheres to the general rule that the Government is not precluded from litigating an issue involving the enforcement of Federal law that a private party has litigated unsuccessfully, when the Govern- ment was not a party to the private litigation.12 Sec- ond, the issues decided in the district court action were not those before us in this proceeding. The court was faced only with a claim that the Respondent had in- curred a contractual duty to provide certain benefits and that the duty had been breached. It was not con- fronted with the issues here—of discriminatory hiring, successorship, and the Respondent’s statutory obliga- tion not to change terms and conditions of employment (contract or no contract) without first affording the Union an opportunity to bargain.13 Accordingly, the Respondent’s res judicata argument is without merit.14 Likewise, we reject the Respondent’s contention that judicial estoppel applies here. The gist of the doctrine of judicial estoppel is that a party who has successfully asserted one position in a legal proceeding should not be permitted thereafter to assert a clearly inconsistent position in the same or related proceedings.15 In this case, several of the discriminatees filed charges with the EEOC alleging that the Respondent’s failure to hire them was based on their race or age. The Re- spondent contends that the General Counsel may not now contend that the failure to hire those individuals was based instead on antiunion animus. That argument is clearly without merit, again assuming arguendo that this doctrine is applicable to proceedings before the Board. Neither the General Counsel nor the Union (the Charging Party) filed the EEOC charges; certainly they have not taken inconsistent positions here. Nor are the individuals who filed the Title VII charges parties in this proceeding. In any event, we see nothing incon- sistent in alleging race or age discrimination in one forum and discrimination based on union membership in another. The individuals in question may have be- lieved in good faith that the Respondent had more than one illegal motive for declining to hire them.16 For these reasons, we find that judicial estoppel does not bar the claims on behalf of those discriminatees. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Pace Industries, Inc., d/b/a Precision Industries, Inc., Pace Industries, Inc., Pace Industries, Inc., d/b/a General Precision Tool & Die, Inc., Pace Industries, Inc., d/b/a Automatic Castings, Inc., a single employer, Malvern, Arkansas, its officers, 664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 17 In its exceptions, the Respondent contends that the remedy should not be extended to ‘‘medical discriminatees’’ who would not have been employed because of physical infirmities. We reject that argument, which is based on the premise that it is permissible to ex- clude an individual from employment on the basis of unlawfully adopted hiring standards. Should the Respondent demonstrate at compliance that it has implemented hiring standards that are not based on discriminatory motives, we shall not require it to reinstate any discriminatee who fails to meet those standards, or to make whole any discriminatee for any period in which the individual did not meet the standards once they were in effect. 1 See my and former Member Stephens’ dissent in Canteen Co., 317 NLRB 1052 (1995), including my personal fns. 5 and 6. See also my concurrence in Staten Island Hotel, 318 NLRB No. 90 (Aug. 29, 1995). 1 Appearance of Jim Hunter Birch withdrawn during the course of litigation. 2 Appearance of Chad Farris withdrawn during the course of litiga- tion. 3 The name of the Respondent appears as amended pursuant to complaint amendment of October 15, 1990. agents, successors, and assigns, shall take the action set forth in the Order.17 MEMBER COHEN, dissenting in part. I agree with my colleagues except in the following respect. I do not agree that the Respondent was obli- gated to bargain with the Union regarding initial terms and conditions of employment. In my view, a succes- sor is so obligated if (1) but for its discriminatory practices it would have hired its entire complement from the predecessor’s employees; and (2) it fails to announce to the predecessor’s employees, prior to, or simultaneously with, extending an unconditional offer of hire, that its initial terms will be different from the predecessor’s terms.1 Here, as to the first part of my test, I assume arguendo that, absent the Respondent’s discrimination, it would have hired its entire complement from the predecessor’s employees. As to the second part of my test, however, I find that the Respondent announced, prior to hiring employees, that its wage rate would dif- fer from that of the predecessor. Accordingly, the Re- spondent was privileged to establish that term unilater- ally without running afoul of Section 8(a)(5). Bruce E Buchanan, Esq. and John H. Goree, Esq., for the General Counsel. Tim Boe, Esq., Jim Hunter Birch, Esq.,1 and Mark A. Peo- ples, Esq. (Rose Law Firm), for the Respondent. James O’Connor, Esq., and Chad Farris, Esq.2 (Youngdahl, Trotter, McGowan & Ferris), of Little Rock, Arkansas, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS R. WILKS, Administrative Law Judge. On April 7, 1989, the International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW) (the Union) filed the initial unfair labor practice charge in this cases against Universal Die Casting, Inc. (UDC) and Precision Industries, Inc.3 (PI or Respondent), and an amended charge on May 8, 1989, solely against PI. On May 25, 1989, the Regional Director for Region 26 issued a complaint against PI wherein it is alleged that PI violated Section 8(a)(1) and (3) of the Act on or about Octo- ber 18, 1988, by discriminatorily refusing to hire the former employees of UDC at Malvern, Arkansas, because of their prior representation in an appropriate bargaining unit by the Union, and in order that the Respondent avoid becoming a successor employer by virtue of majority employment of former UDC employees in its unchanged continuation of UDC’s business operations which it had acquired. The com- plaint also alleged violations of Section 8(a)(1) and (5) of the Act by PI’s refusal on or about ‘‘February 20, 1989 and/or May 2, 1989,’’ to recognize and bargain with the Union as the exclusive bargaining representative of its employees in the appropriate Malvern, Arkansas production and mainte- nance bargaining unit. Respondent filed its timely answer on June 9, 1989, wherein it admitted the jurisdiction of the Board, the labor organization status of the Union, and certain agency allega- tions except for that of Dr. Mamdouh Bakr whom it had em- ployed, it alleged, as an ‘‘independent contractor/consultant.’’ Respondent admitted the assets-only purchase of UDC but denied the operative successorship and labor practice factual allegations, including the appropriateness of the historic pro- duction and maintenance unit at the UDC Malvern plant as memorialized in a series of collective-bargaining contracts. Respondent admitted receipt of union counsel’s May 2, 1989 letter demand for recognition of the Union as bargaining agent for the unit employees. Respondent asserted a refusal of recognition on grounds that the Union failed to dem- onstrate majority representation status. Respondent denied a February 20, 1989 union recognition and bargaining request in letter form as alleged in the complaint. As affirmative defense, Respondent’s answer asserted, inter alia, that the Union failed to make a proper demand for recognition and bargaining demand supported by evidence of majority status and asserted further that its conduct was mo- tivated by ‘‘lawful business, management, entrepreneurial or other legitimate reasons,’’ that Respondent acted pursuant to ‘‘sound legal, accounting and other professional or expert ad- vise,’’ and that as a purchaser of UDC assets it had the ‘‘right to set the initial wages, benefits, terms and conditions of employment, including but not limited to employee quali- fications.’’ Dr. Bakr’s status as Respondent agent is relevant to his conduct with respect to the selection, development, and ap- plication of an open employment screening-testing-physical examination process instituted by Respondent on the resump- tion of operations at the former UDC facilities at Malvern, Arkansas, after acquisition by PI, and somewhat later in early 1989 at the former UDC facility at Little Rock, Arkansas. UDC’s operations were ongoing except for a short hiatus caused by the PI hiring process. On November 13, 1989, the trial opened and commenced before me at Little Rock, Arkansas. That opening session, and a preceding pretrial telephone conference, was consumed 665 PRECISION INDUSTRIES with the consideration and ruling on of Respondent’s and Dr. Bakr’s motions to revoke subpoenas duces tecum served on them by the General Counsel covering a vast amount of records and documents related, inter alia, to Respondent’s Malvern plant job hiring procedures and its relationship to other corporate entities for the purpose of proving a disparity of hiring procedures at other places of business as a single or joint employer. The General Counsel and the Union rejected Respondent’s offer to submit information, that I ruled was related to the issues in the case, under a stipulated protective order to in- sure certain confidentiality. Without the stipulated protective order, Respondent refused compliance. Accordingly, the trial was adjourned without date to permit the General Counsel to seek subpoena enforcement before the United States District Court, Eastern District of Arkansas. The General Counsel’s reasons for not seeking an investigative subpoena in the first place are stated on the record of the September 13, 1989 ses- sion. On December 27, 1989, United States District Judge Ste- phen M. Reasoner issued a consent decree, whereby the terms of compliance with General Counsel’s subpoena was stipulated and agreed to by the parties. Among the terms of Judge Reasoner’s decree was, in effect, a very similar protec- tive order proffered at the November trial. Pursuant to Judge Reasoner’s order, large portions of the exhibits and official transcript in this case were sealed and testimony taken in camera to preserve certain matters of business confidentiality of Respondent and Dr. Bakr. In compliance with that decree, I have referred to the material covered by it only where nec- essary for an adequate finding of fact. On January 17, 1990, the General Counsel moved to re- sume the hearing on April 2, 1990. An appropriate order of resumption issued, but on March 8, 1990, the General Coun- sel filed a motion, which was granted, for indefinite post- ponement because he needed more time to review the mas- sive amount of documentation produced in compliance with the consent decree. On June 22, 1990, the General Counsel moved to amend the complaint by filing an amended complaint. The amended complaint reduced the number of alleged discriminatees at the Malvern plant from 77 persons to 62. However, it now also alleged that Respondent discriminated against 19 named former employees at the former UDC Little Rock plant ac- quired by PI in October 1988 by virtue of its refusal to con- tinue their employment at Little Rock since on or about Feb- ruary 1, 1989, a date when, because of uncontroverted busi- ness reasons, the Little Rock plant was closed and its em- ployees, it is alleged, were required, as innocent victims, to undergo an unlawful, discriminatorily motivated and discriminatorily applied screening-testing-physical examina- tion hiring process at the Malvern plant as a condition of their transferred employment from the Little Rock plant. The amended complaint alleges further violation of Section 8(a)(1) and (5) of the Act by virtue of Respondent’s unilat- eral changes in terms and conditions of employment of bar- gaining unit employees at the Malvern plant on or about Oc- tober 18, 1988, with respect to wages, health insurance bene- fits, life insurance benefits, pension plan benefits, and job classifications. The complaint was so amended by order of July 23, 1990. On June 29, 1990, the General Counsel, having nearly completed his review of the subpoenaed documents, moved to resume the trial. Accordingly, litigation resumed on Sep- tember 17, 1990, on which date I granted the General Coun- sel’s further amendment to the complaint which alleged the single-employer and single-integrated enterprise status of PI, Pace Industries, Inc., and General Precision Tool & Die, Inc. The amendment also adds subcontracting as one of the un- lawful unilateral changes and deletes the names of J. Archer, R. Banks, and J. Williams as Little Rock discriminatees. Respondent filed an appropriate amended answer and de- nied the alleged operative facts of the amended complaint. Respondent filed two motions to dismiss on September 17 and 28, 1990, which I denied. On October 15, 1990, I granted the General Counsel’s mo- tion to add Automatic Castings, Inc. (ACI) as a joint em- ployer and single-integrated enterprise with Respondent. The trial which commenced on November 13, 1989, there- fore resumed on September 17, 1990, and continued on through September 20, from October 15 through 18, from November 5 through 8, and from December 3 through 5. Al- though opportunity was given for ongoing unsuccessful set- tlement discussions, the trial continued in accommodation with the schedules of all parties through 1991, from January 15 through 18, February 11 through 15, March 4 through 7, April 1 through 4, May 20 through 23, June 17 through 20, July 8 through 11, July 22 through 25, November 4 through 7, and November 18 and 19. Fifteen weekly sessions of often intensive, concentrated litigation resulted in a transcript of about 12,960 pages and 2 cartons of documentary evidence, inclusive of videotapes, photographs, and written records. During the course of the trial, Respondent moved to strike the testimony of General Counsel’s proffered expert witness, industrial psychologist Dr. Sylvia Joure, inter alia, on the grounds that she disobeyed my instructions that she not dis- cuss her testimony with anyone on those occasions when she was excused from the hearing room while procedural points were argued. My refusal to strike her testimony and to take the issue under advisement in consideration of her overall credibility was, by means of an interim appeal presented to the Board, where Respondent also attacked the ethical con- duct of counsel for the General Counsel with respect to their participation in the presentation of an exhibit offered into evidence during Joure’s redirect examination for the purpose of revising an exhibit identified by her in her direct examina- tion as her work product. Dr. Joure admitted that the revision was constructed as a result of and during telephone conversa- tions with her associates in Memphis, Tennessee, during the time she was under my foregoing instructions. Joure was in- experienced as an expert witness. The revision itself is of minor significance, and, as will be revealed hereinafter, I placed no reliance on Joure’s testimony in resolving the is- sues of this case because it was unnecessary to do so. Coun- sel for the General Counsel’s expressed motivation was that the witness had discovered an error in her computation that warranted correction. The witness engaged in the proscribed conversations unknown to counsel for the General Counsel. Despite what might be said of the quality of their judgment in the matter, their conduct was not calculated to adduce false evidence but, rather, to correct what was disclosed to them as slightly erroneous evidence that had been unwit- tingly adduced during direct examination. I did not find it 666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD necessary to rely on that evidence. The Board did not ex- press any sanction on them nor did it order me to investigate their conduct or pass judgment on it. During the course of the trial, Respondent raised numerous complaints and allegations not only as to the investigative pretrial conduct of counsel for the General Counsel as well as their trial behavior, but Respondent also attacked the moti- vation of their superiors as to the issuance of the complaint. Respondent, inter alia, sought to adduce evidence that the issuance of complaint was an act of selective prosecution motivated by political considerations because Respondent’s principals are known by the Regional Director and the Union to be significant financial contributors to the Republican Party. Although I permitted Respondent to make offers of proof as to such issues, I ruled them to be extraneous to my authority and to the issues in this case as circumscribed by the complaint, i.e., the facts would determine whether or not Respondent violated the Act. Whether or not the Regional Director failed to act against employers for whatever reasons, whether proper, improper, or simply because of malfeasance, is beyond relevance and my jurisdiction. I excluded from these rulings any evidence that Respondent might proffer as to the General Counsel’s agents’ subornation of perjury, or interference or undue influence on a witness, or other im- proper manipulation of or suppression of evidence. There was no such proffer. Testimony elicited as to the General Counsel’s thoroughness or lack thereof in investigation the case did not amount to such impropriety such as to affect the competency of evidence, and I pass no judgment on the qual- ity of the investigation nor the quality, wisdom, efficiency, or proprietary of any party’s trial tactics and the numerous ad hominem attacks of all counsel on each other. If I were to do so, this decision would be compounded by a factor of 10. During the course of the trial, I curtailed evidence which, although otherwise relevant, warranted exclusion pursuant to discretion afforded to me under Federal Rule 403, in that it was unduly burdensome, cumulative, unnecessarily confusing to the record and trier of fact, or of such minor probative value that it did not warrant the time and expense of even more litigation that would be entailed. I also curtailed a substantial amount of rebuttal evidence proffered by the General Counsel and the Union but, how- ever, in part, for the additional reasons that it was not proper rebuttal evidence, given the issue as framed by the General Counsel and given his litigation strategy, i.e., 611(c) wit- nesses wherein evidence arguably of Respondent’s defense were elicited and rebutted as part of the case-in-chief. Thus the General Counsel having elicited and attacked Respond- ent’s defenses in the case-in-chief was not permitted to re- visit those issues and relitigate with additional evidence what he previously litigated. Nor was the General Counsel or the Union permitted to rebut factual defenses which Respondent had not established nor attempted to established. Despite the foregoing restrictions, all parties were given full opportunity to adduce, to reasonable and arguably unrea- sonable extent, competent, relevant, and material evidence and, in so doing, to fully examine and cross-examine wit- nesses. All motions to reopen the record by whatever means, including Respondent’s motion to adduce the court reporter’s sound recordings of Dr. Joure’s testimony, are denied. Because of the monumental state of the record and the complexity of factual issues in this case, a significant number of which are unnecessary of resolution given my ultimate factual findings, the parties were afforded by me through mutual stipulation the opportunity to file briefs at a delayed date of March 18, 1992, and answering briefs thereafter. Subsequently, on motions of the parties to the chief adminis- trative law judge, those dates were periodically extended so that the briefs were finally filed on July 21, 1992, and an- swering briefs filed on October 5, 1992. Respondent’s brief was 1049 pages in length, exclusive of appendices. The Gen- eral Counsel’s brief was 200 pages long, and the Union’s brief was mercifully only 74 pages in length. Respondent’s reply brief was pared down to 136 pages, the General Counsel’s reply brief to 37 pages, and the Union’s reply to 41 pages. The acrimony, disparagement, and personal insults mutu- ally exchanged by the parties during the trial and in their briefs refused to abate and, subsequently, led by the General Counsel, a variety of motions to strike portions of opposing briefs and response briefs to the reply briefs ensued. The General Counsel did so despite his acknowledgement that he was aggravating a ‘‘paper war.’’ The vast preponderance of the mutual diatribes there related to alleged mischaracter- ization of what was in the record and thus was unnecessary because the record itself is there to be read. Instead of such a barrage of personal invective, it would have been more helpful to the trier of fact for all parties to have addressed themselves more fully to the contradictions in testimony of their own witnesses. I find that it is the most expeditious procedure to deny all motions to strike, of what- ever nature, and to receive and to consider all postreply briefs, i.e., the General Counsel’s 19-page December 15, 1992 reply to Respondent’s reply brief; the Union’s 17-page December 28, 1992 response to Respondent’s reply brief; Respondent’s December 17, 1992 response to General Coun- sel’s motions to strike, etc.; Respondent’s January 4, 1993 response to the Union’s motion for leave to file a brief; and Respondent’s February 8, 1993 11-page rejoinder to the Gen- eral Counsel and Union’s reply to its reply briefs. Despite the excessive verbosity and extraneous insults, each side pre- sented cogent, incisive, well-expounded arguments amidst much chaff. On the entire record of this case, including an evaluation of documentary evidence and the much disputed testimony of numerous witnesses, and on my observation of their de- meanor and in consideration of those lengthy briefs, all of which were read, I make the following I. JURISDICTION At times material to the assertion of jurisdiction in this case, Respondent PI was a corporation engaged in the manu- facture of die casting products at an office and plant located in Malvern, Arkansas, and from about October 1988 until about February 1989, at a plant located in Little Rock, Ar- kansas. The record reveals, and the Respondent admits, that it meets the appropriate criteria for the assertion of Board juris- diction. Accordingly, I find, and it is admitted, that Respondent PI is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. By virtue of that find- 667 PRECISION INDUSTRIES ing, all entities found here to constitute a single-employer status or single-integrated enterprise with Respondent are ac- cordingly subject to the jurisdiction of the Board. II. LABOR ORGANIZATION I find, and it is admitted, that International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) is a labor organization within the mean- ing of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background 1. The business of the alleged predecessor—UDC Respondent’s alleged immediate predecessor, UDC, had operated a die casting business under the principal ownership and management of Lewis Zachery located at its corporate headquarters and plant in Saline, Michigan, characterized as its northern division, and offices and plants located at Mal- vern and Little Rock, Arkansas, which constituted its south- ern division. The southern division employed about 100 pro- duction and maintenance employees at the Malvern plant and about 50 production and maintenance employees at the Little Rock plant. UDC, under Zachery’s ownership, was by no means a new business but was rather a continuation of operations that dated back to 1952, known first as Glenvale Products, then as Hoover Ball and Bearing Company, and later Hoover Uni- versal. Under all those prior manifestations, the UDC pro- duction and maintenance employees at the Malvern plant had been represented by the Union under a series of collective- bargaining agreements, the last of which was a 3-year term agreement which was due to expire on May 6, 1989. As of October 1988, the local management of the Malvern plant consisted of Plant Manager Michael (Mike) Nowak, Indus- trial Engineer David Watson, and Personnel Administrator Margie Kratz. The Little Rock plant management consisted of Plant Manager and UDC Southern Division Sales Coordinator Roger Connor, Manufacturing Manager Dale Kindy, and UDC Southern Division Sales Associate Debbie Key. The overall management of the corporation was located at Saline under Zachery. Headquartered there was also UDC Corporate Personnel Director Patricia Nader (until July 1988). The Saline plant engaged in the production of nonalu- minum alloy die cast products, a major portion of which was dependent on one of the major automobile manufacturers and the loss of which in 1987–1988 precipitated UDC’s financial distress and vulnerability to acquisition. The Malvern plant engaged primarily in aluminum die casting and some brass die casting, the latter of which had, by October 1988, de- clined from a rather significant portion of its business to only a negligible amount. The Little Rock plant also engaged in aluminum die casting until its February 1989 closure when its customers thereafter were serviced from the Malvern plant where some of its machines were transferred. The latter’s die casting machinery was of a larger tonnage than Malvern. Neither Little Rock nor Saline employees had ever been rep- resented by any labor organization. 2. The Malvern plant An aluminum die casting business can manufacture prod- ucts which it sells directly to customers by use of its own machines. That type of work is called ‘‘proprietary,’’ i.e., be- cause the die caster owns the casting dies. Proprietary die casting constituted about half of the Malvern plant business in the fall of 1988. The Malvern plant, as a proprietary die caster, maintained a long-term relationship with certain cus- tomers that effectuated stability of operations. The Malvern plant had dominated the national market for aluminum die cast, small, spoked water fixture handwheels, most frequently seen by the casual observer on outdoor or basement water spigots. The vast preponderance of the Malvern plant propri- etary production consisted of those handwheels which were purchased primarily by one customer. However, the Malvern plant also produced such proprietary productions as ‘‘tee handles,’’ lock nuts, and certain plumbing parts, and there is unrefuted evidence that UDC and PI continued to solicit other proprietary work. There is no evidence that proprietary work is inherently long-term work, although there is some testimony that it is usually a stable market. A die cast operation may also engage in production of die cast products for sale to a customer who owns the manufac- turing die which is placed for use of the die casting manufac- turer in its plant and to be operated by the die caster’s em- ployees. When a custom work contract is completed or when the contract is terminated for some other reason, unilaterally or bilaterally, those dies are removed or ‘‘pulled’’ by the customer from the die caster’s plant. Custom work may be done on direct contract with the ulti- mate user, e.g., automotive or lawn mower parts for the original manufacturer, or it may be done pursuant to contract with a supplier of such parts. There is unrefuted testimony in the record that some kinds of custom work can be long term and have a high margin of profit because of high vol- ume of product per machine, such as a flywheel the Malvern plant produced for a lawn mower manufacturer. Testimony also discloses that there is a great amount of custom work that is low volume and short term. In the latter kind of custom work, there is a great deal of competition in an already competitive industry. The die caster of such short- term custom work experiences frequent turnover of dies and therefore the type of products it produces. It must constantly solicit work and be able to satisfy the quality control pro- grams of the customer. An example of such quality program is the Ford Motor Company policy of in-house inspection and monitoring of the quality of production of the die caster subcontractee with whom it has placed its dies. On final ap- proval of a regimen imposed on the die caster by Ford to- ward a completely satisfactory quality control program, Ford awards a ‘‘Q-1’’ rating. Other manufacturers have quality control programs of varying stringency. However, testimony is unrefuted that the Ford Q-1 designation is highly sought after and, if won, it gives a soliciting die caster sales advan- tage, even with non-Ford customers. That same testimony re- veals that to be awarded a Q-1 rating, Ford demands that its die cast supplier apply the same stringent quality control process on all products produced in the supplier’s plant, even non-Ford products. It is further similarly testified that some other clients of custom die work require the same of their customers as does Ford, with the same type of quality con- trol process required by Ford, known as ‘‘statistical process 668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD control’’ or SPC. The SPC process entails an ongoing quality monitoring by machine operators and others, and prognos- tication of quality deviation through frequent periodic check- ing, measurement, calculation, and graph charting. Thus the worker is able to predict or foresee the development of a quality deviation from the required multifaceted dimensions and/or casting surface or internal structural condition of the product, and the employee is obliged to take corrective ac- tion to stop that trend. Custom products vary in size and complexity, and not all custom clients mandate SPC or other stringent in-house qual- ity programs as do Ford and similar manufacturers. As of fall 1988, half of the Malvern plant’s sales volume was due to custom work. Prior to that, but progressively declining over recent years, the Malvern plant had also engaged in a signifi- cant amount of custom brass die casting. The types of custom castings produced by UDC included end frames, automotive brackets, automotive oil shaft seals, rails, lids, cams, pistons, lighting housings, end caps, tractor steps, lawn mower flywheels, reclining chair levers, lawn mower ignition brackets, motor mounts, and cable harnesses for about 15 different customers. From July 1, 1987, through October 14, 1988, UDC serv- iced at one time or other about 23 major customers, each over $90,000 in sales. Of those customers, only a few were proprietary customers but they included the handwheel cus- tomers, one of which alone accounted for over $1.5 million of the custom sales, the lawn mower flywheel account was worth somewhat under $900,000. Unlike Malvern, the Little Rock plant exclusively pro- duced custom work, some of which was for the Ford Motor Company, for which the plant was being inspected periodi- cally by Ford under its Q-1 progressive qualification pro- gram. According to disputed testimony, the Little Rock plant had attempted to implement plantwide SPC, as required by Ford, but the Malvern plant had only a limited application of SPC. The degree of SPC implementation at both plants is also subject to some dispute. The Malvern plant employee job classifications can be generally described as follows: die cast operator, trim press operator, machining operator, paint racker, laboratory fin- isher, cleaning and processing operator, inspector and packer, lathe operator, paint machine operator, die cast setup, furnace tender, shipping and receiving employee, stock handler, maintenance employee, tool and die maker, supply room at- tendant and custodian. The flow of work at the Malvern plant followed the re- ceipt, unloading, weighing, and stacking of aluminum ingots; the transport of the ingots to furnaces for melting, and trans- fer of molten alloy to holding furnaces adjacent to the die cast machines, at which point that machine operator would oversee a process of open die preparation, closure, injection of metal, die opening, casting retrieval, and placement on a nearby table for buggy transport to the so-called trim presses located elsewhere in the plant. On their transport there, the castings were trimmed of excess metal by means of trim presses or trim dies, after which the product was again trans- ported to another area of processing referred to as secondary operations where it would be subjected to the appropriate drilling, tapping, milling, sanding and grinding called for in the customer’s specifications. The Malvern plant had a vari- ety of secondary machinery job classifications, some of which required inspection with gauges or micrometers. The final secondary function effectuated the ultimate cosmetic treatment of cleaning and/or flash removal of deburring by use of certain dedicated machines. Certain parts, such as handwheels, were painted in a room designated for that pur- pose. In addition to the ongoing flow of work directly related to the product emanation was, of course, that work necessary for the building and maintenance of the plant’s own tools and dies and for the setting of the die casting and trim dies. The usual supply room functions also attended the mainte- nance of work flow. 3. Precision Industries, Inc. The creation of PI began in the minds of Bob Gaddy and his associates, primarily of whom was James Keenan for the purpose, Gaddy explained, of assembling a group of alu- minum die casting and related tool and die making busi- nesses. Gaddy’s background is one of accounting and finan- cial planning. He is a certified public accountant. His prior business, Gaddy and Co., founded in 1970, specialized in tax and financial planning with a special orientation for ‘‘turn arounds’’ of businesses in financial distress and came to be the second largest of its kind in Arkansas. James (Jim) Keen- an was one of his close friends and clients for whom Gaddy serviced his many investments. Keenan founded Pace in 1970 in Harrison, Arkansas, which, over the years, maintains a work force of from 400 to 800 employees engaged in thin-walled aluminum die cast- ings which have since captured the national market for gas grills and outdoor lighting housings. As of August 1988, Keenan owned 27 percent of Pace stock and Gaddy 8 per- cent. Nine other stockholders owned 1-percent to 11 percent, of which Scott Bull owned 4-1/2 percent, Jim Alford and Ben Thigpen each owned less that 1 percent. Of nine offi- cers, Keenan was chairman and chief executive officer, Gaddy was president and chief operating officer, Jim Alford vice president, and Scott bull vice president of marketing. Jim Starkey, a friend of Gaddy’s since the early 70’s, be- came vice president of Pace Manufacturing, a stockholder and plant manager at the Pace Harrison plant, the success of which is credited to him by Gaddy. The Pace Harrison plant maintains an aluminum die cast- ing business that functioned much the same as that of UDC. It had similar type machines, and products that facially had similar features. Its castings weighed from 18 to 24 pounds and were larger in dimension that than of UDC. It also uti- lized die cast operators, trim press operators, finishing de- partment employees who performed similar functions, as well as maintenance employees. The flow of work was also simi- lar to UDC. The Pace employees use gauges and also a spec- trograph to analyze metal alloy content and quality and have used SPC to an even smaller degree than the Malvern UDC plant. Gaddy testified that Starkey’s ability is perceived to be the chief factor for Pace’s success and that Starkey is op- posed to the plantwide use of SPC or to the acquisition of products that require it or deviate from the large thin-wall type casting Harrison Pace produces. Alford testified that Pace’s labor relations policy is estab- lished, controlled, and implemented by its seven-person board of directors, including Gaddy, Keenan, and persons re- lated to him (who are often absent from board deliberations), 669 PRECISION INDUSTRIES as well as Starkey and Terry Bellora, a 2-percent stockholder and vice president of finance. There is no history of union representation at the Pace Harrison plant. With a yearly turn- over of 200 employees, it hired its job applicants by means of a two-page application of general questions, without writ- ten tests, manual dexterity tests, physical examinations, or back X-rays. Offices in Fayetteville, Arkansas, originally served as Pace’s corporate headquarters and business records reposi- tory. Originally, Gaddy personally handled sales solicitation for Pace but later, as it expanded, Scott Bull took over that func- tion for about 8 years until finally Ben Thigpen was hired to supplement him as Pace’s sales manager. Gaddy testified that prior to October 1988, Thigpen scoured the aluminum die casting market for potential sales and to discover where that market was heading and that they decided that it was in the direction of the type of product opposed by Starkey and which involved plantwide SPC which Starkey opposed. Gaddy testified that he considered it to be foolish and not cost effective to interfere with Starkey’s successful non-SPC operation at Harrison. He explained that because he wanted to acquire what was perceived to be the only open avenue of die casting growth, it must be performed elsewhere than at the Harrison plant. Gaddy testified that before October 1988, he decided to establish a multiplant aluminum die cast- ing operation with its executive offices located at Fayette- ville, Arkansas, the site also of his accounting business. Thereafter, Gaddy and Keenan commenced their search for the acquisition of aluminum die casting operations which, ac- cording to Gaddy, could serve as the basis for acquisition of customers not acceptable to Starkey. According to the testi- mony of Gaddy and Thigpen, the UDC operation was pur- chased because it was SPC capable. Neither Keenan nor Starkey testified. Jim Alford’s experience, like Gaddy, had been accounting. He is a certified public accountant and had achieved much experience in business acquisition consultations. According to Alford, he and Gaddy had discussed the possibility of jointly acquiring a die casting business during the period form 1974 through 1988 but nothing coalesced until he be- came involved in discussions with Keenan and Gaddy in 1987–1988. Pace had been Alford’s client since 1979, and Alford audited it yearly. Alford testified that he decided to join Keenan and Gaddy in their effort to acquire an alu- minum die casting business receptive to the SPC process and capable of producing more complex castings than simple thin-wall, large die castings that Starkey had specialized in at Harrison. Keenan and Gaddy did not use Pace as a means to acquire UDC’s assets because of the desire to eliminate one of the other minority Pace stockholders from the business and be- cause Pace’s bank would not agree to Pace’s acquisition of UDC assets by means of its own financing. For uncontroverted financial and business reasons, it had been determined that an asset purchase was more appropriate rath- er than a corporate stock acquisition. It was clear that they wanted to acquire and continue an ongoing business. Since Pace could not acquire the assets of UDC for which Alford had negotiated acquisition, Gaddy, Keenan, and Alford formed a new corporation for the purpose of acquiring all of UDC’s assets and to continue with and expand UDC’s prod- uct mix. Gaddy purchased UDC’s plant, machines, tools, goodwill, contracts, trademarks, licenses, and all its inciden- tal assets by means of the assumption of long-term industrial development revenue bonds and a note payable to Zachery over 7 years. Keenan, Gaddy, and Alford formed the new corporation, Precision Industries, Inc., and Keenan assumed his portion of the debt for PI stock that Gaddy issued to him. Gaddy contributed the former UDC assets into the corpora- tion. Stock was issued to other persons. Thus, on September 7, 1988, PI was incorporated in Ar- kansas. On October 15, 1988, Gaddy purchased the UDC as- sets and on October 17, he transferred the assets to PI for 46.5 percent of the stock. Keenan obtained 53.5 percent of the stock. The original officers were Gaddy, chairman of the board and chief executive officer; Alford, president and chief operating officer; Bellora, vice president of finance, treasurer, and assistant secretary; Richard Ardemagni, vice president of administration (also the same position at Pace where he had a 5-percent trust ownership interest and prepared tax returns); Carolyn Madison, secretary (also 1 percent Pace owner and Pace secretary); and later, on his postacquisition hiring by PI, Nowak as vice president of manufacturing. The ownership of PI also overlaps the ownership of Pace as follows: Keenan about 53 percent, Gaddy 18.5 percent, Alford 7.5 percent, Starkey 6 percent, Bull 4.5 percent, Ardemagni trust 4.5 per- cent, Bellora 2 percent, Madison 1 percent, Thigpen 1 per- cent, Nowak 1 percent. However, 1 percent each was owned by a Howard N. Higgins and Richard T. Smith. The records of both PI and Pace were maintained at their mutual corporate office at Fayetteville where Madison and Ardemagni performed identical services for both corpora- tions. Thigpen and Bull had responsibility for sales and mar- keting for both corporations. On Friday, October 14, 1988, UDC was closed and its em- ployees were told to apply in open competition for their old jobs by submission of a 19-page written application. Those who applied were subjected to a preclosure conceived appli- cation-screening-testing physical examination hiring process so stringent that only 22 of about 103 former UDC employ- ees who applied were hired. (Only 62 rejected UDC applica- tions are alleged as discriminatees.) In a field of over 500 more non-UDC applicants, who also applied pursuant to pub- lic solicitation over a 3-day hiring period at closure, there was an even higher ratio of rejections. Although production resumed in early November 1988 with 40 to 50 employees, the employee complement did not stabilize until January 1989 at about 70, grew to 84 in May, and declined to 75 in June 1989. The motivation for the institution of that hiring procedure which necessitated an admittedly undesirable disruption in business operations which had intended to be continued by PI, rather than the immediate reinstatement of all former em- ployees, some of whom had many years of experience, is a matter of dispute. A participant in the formulation and application of the PI hiring process, including but not limited to the tests, is Dr. Mamdouh Bakr, an industrial engineer and private sector business consultant who also occupies a respected academic position at the University of Arkansas at Little Rock (UALR). Reference here will also be made to SPC and its relation to Dr. W. Edward Deming. Identified in the record as a statistician, Dr. Deming was part of a group of consult- 670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ants invited to Japan by General Douglas MacArthur at the end of the World War II to assist in the revitalization of Jap- anese industry. The ‘‘Deming Philosophy’’ of manufacturing was ignored by industrial United States but embraced by Jap- anese industry, and the rest is history. Dr. Deming promulgated his famous ‘‘The Fourteen Obli- gations of Top Management,’’ which, according to expert testimony of Respondent witnesses, formed the basis from which evolved ‘‘one of the most significant training pro- grams in this country,’’ i.e., ‘‘The Transformation of Amer- ican Industry,’’ developed by Jackson College in Jackson, Michigan. According to that testimony, it reflects the mind- set and philosophy of Dr. Deming and SPC is but one effect thereof. Its three sponsors are Eaton Corporation, General Motors Corporation, and the Ford Motor Company. 4. Related enterprises Mangus Tool and Die, Inc. (Mangus) was a tool and die manufacturer located in Muscle Shoals, Alabama. It had built dies for UDC, Pace, and PI with a skilled work force of about 35 employees under its general manager, George Spellings. On October 12, Keenan and Gaddy purchased 79 percent of Mangus stock and the balance was purchased by Spellings. Its operation continued, without change, termi- nation, or rehiring of employees. On October 18, General Precision Tool and Die, Inc. (GP) was incorporated in Ar- kansas. Stock ownership was very closely similar in propor- tion and identity to that of PI. The officers and directors re- flected the same similarity to PI, i.e., Gaddy, Keenan, Alford, Bellora, Ardemagni, and Madison. On November 14, Mangus was merged into GP, which, according to Alford, was for tax benefit purposes. On No- vember 29, Gaddy and Keenan purchased the stock of South Central Tool and Die, Inc. of Florence, Alabama. With a skilled work force of about 30 employees, it had also en- gaged in the production and repair of tools and dies. No changes were effectuated, and the employees were retained in the ongoing business. It was also merged into GP on No- vember 30 with no impact on the nonunion represented em- ployees’ continued employment. Subsequently, Mangus and South Central operated as divisions of GP. GP’s corporate functions were carried on as PI’s were at Fayetteville, e.g., Ardemagni prepared its tax returns. GP’s skilled employees work with heavy dies and tools, must lift heavy objects, and are required to read blueprints. They were unscreened and untested on the corporate acquisition of their employer. The acquisition of these tool and die businesses benefited PI and Pace which was assured of priority in source and the potential of lucratively referring customers in need of tool and die service. Automatic Castings, Inc. (ACI), an Arkansas corporation, was located in Green Forest, Arkansas, where its 40 to 45 employees (at most, 80) engaged in the production of alu- minum die castings with same or similar machinery, job functions and work flow, as had UDC employees, which pro- duced a mix of proprietary and custom castings. On January 4, 1990, Gaddy and Keenan purchased all of the assets of ACI, and it was reincorporated in Arkansas on January 6, 1990. Gaddy, Keenan, and Dan Jones constituted the direc- torship. The ownership and its proportions were identical or similar to PI except that Jones had a small share. The offi- cers in function and identity mirrored those of PI. Thigpen joined Jones with respect to sales responsibilities. The corporate officer were located with Pace at Fayetteville where common personnel performed its corporate functions. ACI, PI, and Pace maintain the same workman’s compensa- tion policy and share two of the same aluminum ingot sup- pliers. ACI loaned money to PI without collateral or fixed repayment date, which was repaid without interest. ACI pur- chased fence fitting products produced for it by PI. Fence fit- tings were one of ACI’s major products. In certain business dealings, PI and ACI described ACI as an ‘‘affiliate of’’ PI. Pace has provided to ACI, at a fee, administrative, banking and computer support, corporate records maintenance, salary and payroll preparation, tax return preparation, and sales and marketing service. A variety of other services are performed by common personnel. On June 30, 1990, PI, GP, and ACI entered a merger whereby they became divisions of Pace. The surviving direc- torship is that of what was the Pace board of directors. The owners of PI, ACI, and GP were sold proportional shares of Pace stock. The labor relations of PI were determined by Gaddy, Keenan, and Alford who also, with Spellings and Thomas did the same for GP. Gaddy, Keenan, and Jones de- termined ACI’s labor relations policy. At Pace, Gaddy, Keenan, Bellora, Starkey, Flinn, and three relatives of Keen- an held that responsibility. PI and Pace serviced several common customers. Pace per- formed a variety of administrative, banking, and salary pay- roll functions for PI, and they both leased equipment to each other. Subsequently, the main office of Pace was moved to Malvern, Arkansas. Although the Respondent does not argue the issue in its briefs, its answer denies the single-employer allegations in the amended complaint. I conclude, on the foregoing evi- dence, that the General Counsel has established Pace, PI, GP, and ACI as a single employer even prior to their merger with Pace, by demonstrating sufficient community of ownership management, control of labor relations, and interrelations of operations. Radio Union Local 1264 v. Broadcast Service, U.S. 225 (1965); Bryer Construction Co., 240 NLRB 102, 104 (1979); Airport Bus Service, 273 NLRB 561 (1985). B. Direct Evidence of Discriminatory Motivation The General Counsel adduced evidence, which, if credited, is argued to be direct evidence of unlawful motivation for the PI hiring process at Malvern. That evidence is found in the testimony of Roger Connor and Deborah Key. Their testi- mony also evidences a large portion of the alleged animosity toward union representation. That evidence and other evi- dence of such animosity, in conjunction with other cir- cumstantial evidence, is also argued by the General Counsel to support an inference of unlawful motivation in whole or in part, if evidence of direct unlawful motivation is found to be insufficient. However, it is the position of the General Counsel that the credible evidence of direct unlawful motiva- tion is sufficient to support a finding that Respondent effec- tuated the very decision to impose any screening on the UDC employees prior to their being hired by PI to resume the pre- existing job functions necessary to fulfill outstanding cus- tomer needs and to satisfy the hoped-for progressive future increase in newly solicited work. Thus the General Counsel argues that had it not been at least or in part for the ac- knowledged concomitant obligation to recognize the Union 671 PRECISION INDUSTRIES on the hiring of more than half of the UDC employees, Re- spondent would have recalled them to their former jobs with- out screening and testing them, and without physical exami- nations and back X-rays. If the General Counsel prevails with this theory, the entire screening process itself was un- lawfully instituted regardless of whether it is inherently rea- sonable or unreasonable, regardless of whether it was reason- ably or unreasonably applied, regardless of whether it inher- ently discriminated against incumbent employees or did not inherently discriminate, or regardless of whether the process in whole or in part was applied in a manner to discriminate against the incumbent UDC employees by controlling the number of their hiring to a minority point. Thus the General Counsel’s first theory is that even if the Respondent effec- tuated a bona fide inherently nondiscriminatory screening process in whole or in part for discriminatory reasons, then the screening process itself was unlawful regardless of con- tent, and all who failed it were discriminatees entitled to re- instatement regardless of their actual mental or physical abil- ity. The bulk of the testimony and other evidence, which reached massive proportions, is attributable to the alternative theory of violation. Thus testimony was adduced relating to an analysis of the minutiae of the hiring process, including, inter alia, the reasonableness or job-related nature of tests imposed on the applicants. Indeed, the General Counsel so aggressively pursued the expansive prosecution that it and the Union resisted concessions to the most obvious conclu- sions that certain processes were not so inherently unreason- able as to necessarily infer pretext and unlawful motivation. Before any analysis is made of secondary evidence of screen- ing motivation, common sense demands that the evidence of direct motivation be first evaluated. That entails an examina- tion and analysis of testimony of Connor and Key, and also an examination of the context of their testimony, e.g., other evidence of union representation animus. Such evidence can- not preclude evidence of union animus of the predecessor UDC because, as is noted elsewhere, PI agents have, without formal screening, retained in place the employment of the Malvern plant managerial and supervisory staff, as indeed of virtually all its salaried personnel, inclusive of quality control agents. Furthermore, PI agents have testified, albeit inconsist- ently and contradictorily among themselves, that the very de- cision to institute a screening and/or a testing procedure was motivated in whole or in part by the recommendations of the UDC Malvern plant managers, who assisted in the formula- tion of this process with a hired professional and academic industrial engineer and who participated in the establishment of the screening elements and test scoring which determined how many of the UDC employees could pass the screening process and the tests. Depending on the General Counsel’s proofs, Respondent may find itself in the dilemma of either being responsible for the discriminatory motivation of the hired UDC management or having to explain why it decided not to continue an ongo- ing die casting process with the very same employees who engaged in that process as they had been for many years, but rather decided to oblige them to pass a screening and testing process open to them and to all other applicants in an admit- tedly distressed economic area of high unemployment, which same area includes a high proportion of aluminum die cast- ing plants and tool and die makers. Respondent, in fact, ad- duced a massive testimonial and documentary body of evi- dence as to the alleged reasonable and nondiscriminatory business nature of its hiring motivations. Let us then first consider the testimony of Connor and Key. At the time of his testimony on October 16, 1990, Roger Connor held the position of operations manager and acting division manager of Harvard Industries at the Ripley, Ten- nessee Die Casting Division. He was hired there by Harvard on June 1, 1989, having applied for a position on May 30, 1989. Prior to that, he had been a long-term managerial per- son at PI and its predecessors at the Little Rock plant and, lastly and briefly, at the Malvern plant. Since his high school graduation, Connor has been involved in the die casting busi- ness for 28 years for a variety of employers in various posi- tions, including tooling engineer and supervisor of 25 die cast machines for a die cast company located in Jackson, Michigan, where he later succeeded to the position of a plant superintendent responsible for 270 employees. After about 5 years there, he became employed at the UDC Little Rock plant in September 1984, where he held the position of chief tooling engineer at both the Little Rock and Malvern plants, to whom 18 persons were directly subordinate. In June 1986, the then-owner, Lewis Zachery, fired the Little Rock plant general manager. For 2 months, Connor ran the Little Rock plant as the manufacturing manager until Au- gust 17, 1986, when Zachery appointed him the plant man- ager. He held that position until the Little Rock plant closure in early 1989. Connor also became the sales manager for both Little Rock and Malvern plants in 1987 and continued in both functions. Michael Nowak was the Malvern plant manager. Two persons, one of whom was Deborah Key, a sales associate, were directly subordinate to Connor. That ar- rangement continued until the sale of assets of UDC and the cessation of UDC’s operation on Friday, October 14, 1988. On Monday, October 17, Connor was rehired by PI’s president and chief executive officer, Jim Alford, and his du- ties remained unchanged. Virtually all other Little Rock man- agers, supervisors, salaried persons, and hourly rated employ- ees were forthwith rehired by PI in an almost pro forma fashion without need for screening, testing, or physical ex- amination. Alford testified that he decided on October 14, 1988, to hire Nowak as well as Malvern Personnel Manager Margie Kratz, UDC Malvern Plant Industrial Engineer David Wat- son, and Connor. Alford testified that unbeknownst to Con- nor, his employment was to be temporary despite admitted representations which reasonably led Connor to believe that his position was permanent regardless of whether the Little Rock plant was ultimately closed. Indeed, on the December 1989 announcement of the intended closure of the Little Rock plant, Connor was led to believe by Alford and Gaddy that he was to become and, in fact, was made a vice presi- dent of PI with a $7000 raise in pay. Further, he was told that he was to become a technical advisor to Alford and Gaddy with respect to customer relations and whose duties would be called on as additional die casting enterprises were about to be acquired by these entrepreneurs. In an attempt to explain the disparity between his alleged temporary in- tended employment status and what overtly appeared to be permanent status, Alford offered two explanations. First, he admitted somewhat reluctantly that he and Gaddy had misled Connor as to his status and as to the possibility that Little 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Rock might survive. Thus, although Keenan and Gaddy had adamantly decided prior to purchase that Little Rock was to be shut down, Connor was misled into believing in its pos- sible survival over Malvern, and, supposedly acting out a charade, Gaddy solicited Connor’s opinion as to why Mal- vern, instead of Little Rock, ought to be closed down. Alford, in fact, admitted that Connor was misled because he and Gaddy needed Connor’s assistance in transferring the Little Rock customers to Malvern. Alford went so far as to testify that on the December 1989 closure announcement of Little Rock, he concluded that per- haps Connor might have a future with PI after all. Alford testified that he perceived in Connor a technical proficiency and an ability to relate to customers regarding their technical problems with PI products, which served as a perfect com- plement to Alford who, as a lifelong account, was admittedly ignorant of the technical aspects of the aluminum die casting industry. Alford testified that he recommended to Gaddy that Connor be retained with perhaps an eye to permanent status. Gaddy, however, either having a greater appreciation of Con- nor’s ability or acting with a greater depth of enhanced de- ceit, went beyond Alford’s recommendations and made Con- nor a PI vice president with a $7000-per-annum pay raise and brought Connor to the Fayetteville headquarters to de- scribe to him his new office facilities. Connor’s testimony is uncontradicted that he told Gaddy that he had some doubts as to just where he would fit into this operation but that Gaddy assured him that he could serve as technical advisor in an expanding operation of accreted die casting, and tool and die plants. Further, Connor was so explicitly assured that, on Gaddy’s urging, he committed himself to a lease of a residence in Fayetteville while still bearing the expense of a Little Rock residence. The disparity in Alford and Gaddy’s treatment of and representation to Connor with that of a sta- tus of temporary employment is so great that either Alford’s testimony as to such temporary status is false, or he and Gaddy engaged in extremely deceptive conduct in dealing with Connor. Of course, it is in aid of Respondent’s position regarding Connor’s credibility that he be perceived by the finder of fact as a temporary employee with whom Respond- ent’s confidence as to unlawful hiring motivation would not be shared. Either way, credibility of Alford and Gaddy is im- paired. Ultimately, the objective treatment of Connor up to the point of disagreement as to the handling of the former Little Rock customers, strongly suggests that his status was not originally intended to be temporary. Further, Gaddy and Alford, did solicit Connor’s opinions and confidences regard- ing the continued operation of Little Rock versus Malvern, regardless of whether done as a charade or not. It was Connor who first broached the topic of the dif- ferences in the hiring procedures at the two UDC plants, i.e., the elaborate screening and testing procedures performed at Malvern, contrasted with the almost pro forma retention of UDC employees at Little Rock. Connor testified that he en- gaged in several conversations regarding this topic the week before and during the first month of PI’s operation, but most- ly concentrated in the first 3 weeks of that operation. Connor testified that he engaged in a conversation with Alford about 1 week before the actual testing process com- menced, which would have put it at some point in the mid- week prior to the October 14 closure. Connor testified that during this conversation, Alford first revealed to him that the Little Rock applicants would not be subjected to the same screening process as would the Malvern applicants and that Connor asked him to justify that decision. According to Con- nor, Alford explained that the Malvern plant was at that time less busy than the Little Rock plant and it was less disruptive to utilize a screening process there. Also, Alford told Connor that higher insurance costs in Malvern necessitated physical examinations at that location. In cross-examination, Connor did not dispute the accuracy of Alford’s explanation. How- ever, despite such accuracy, Gaddy and Alford at no time, either during the investigation of the case nor at the trial, ever asserted those reasons as PI’s motivating factors for screening UDC employees at Malvern. Alford did not clearly deny this aspect of his statements to Connor regarding the reasons for nonscreening at Little Rock, nor did he clearly deny having the conversation. Again, Alford’s testimony would have us believe that the real reason for not screening the Little Rock employees was that a closure decision of that plant had already been made and that it was felt necessary to PI’s interest to withhold that true motivation from Connor. If this is true, there is no explanation for Respondent’s fail- ure to tell Connor, way back then, the reasons it had ad- vanced later in litigation to be the motivating factors, i.e., the planned expansion of custom die work at Malvern with its alleged inherent unique demands of ‘‘statistical process’’ quality control and doubts that the Malvern work force pro- vided the most capable and adaptable work force. If true, it would have been the most logical and readily available dis- tinction because Little Rock employees, unlike Malvern em- ployees, performed all custom work and had already been trained in the type of quality control processes supposedly in- tended for Malvern employees. Yet, Alford elected to proffer Connor another false explanation. Again, we see Respondent as being either in the position of misrepresenting in testi- mony the date of its intention to close Little Rock in order to explain why it did not screen Little Rock employees, or misrepresenting to Connor its complete intentions as to Little Rock. It is, of course, advantageous for Respondent’s defense to establish that the Little Rock closure decision was made final prior to the institution of the screening process rather than afterward. Connor testified that he thereafter had several conversa- tions with Alford regarding the subject of the testing of the UDC Malvern applicants. He variously fixes the number as two or three, or as three or four, or as ‘‘very many.’’ The dates and places of each of these meetings are not always clearly identified, nor does Connor always specify whether anyone else was present. It is also not clear whether the ob- scurity was due to a lack of recollection or the nature of the questions put to him or not put to him by counsel. Nor was the sequence of some of the topics totally clear until further examination by the Union and Respondent on cross-examina- tion, when Connor became more certain that the next series of conversations with Alford gave rise to the subject of PI’s awareness that if it hired a majority of the Malvern UDC plant employees, it would be obligated to recognize and bar- gain with the Union as their bargaining agent. The obscurity of direct examination was lifted as Connor, with greater cer- titude, explained the basis for subsequent discussions wherein he raised the subject of the Malvern hiring process by mak- ing accusations to Alford and/or Gaddy. 673 PRECISION INDUSTRIES Connor testified that after that pretesting initial conversa- tion with Alford, he had three or four subsequent conversa- tions, commencing no later than October 17, during the first month of PI’s operation with Alford about the hiring process at Malvern wherein Alford, in explaining the reasons for test- ing, told him that if a majority of Malvern UDC employees were hired by PI, there would be a need at least to recognize and bargain with the Union. Connor testified that he did not discuss with Alford the nature of the testing process itself, of which he was then ignorant, but only that Malvern had one and Little Rock did not. Connor testified with more specificity as to those con- versations as follows: Jim Alford went on and explained to me that the proce- dures that they were using, that if less than 50 percent of the employees ended up being former employees, they would not have to recognize the union. But, that if over 50 percent of the new employees were former employees, they would have to at least bargain with the union. He also stated that Mike Nowak had convinced him [Alford] that this was the way to go, that Jim Keenan and Bob Gaddy in particular had some concern about it because it would require shutting the Malvern operation down for at least a week and slowly building it back up. They were worried about how it might jeop- ardize the customers. But, Mike Nowak had convinced him it was the way to go and that’s the way they went. Connor gave no further context to these conversations, i.e., location, who was present, what specifically was said that precipitated this statement by Alford, or what exactly was said about the hiring procedure before that moment except that it was raised first by Alford in explanation of the Mal- vern hiring procedure and how it would affect union rep- resentation. Thus it is not entirely clear whether Alford’s statement was made directly in response to a repeated ques- tion by Connor as to why there was a screening process at Malvern. If so, there is no explanation by Connor why he had persisted in asking that question in light of Alford’s pre- vious explanation, which Connor admitted was at least based on facially true facts. Connor admitted that it made economic sense to close one of the two plants. He, Key, and/or other witnesses corroborate Alford’s explanation that one of the two plants had to be closed, that despite certain advantages to the Little Rock location, it was highly unprofitable, had a higher scrap problem, and was saddled with machinery in desperate need of repair or replacement. If Connor suspected that the Little Rock plant was not put through a screening process because it was destined to be the choice of an inevi- table closure, he did not express it to Alford. Rather, he testi- fied that he construed Alford’s reference to the possible bar- gaining obligation as the motivation for the institution of a testing procedure at Malvern. In direct examination, the se- quence of his recollection referred to his accusatory con- versation prior to the above testimony regarding hiring ratios. In cross-examination, he explained that Alford’s allusions to the hiring ratios and bargaining obligation preceded and mo- tivated his accusations. Thus he testified in cross-examination in answer to my questions: I’m stating that on two or three occasions when I had to be in a meeting with whoever happened to be there—if Mike Nowak was there, I would generally ask him—I should have been asking him, ‘‘What’s the ratio of the previous employees versus total employees?’’ I made the statement, ‘‘What’s the count? How are we doing on getting rid of the union?’’ When I was in meetings that Nowak would be involved with, I would ask, ‘‘How are we doing on getting rid of the union?’’ I should have said it differently. I should have said, ‘‘How are we doing with ratios? Are we maintaining less than 50 percent former employees versus total or not?’’ And whenever I would say, ‘‘How are we doing on getting rid of the union?’’ whoever was present would immediately tell me, ‘‘We can’t say that. Don’t say that. We’ve never said that. That’s not the reason.’’ In direct examination, Connor had testified that in one of those accusatory conversations with Alford, the latter re- sponded, ‘‘[W]e can never say that,’’ but Alford did not deny it. In examination by the union counsel, Connor testi- fied that his accusations of discriminatory motivations were also made at group meetings and that one of two or three other such accusatory confrontations occurred at the Harrison plant, at which meeting Nowak and Gaddy simultaneously responded, ‘‘[W]e can never say that and we will always deny that is the reason.’’ Again, the context of the conversa- tion, the nature of that and other meetings and other details were not elicited from the witness. As noted above, in cross- examination, Connor significantly changed the nature of re- sponses to his accusations to include a denial which was ab- sent from the first recollected accusatory confrontation with Alford. The General Counsel emphasizes that first conversa- tion in the brief but ignores the subsequent conversations. Attempt was made to elicit categorical denials with point blank questions as to whether he had made certain state- ments. Alford denied the truth of Connor’s accusations that the Malvern hiring process had been motivated to avoid union recognition. When asked about Connor’s accusations, he admitted that from mid-October 1988 to mid-March 1989, Connor had questioned him as to ‘‘how it is going with get- ting rid of the Union’’ and stated ‘‘we all know that they were doing this just to get rid of the Union.’’ Alford testified that he responded that it was ‘‘not true and you can’t say that.’’ At this point in his testimony, Alford had an opportunity to supply the context for these numerous conversations. Ex- cept for the Harrison meeting, he failed to do so other than to testify that Connor never explicitly stated the basis for his accusations. Alford did not deny that certain other conversa- tions had, in fact, occurred and preceded the accusatory con- frontations, i.e., the first conversation where Alford gave a nondiscriminatory but yet false explanation to Connor for the different hiring procedures at Malvern, and subsequent dis- cussions concerning hiring ratios and consequent possible bargaining obligations. Thus he failed to provide an excul- patory, mitigating context to explain why an objective rec- ognition of the impact of a hiring of a majority of UDC Mal- vern employees may have been discussed between himself and Connor. Instead, we are left only with Connor’s version of conversations which had preceded the accusatory con- versations. Alford conceded that there had been a conversation at a meeting at the Harrison plant where a similar accusation was 674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD raised by Connor. He placed it in December 1988 at a time after Connor had been apprised of PI’s intention to close the Little Rock plant, and where Gaddy, Alford, Kindy, Connor, and ‘‘others’’ were present. Alford testified that the meet- ing’s objective was the coordination of the transferring of machines and supplies from Little Rock to Malvern. He could not recall with any certainty if Key was also there. Alford testified that just before a break in the meeting, Con- nor asked ‘‘how we were doing about getting rid of the Union?’’ Alford testified that he and Gaddy simultaneously answered that ‘‘it was not true’’ and they both asked ‘‘where did you get that?’’ According to Alford, Connor did not re- spond but remained silent, looking ‘‘sheepish.’’ Alford amended that testimony by stating that Connor ‘‘chuckled.’’ Alford’s testimony confirms Connor that, indeed, simulta- neous responses were in fact made to Connor’s accusations, an otherwise dubious spectacle. Strangely enough, Kindy denied having been present at any meeting where any reference was made to discriminatory motivation with respect to the Malvern hiring process. Nowak’s and Key’s testimony will be discussed separately. Gaddy testified that there were no managerial ‘‘staff’’ meetings where the topic of frustrating union representation at Malvern was discussed except for one meeting at Harrison which was one of the few that Connor had attended. Accord- ing to Gaddy, Connor raised the question of frustrating the Union at Malvern. Gaddy further testified that Connor was ‘‘sensitive’’ about the potential closure of the Little Rock plant and, as he did on two or three other occasions, sug- gested that avoiding union representation at Malvern was a good reason to select it for closure. Connor did not rebut this and admitted that it was his personal preference. He could not recall making the suggestion but testified that it is some- thing he very well might have done as he prefers a nonunion plant as a sales solicitation device. Alford’s testimony sug- gests that this meeting dealt with the immediate logistical ef- fectuation of an already made decision, whereas the elicitation by Gaddy of Connor’s opinions regarding the choice of plant closure occurred earlier than that. According to Gaddy, he responded at the Harrison meeting that union representation was not a factor in the decisional process, a much less hectic outburst than that described by Alford and Connor. Gaddy testified to various other nonstaff meeting con- versations with Connor at unspecified, undated, context-free occasions when, as Gaddy characterized it, Connor would ‘‘try to draw us out’’ by stating ‘‘well, your whole plan was to get rid of the Union. That’s why you set this up [the Mal- vern job applicant screening procedure],’’ and other com- ments similar to that testified to by Connor. Gaddy testified to a similar response as had Alford, except the somewhat more vehement denial was added, i.e., ‘‘it’s absolutely not true—there is no plan, nor ever was one to get rid of the Union . . . [but rather the plan was to get a more efficient operation].’’ Thus Gaddy went well beyond Alford in his version of the denials he and Alford allegedly made to Con- nor’s admitted, persistent accusations of discriminatory moti- vation. Although Alford testified that Connor did not explicate the basis of his accusations when he made them either at the Harrison meeting or other confrontations, there is nothing in their own testimony nor any evidence to explain why Connor persistently repeated them. Nor is there any evidence that these accusations engendered any more of a reaction than the alleged disavowals. Again, we are left with Connor’s undenied testimony that there had been preceding explana- tory discussions of the hiring ratios and its legal consequence on the status of the Union as employee bargaining agent. Moreover, these hiring ratio discussions had been, in turn, preceded by what was clearly an initial false explanation made to Connor as to the hiring differences at the two plants. In addition to the foregoing conversations with Alford and Gaddy, Connor testified that he had similar conversations with Nowak. According to Connor, he had frequent, even daily contact with Nowak during the first month of PI oper- ation because Connor was concerned about jeopardizing de- livery commitments to his customers served by the Malvern plant. Nowak initially testified that his contact with Connor dur- ing that time was ‘‘almost nil.’’ In cross-examination, that was changed to ‘‘not a lot,’’ and he conceded that the clo- sure of the Malvern plant for a week of employee screening did cause a lag in deliveries which did give rise to cus- tomer’s concerns, which were in fact conveyed to him by Connor. Connor testified: He also had told me during that time that if we could—if, after the hiring procedure was completed and we maintained less than 50 percent of the union em- ployees—former employees, I should say—we would not have to recognize the union, but on the other hand, if, following these hiring procedures, we ended up with more than 50 percent, we would have to at least bar- gain with the union. He also said that the first month would tell the story. Within a month’s time we could feel pretty comfortable one way or the other [i.e., in knowing the results]. During one of [those] periods, and I believe it was pretty close to the end of the first month, he stated to me that at that time they had 43 employees in the plant and out of that 43, 17 of them were former employees. So, at that point, it looked good. He’d also told me during that time that I really shouldn’t ask no questions, that ultimately this would go to court and the less I knew about it, the better off I would be. Connor testified that he had asked Nowak for a daily count of the hiring mix because customers of whom he solic- ited business asked him whether PI was unionized. In cross- examination, he admitted that he assured customers that al- though unionized, the Malvern plant never lost a day of pro- duction in negotiating a collective-bargaining agreement. Despite the fact that Connor had already referred to the ‘‘first month,’’ counsel for the General Counsel elicited the following testimony: Q. Now, you testified—Did Nowak say anything about the first month? A. He mentioned the first month would tell—He felt that it would take at least a month before we would have a good feel for what the numbers look like and we will end up with 50 percent or less former employ- ees in the plant. 675 PRECISION INDUSTRIES Thus, by being led over the same ground again, Connor was given a second opportunity in which a more positive inten- tion of hiring less than a majority of UDC Malvern employ- ees was attributed to Nowak. Connor testified that in early December 1988, in conversa- tions with Alford and Gaddy, he was told of a decision that either Malvern or Little Rock would be closed and that PI was leaning toward closing Little Rock but that they sought Connor’s opinion as to why Little Rock should not be closed. Connor’s testimony is corroborated by Alford who explained that Gaddy tried to arrange the scenario to make it appear that Connor’s opinion was given meaningful con- sideration when, in fact, the decision supposedly had, long before, become final to close the Little Rock plant. Connor is further uncontradicted that before the final decision was made, he was flown to Fayetteville and shown where his new office was to be located. Thus Connor was already, in effect, notified that he was to be relocated out of Little Rock, i.e., an indirect notification that he was to be relocated and promoted regardless of which plant was closed. Connor did not rebut Gaddy’s testimony that Connor was told that the relocation was also an attempt to separate him from Key with whom he was having an admitted (by her) romantic re- lationship. Connor did not rebut Gaddy’s testimony to the ef- fect that he admonished Connor with respect to that relation- ship, of which more will be discussed later. Connor testified that on about December 15, later in the same week of the above conversation, he was notified by Gaddy that the decision had been made to close down the Little Rock operation. He testified that Gaddy’s explanation made ‘‘good sense’’ and that he agreed with Gaddy that it was the obvious choice. Connor testified, without contradic- tion, that in a subsequent conversation, Alford told him that Co-owner Keenan had decided years earlier that if UDC were acquired, Little Rock must be closed and that Connor should not waste his breath talking about it. Thus Connor ad- mits that he did not accept the decision so benignly that he did not try to some degree to cause Gaddy to reconsider the issue. However, Gaddy confirmed Connor’s testimony that when first notified of the Little Rock closure, Connor’s calm and reasonable reaction was that it was a ‘‘good idea.’’ Alford testified that after Connor was offered the vice president’s position in Fayetteville, he insisted that PI offer all the Little Rock supervisors and managers an opportunity to transfer to the Malvern plant. Alford testified that PI ac- quiesced in the request because it needed to placate Connor whose help was needed in transferring the Little Rock cus- tomers to Malvern. Alford testified that when Connor was notified of the deci- sion to close Little Rock, Gaddy told Connor, as well as Key, that PI would do whatever was necessary to accommo- date the Little Rock customers in a smooth transition to Mal- vern even if it took 6 months to do so. Alford testified that because the November and December sales projection turned out to be much less than expected and because of the loss of Little Rock’s largest customer, OMC, Keenan had insisted on an immediate closure on reviewing the January report of December sales. Alford testified that when he informed Con- nor of the decision at a meeting in Fayetteville, Connor ve- hemently accused him of lying regarding the timing of the decision and also accused Gaddy of breaking a promise as to the length of the period of transition. Alford testified that he thought Connor had become temporarily ‘‘insane’’ be- cause of the vigor with which he complained about the sud- denness of the move. Alford became incensed at Connor’s failure to acquiesce and, in testimony, characterized Connor as that ‘‘S.O.B.’’ and that he had felt the urge to physically strike Connor. Instead, he led Connor to Gaddy who took Connor to dinner where he calmed down. Gaddy testified generally that Connor was irate at the time. Thus, even Re- spondent’s own testimony suggests that Connor was not irate over the closure decision itself nor over his relocation from Little Rock and separation from Key who was to transfer to Malvern. Rather, it was to the acceleration of the closure. Connor actually spent most of the month of February 1989 at Malvern assisting the transfer of machines and customers from Little Rock. He spent only about 2 weeks in Fayette- ville until he was terminated in mid-March. Alford admitted that he had misled Connor at the outset as to the possibility that Little Rock might remain open and withheld information from Connor that would have educated him as to the ultimate closure decision, while Connor was of the impression that Little Rock would remain open. He admitted that based on what he stated to Connor, it would have been reasonable to expect that Connor would have told the Little Rock employees that the plant was to remain open. He declined to call these misrepresentations ‘‘lies’’ but rather characterized it as simply ‘‘doing business.’’ Connor did not rebut testimony of Gaddy and Alford that he became irate over the timing of the decisions which, in fact, was contrary to what had been told him would be nec- essary to smoothly accommodate the needs of Connor’s cul- tivated clientele at Little Rock. Daniel Gray, a former em- ployee at UDC and coworker with Connor at Harvard at the time of Connor’s testimony, testified that Connor told him about a meeting with Gaddy and Alford in Fayetteville which so enraged him that he wanted to ‘‘quit’’ right there and then but that he later calmed down. More of Respondent witness Gray’s testimony will be discussed hereafter. Connor testified that at the December 15, 1988 closure no- tice meeting, he was told that maybe the Little Rock employ- ees could transfer to Malvern without testing, but on Decem- ber 17, Alford told Connor in a meeting in Little Rock, in- cluding Dale Kindy, that the Little Rock employees will have to be tested because eventually the matter would have to go to court. Only Kindy’s testimony can be construed as a pos- sible denial of this conversation. Respondent witness Kindy testified that in December 1988, he attended a meeting with Connor wherein Connor told him that the Little Rock plant was to be closed and that any Little Rock employee who wanted to transfer to Malvern had to be tested because the Malvern employees had been subjected to testing, but there was no reference to the pur- pose of ‘‘avoiding a lawsuit.’’ Kindy had no recollection of what else was said except that he and Connor hoped that a good part of the Little Rock employees would be transferred and that Connor felt responsible for them and also felt re- sponsible to the Little Rock customers. Kindy testified at first that he was never present but later admitted that he at- tended so many meetings and discussions at the time that Alford might have been ‘‘in and out’’ and ‘‘probably’’ was present. Kindy denied hearing at any meeting any reference to the Union or to testing for the purpose of avoiding the Union or any reference to a possible court case. His de- 676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD meanor, as was his shifting recollection, was marked by un- certainty and hesitancy. Connor testified that he contacted Nowak, who assigned Watson to set up testing procedures at Little Rock. A meet- ing with Little Rock employees was held on December 22, and testing was announced. At the time, there were about 50 Little Rock employees. Of about 40 to 45 who took the test, 40 percent failed the written test and manual dexterity test (16 are alleged as discriminatees). Connor testified that Kindy and Watson worked together and Kindy was advised daily of the names of applicants who passed the tests. Con- nor testified that at one point Kindy became concerned be- cause morale was being affected among employees who had not been notified of their eligibility to take the physical exam. Connor testified that Dale Kindy was shocked that his own brother did so poorly on the first part of the tests. Accord- ingly, he testified a meeting was held with himself, Nowak, Watson, and Kindy at 6 or 7 p.m. in early January 1989 in Malvern to discuss the entire testing procedure. The topic discussed was the number of Little Rock employees who had failed the testing and how close they were to the cutoff scores. According to Connor, Nowak stated that three or four Little Rock employees were just under the cutoff point. A discussion ensued about lowering the cutoff because of the inadequate number of Little Rock employees being hired at Malvern. According to Connor, Nowak stated that he could not lower the cutoff score more because that would mean that Don Pilcher, the Union’s president, would be hired. The discussion then turned to the possibility of hiring certain Lit- tle Rock employees as custodians who need not be tested. Kindy denied having been at any meeting where there was any reference to Don Pilcher. However Kindy did testify to being present at meetings in Malvern with Watson, Nowak, and Connor, as asked for by Connor, to discuss the number of Little Rock employees who were eligible to transfer to Malvern, and that Watson did produce a list of names of eli- gible employees and those who failed, which they perused, and that there was a discussion of the cutoff scores. Kindy corroborated other elements of the discussion testified to by Connor. Kindy also admitted that he argued that Little Rock had good employees who should be hired despite flunking the tests. Kindy admitted that he was particularly concerned that Joe Conick, a valued leadman, had failed the tests and that Nowak suggested Conick could be hired as a custodian without a test. Kindy admitted that he complained at the meeting about other qualified employees who had failed. Watson and Nowak denied certain references to Pilcher which clearly related to another incident, which we will en- counter in the testimony of Key, relating to adjustment of cutoff scores. Neither explicitly denied the Malvern meeting arranged at the request of and with Connor. Nowak testified that he had maintained a ‘‘business’’ relationship with Pilcher and had had no personal animosity toward him. I find Connor’s testimony to be more certain and convincing than Kindy who, in large part, corroborated him. I do not find the testimony effectively contradicted. Another incident argued by the General Counsel to be di- rect evidence of motivation in the testimony of Connor in- volves an airplane ride in one of the two small commuter craft owned by PI or Pace and used for visitations to cus- tomers. There is no dispute that Connor, Key, and Alford en- gaged in a conversation in such aircraft on the way to visit a client, wherein reference was made to the hiring procedures at Malvern. Connor testified that on some occasions, Scott Bull was present on similar airplane excursions, but he could not recall whether Bull was also present on this occasion. Key de- scribed them as being alone, i.e., Key and Alford side by side in the passenger compartment and Connor facing them directly across. Connor insisted that all conversations with Alford concerning the Malvern hiring procedures occurred during the first month of operation or earlier. Connor testi- fied that he believed that this trip occurred in October 1988, and he was about to refer to another trip when he was inter- rupted by counsel. Key testified that there were several other such business air trips. Connor described the destination as a Little Rock plant customer, i.e., Stemco, located in Long- view Texas, a customer cultivated by Connor and Key. Key testified that the destination was either Stemco in Texas or another customer, Widelite. She vacillated in fixing a date, at first placing it as some date between January and March at a time when there were problems meeting promised delivery dates to Nibco, the Malvern plant’s largest propri- etary customer. In cross-examination, she placed it as some time in February. Alford testified that his only ‘‘recollec- tion’’ of being on such airplane ride alone with Connor and Key was on January 10, 1989, on a flight to Nacogdoches, Texas, to visit Nibco, the purpose of which was for Connor and Key to introduce Alford to one of the Malvern plant’s largest customers. A flight log was produced for that date, but it is only Alford’s recollection that establishes that it is the only date when all three flew alone. Alford testified in conclusionary terms that the trip postdated the decision to close the Little Rock plant because Connor and Key expressed resentment of having to become marketing people depending on the performance of Nowak and Watson to satisfy their customers. Connor testified: We were going to—I say we. It was Jim Alford, Debbie Key and I. We went down to Longview, Texas one day to visit Stemco, a customer down there. And during that trip, Debbie Key asked Alford if he—how the hiring was going at Malvern, that she was also con- cerned from a customer standpoint. ‘‘Are we going to make all our commitments and deliveries?’’ He went on to explain to her that Mike Nowak had convinced him that this was the way to go. He’d told him that he could shut this plant down for about a week and in a week’s time, he could have it up and running again, that he had not got it up as fast as they thought they would, but overall he thought he’d done a good job get- ting the plant up and operating again with basically new employees. But, the hiring procedure would remain the same, that they were too far into it now to back out and change their mind. He also went on to explain that Jim Keenan and Bob Gaddy shared the same concerns that she did, that possibly we could jeopardize the de- liveries to our customers and that they weren’t nec- essarily in favor of this, that Mike Nowak had con- vinced him that this was the thing to do and that they were too far into it now to back out and they were going to continue with these procedures. 677 PRECISION INDUSTRIES Key testified: Again, we were going to Texas to—I’m not sure if it was Stemco or Widelite. I didn’t remember for sure which customers at the time I gave the affidavit. How- ever, I know we were going to one or the other located in Texas. We were in one of the smaller planes and Jim and I were sitting in the back of the plane, side by side together. And because I had had some customers call- ing, specifically Hi-Tek, and they had not gotten orders on time, I was concerned about how many employees they had gotten into the Malvern facility. So, I asked Jim how things were going at the Malvern plant, and he said, ‘‘Pretty well, I think, or at least they’d better be,’’ because Jim Keenan was opposed to doing any- thing that would disrupt production or create problems with our customers, and that Mike Nowak had talked Keenan and Gaddy into getting rid of the union. In cross-examination, Connor testified that Alford did not use the phraseology, ‘‘getting rid of the Union,’’ but rather referred to the ‘‘hiring procedures.’’ Curiously, Respondent had Connor confirm his 1989 affidavit testimony which, un- like his direct examination, quoted Alford as explicitly stat- ing in that conversation a discriminatory motivation, i.e.: What I recall is Alford saying was that Nowak con- vinced Alford about the hiring procedure that they had to keep the number of the former employees under 50 percent so the Union would not have to be recognized. In her cross-examination, Key was insistent that Alford’s phraseology was that Nowak had talked him into ‘‘getting rid of the Union,’’ and not ‘‘using the hiring procedure to keep the Union out.’’ In cross-examination, Key insisted that she asked Alford how ‘‘things were going with the Union’’ at the Malvern plant, and not how things were going in the hiring process at Malvern. This is inconsistent with her own direct examina- tion as well as Connor’s trial testimony and his affidavit tes- timony. Connor’s affidavit testimony as to how she phrased her inquiry to Alford was read to Key, but she insisted that her cross-examination recollection was accurate. She admit- ted that in none of the three affidavits that she had submitted in the investigation of this case did she refer to any ‘‘Stemco airplane ride in relation to a conversation with Alford, Con- nor and the question of the Union, or operations at Mal- vern.’’ The affidavit was not proffered into evidence. Alford testified that after Connor and Key engaged in un- specified disparaging remarks about Nowak and Watson re- garding their lack of sensitivity and responsiveness to cus- tomer needs, Key reiterated a complaint she had began rais- ing in December, which he testified was ‘‘basically’’ that her customers were calling about the Malvern plant’s failure to meet its delivery commitments, and that Respondent would be in jeopardy of losing those customers. Alford character- ized such complaint as ‘‘the sky is falling.’’ Alford’s ram- bling narrative characterization of his response to her appears to be that he told her that it was true that a ‘‘few shipments’’ were late, but that PI was ‘‘under pressure,’’ and she had to ‘‘bear with us’’ and be inconvenienced ‘‘for a month or two.’’ Alford’s testimony does not clearly distinguish what he said to Key in response to her earlier similar complaint and what he said to her on the airplane. He admittedly be- came angry with her complaints about the closure of the Lit- tle Rock plant and her accusations that the PI management ‘‘don’t care anything at all about the customer. Blah, blah, blah.’’ Alford admitted having come to an intense dislike for Key premised on these complaints and other alleged ‘‘disrup- tive’’ conduct. Alford testified that although angry with Key, he at- tempted to assuage her by impressing on her the ‘‘pressures that Mike Nowak and David Watson and all the people in Malvern are under today’’ and promising that the ‘‘prob- lems’’ will work out. Alford also testified: Well, when I was explaining to her why if there were shipments late and why there were shipments late, es- sentially what I told her was, ‘‘They’re having trouble hiring people, hourly workers, at as rapid a pace as Mike Nowak thought they would be able to.’’ I said, ‘‘We decided to have this hiring process.’’ Gaddy and Keenan were nervous about it from the first minute be- cause they were—I was trying to say, you know, ‘‘You’re saying Pace is not concerned about customer service. Let me direct your attention to the two highest officials. They are very concerned about customer at- tention.’’ They were concerned about instituting the hir- ing processes that Nowak and I decided to institute be- cause they were afraid it would leave the plant down and not operating too long of a period. ‘‘So, they share your concerns, Debbie. If you’re questioning the valid- ity of our concern for good customer service, you’re wrong because Gaddy and Keenan also were concerned. Mike Nowak had estimated he could go through this hiring process and get workers rehired and get back into production within one week. However, the 100 or 200 people we thought would apply didn’t show up. 640 people showed up. The people that we thought would pass these tests, you know, at a goodly rate, flunked these tests at a goodly rate. However, we’ve started this process and we’re sticking to it. We’re not going to change horses in the middle of the stream. It is going to delay our getting that plant back up to the level of production we would have desired by late De- cember or early January, but we’re not going off the course. We’re sticking with it. They will get that work force in place. They will begin making shipments.’’ Alford denied that he made any reference to ‘‘any attempt or plan to get rid of the Union’’ or to frustrate the hiring of UDC employees. Key testified without contradiction to a detailed enumera- tion of customer complaints of late deliveries caused by understaffing at the Malvern plant. She testified that she did persist in making such complaints until a point in time when she concluded that PI managers did not care about those complaints. Alford testified without contradiction to a series of con- frontations with Connor which commenced from a mid-Janu- ary realization that Little Rock losses were influenced by fac- tors other than low sales volume. Alford concluded that Con- nor had been soliciting business based on costs which were not accurately calculated in an inordinately low bid. He con- fronted Connor on that, as well as on a continuing scrap 678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD problem which was exacerbated by the apparent theft of a high amount of aluminum ingots. Alford testified without contradiction that in late January, he confronted Connor about an unacceptable situation regarding Little Rock cus- tomer, Delta. Alford testified he had ordered Connor to ob- tain a repricing of the Delta work. Alford testified that by mid-February, the problem was not corrected and that, when listening to Connor’s weak explanations of nonaction, Alford said to himself ‘‘why do I need this man?’’ On March 13, Connor and Key were terminated because of ‘‘differences in business philosophy.’’ They executed agreements which lim- ited their communications with other entities, i.e., customers and employees, and in return were granted severance pay of about 90 days. Despite Key’s admission of a romantic relationship with Connor, at one point they intended to marry, and despite unrebutted evidence of a close business relationship between the two of them in running the Little Rock plant, Key failed to testify that Connor confided in her his early conversations with Alford, Nowak, and Gaddy regarding the hiring process. She testified, however, that Connor expressed to her in ‘‘dis- cussions’’ his belief that the Malvern hiring process was in- stituted to avoid recognition and bargaining with the Union. She testified that the ‘‘whole staff’’ similarly made such comments. She named only Little Rock Warehouse Manager John L. Crangle and Little Rock Quality Assurance Manager Joseph L. Honeycutt. Key testified in cross-examination that she did not hear Connor raise the subject of the Union at any ‘‘staff meeting,’’ and disagreed with any testimony that he ‘‘always’’ initiated conversations regarding the Union. How- ever, Connor explicitly only referred to one staff meeting, i.e., at Harrison when Key was not present. In direct examination, Key testified that after she trans- ferred to the Malvern plant, she attended ‘‘sacred Tuesday meetings’’ there which were conducted by Alford and at- tended by Honeycutt; Gifford Green; Malvern plant material control manager, Crangle; Nowak; Bull; Thigpen, Charles Boykin, Little Rock plant quality control manager; and Con- nor. (Honeycutt was also terminated on March 13, 1989.) She testified to an incident which she says occurred at the ‘‘last two meetings,’’ prior to her termination. I conclude that she meant it as one incident at one of those two meet- ings. She testified that at one point she was inattentive and considering another business matter when she was suddenly aware of Alford and Nowak both jumping up and loudly pro- claiming, ‘‘we’re not to say we’re getting rid of the Union. I didn’t say that. None of us said that. If anyone ever says [that] we will deny it.’’ She does not know to whom they had addressed these denials because she was not listening to whoever was speaking. Clearly, this could very well have been Connor, if it occurred or it occurred on that date. This is the only extent to which Connor is corroborated. No other present or former employee or manager of UDC or PI was called on to corroborate Connor or to give evidence of direct unlawful motivation. Connor and Key also testified with respect to the union animus of the UDC management that had been reinstated by PI and whom PI allegedly involved in the decision to insti- tute a hiring process and whom it clearly involved in the for- mulation of, administration of, and scoring of the screening and testing process for Malvern plant hourly rated positions. Testimony of Connor and Key most particularly concerns Nowak. Connor testified that after he assumed authority over the Little Rock plant in 1986, he participated in regularly sched- uled meetings with Zachery and Nowak. He testified that at one such meeting in 1986, Zachery stated that his ‘‘number one mistake’’ in purchasing UDC was in not getting rid of the Union at Malvern. Nowak thereupon agreed with him and stated that such failure had definitely been a mistake and that union representation at Malvern was ‘‘very costly’’ and that it caused ‘‘many headaches.’’ Nowak did not contradict this testimony, either specifically or generally, except to tes- tify in a conclusionary fashion that UDC’s relationship with the Union had been good. Key testified that in late 1986 or early 1987 she encoun- tered Nowak on one of his periodic visits to the Little Rock plant to discuss some tooling done by that plant for Malvern. She walked up to Nowak as he stood observing the jux- taposition of trim presses to the die casting machines, some- thing that had not been arranged at Malvern until after PI’s assumption of the operations. Key testified that she asked Nowak how he was doing, etc., and Nowak told her, while staring at the machines, ‘‘that was something he always wanted to do.’’ Key testified that he stated ‘‘but you couldn’t because of the Union,’’ to which Nowak answered ‘‘right.’’ Respondent argues that this testimony is not credible because UDC had a management-rights clause in the collective-bar- gaining agreement which had reserved it the right to control manufacturing processes. However, Nowak did not deny this conversation nor did he testify that it was his perception that he had such right regarding machine location. There is uncontradicted evidence that grievances had been filed against UDC with respect to movement of employees within the plant. It is not clear whether any of these grievances may or may not have related to employment movement caused by machinery movement. Key testified that on an unspecified date after the PI pur- chase, but before her transfer to Malvern, she had occasion to visit the Malvern facility, which she did regularly, which was close to her residence. She testified that she came on Nowak and Watson and walked up to them in Watson’s of- fice as Nowak was looking down at a piece of paper with a listing of names on Watson’s desk. She claimed that she heard Nowak ask, ‘‘what if I went down to [a certain num- ber]?’’ and she heard Watson state, ‘‘no, if you do that you’ll get Don Pilcher.’’ She testified Nowak then stated, ‘‘you’re right I don’t want to do that. Forget that. No way.’’ When admonished to testify not what Nowak felt about Pilcher but specifically what did Nowak say about Pilcher, she answered: Well, on more than one occasion I had heard Mike [Nowak] say that he hated him. He did not like Don Pilcher, or what he represented with the Union. Key testified to one occasion in September 1988 when she came on Nowak as he crouched down in one office eaves- dropping while Pilcher was across in another office talking to Kratz. Key testified that Nowak stated, ‘‘I hate that little sonofabitch.’’ Nowak testified that he held no grudge toward Pilcher, that he never called him a S.O.B. and that he did not hate 679 PRECISION INDUSTRIES him. Accordingly, if Nowak prevented Pilcher’s hiring by PI, it was due to some motivation other than a personality con- flict. Nowak testified that he did not convince Alford to uti- lize a testing process to get rid of the Union nor did he make statements to anyone to that effect. The balance of his testi- mony does not give his version of the foregoing conversa- tions alleged to have occurred between himself and Key or Connor. Instead, Respondent’s counsel elicited from him what were presumably intended to be categorical denials. However, the following type of testimony was adduced. I cautioned the witness as to the distinction between clearly denying that an incident occurred and not remembering or not recalling whether it occurred. Nowak testified, when Re- spondent’s counsel alluded to testimony of Connor regarding Connor’s reference to a plan to avoid union representation, ‘‘I don’t remember.’’ He testified that he was ‘‘aware’’ of no such plan. In a series of questions by his counsel which alluded to testimony of Connor or Key, Nowak was asked whether he ‘‘accepted’’ or ‘‘agreed’’ with the testimony syn- opsized in Respondent counsel’s questions. Thus Nowak ‘‘re- jected’’ Connor’s testimony regarding those daily conversa- tions about the hiring ratio and the Union, and he ‘‘dis- agreed’’ with testimony referencing his statements to the ef- fect he convinced Alford to use the testing process to avoid union representation (i.e., whether such statements were made whether true or not). He did not ‘‘agree’’ with testi- mony to the effect that he told Connor ‘‘the less you know the better,’’ and he did not ‘‘recall’’ saying anything like that. He ‘‘rejected’’ the testimony of Key regarding her testi- mony concerning Watson’s suggesting that scores ought not be lowered to avoid the hiring of Pilcher. However, when re- ferred to ‘‘sacred Tuesday meetings,’’ he did deny that the subject of ousting the Union ever arose at a ‘‘production meeting.’’ The above recital of purported denials by Nowak was ren- dered by a witness whose demeanor drastically changed. In mid-September 1990, as an adverse witness cross-examined under Federal Rule 611(c), Nowak was overtly assertive and answered his cross-examiners in a near contemptuous coun- tenance and tone of voice. When he testified on July 23, 1991, he was no longer in charge of Malvern plant, having been transferred to another Pace facility. His demeanor was passive. He answered direct examination questions in a ten- tative, uncertain, unemphatic tone of voice and physical man- nerism. His lack of assurance and lack of certitude was most pronounced when the so-called denials were elicited. Hearing him testify, one had no sense that he was in any way deny- ing that certain relevant conversations did occur between himself and Connor or Key. Clearly ‘‘rejecting’’ or ‘‘accept- ing’’ posed cryptic characterizations of the General Counsel witnesses testimony hardly deserves to be dignified with the characterization of ‘‘categorical denial.’’ Neither Nowak nor Respondent’s counsel was ignorant of the importance and significance of his testimony. Neither he nor they were inex- perienced in these matters, particularly at this stage of litiga- tion, I cannot presume that the way these questions were put and answered were necessarily the result of careless phrase- ology. Completely unanswered by Nowak’s anemic denials is in what manner or in what degree or in what particular what- soever he ‘‘disagrees’’ with or ‘‘rejects’’ those posed ques- tions. Certainly, Nowak, as a 611(c) witness, was astute and cautious almost to the point of contentiousness when pursued by counsels for the General Counsel and the Charging Party in cross-examination. Much like Gaddy and Alford, Nowak failed to provide an explanatory, exculpatory version of the context of conversations I must now find are not effectively denied. The Respondent argues that Connor and Key are not credi- ble witnesses because they were vengefully biased, mutual inconsistent, and/or contradictory and contradicted by the unrebutted testimony of third party, unbiased witnesses as to certain collateral matters, the most significant of which is Connor’s own bitterness and animosity toward Respondent. Connor’s less than lucid direct examination testimony, de- lineated above, reveals internal inconsistencies. Some of these inconsistencies are significant, e.g., at first he testified that in his first accusatory conversation, Alford had not de- nied the unlawful motivation. In later cross-examination, he conceded that Alford, Gaddy, and Nowak did, in fact, make an explicit denial. However, the rather loose language elic- ited by counsel does make it arguable that when Connor said Alford had not denied the accusation, he meant the first ac- cusatory conversation. Yet, it remained for cross-examination to establish that there had been a denial at all. Connor’s testimony at trial also varies from his affidavit testimony, e.g., in the airplane conversation Connor’s affida- vit testimony sets forth an explicit statement of unlawful ob- jective not testified to in his trial testimony. Strangely, the affidavit testimony is closer to Key’s version of the airplane conversation. It could be argued that after a lapse of time in her mind’s eye, she recalled the meaning of what was said but not the specific form of what was said, rather than what was actually stated, i.e., applicant screening was instituted to avoid hiring a majority of UDC employees, the stated or unstated ultimate objective of course is ‘‘to get rid of the Union.’’ However, both Connor and Key were adamant as to their own inconsistent, but not necessarily inherently con- tradictory versions. Although Respondent makes much of the fact that Key and Connor did meet socially on one occasion about 4 weeks prior to the trial, it is pure speculation that they rehearsed a contrived testimony, as is argued in the brief. Neither wit- ness appeared particularly dim-witted. Rather, as persons versed in the art of persuasion, i.e., sales and marketing, if they had collaborated, a much more consistent and mutually corroborated effort would have resulted. Indeed, Key force- fully resisted Respondent counsel’s effort to have her do so by reading to her Connor’s affidavit. The very inconsist- encies in testimony counteract the notion of contrived col- laboration. Yet those inconsistencies plague both their testi- mony, not only as to what particular words were said but when they were said. Connor placed all critical conversations within the first month and particularly the first 3 weeks of PI’s operation. This makes more sense than Key’s reference to February 1989. The later in time, the less likely Connor or Key would have been included in Respondent’s confidence. I discredit Alford’s testimony that PI intended Connor’s employment to be temporary. It is contrary to its objective treatment of and statements to him prior to the immediate closure decision and prior to those incidents which presumably soured Alford on Connor’s acceptability, i.e., the vociferous objection to im- mediate Little Rock closure, and Connor and Key’s per- ceived Little Rock customer ill treatment, the underbidding 680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD problem which came to a head in the Delta incident, and the scrap situation culminating in the missing ingots incident. Prior to that, Connor was made a vice president, given a raise and was perceived by Alford to be a perfect com- plement to himself, an accountant ignorant of aluminum die casting technical expertise. With respect to Alford’s reference to the aircraft ride of January, we have only his testimonial ‘‘recollection’’ that it was the only time that the three of them were alone on an air trip to a customer. Indeed, Connor was not even certain that Bull, who sometimes flew with them, was not present. Moreover, Alford’s testimony seems to speak prospectively of ‘‘early January’’ as a target date promised Key for the settling of the hiring process, whereas he places the airplane ride on January 10, a date by which hiring had pretty well approached 70 employees. I credit Connor’s time reference as the most accurate. Despite the inherent problems in Key’s testimony, particu- larly as to the above-noted inconsistency with that of Connor and what Respondent argues are the absurdities and improb- abilities of her testimony with respect to statements of Nowak, the latter failed to clearly and effectively contradict her, as he similarly failed to contradict Connor. The most troublesome aspect of Connor’s credibility arises from the issue of bias. Connor insisted at trial that he har- bored no bitterness nor resentment against Respondent at the time of trial despite that fact that he admittedly felt that he had been manipulated and duped by Respondent’s false promises, that he had been used by PI to obtain customers he had cultivated for UDC and then cast aside and fired for the first time in his life. Connor’s own description of his re- action to being terminated ranged from being stoically ex- pectant to that of being ‘‘kind of’’ crushed and humiliated. He testified that he had been in no direct competition with Nowak despite the fact that, as he admitted, there were times that the Little Rock plant had been desperate for any kind of work and, as Key testified, there had, in fact, been an overlapping of customers whom Zachery could have assigned to either plant. Connor himself admitted that it made sense that one of the two plants had to close. Yet, he testified that he was indifferent as to which plant Zachery assigned over- lapping die casting jobs. Connor was cross-examined as to what persons he consid- ered to be a ‘‘confidant’’ or a ‘‘trusted friend’’ at Little Rock. He did not refer to Key. She, however, admitted they had made plans to marry in June or July 1989 and had dated prior thereto. Connor at the time had separated from his wife and had custody of an about-to-be married daughter. Key had been twice married. It is not clear and, in any event, irrele- vant what the status of her second marriage was at the time involved here, i.e., married, divorced, married but separated, open marriage, etc. Respondent’s judgmental accusations of scandalous and immoral behavior are purely speculative and irrelevant. It is sufficient to find that they maintained a ro- mantic commitment to one and another. Although Connor was silent as to his relationship with Key, he was not specifi- cally asked about it. His testimony, however, suggests that she was not a business confidant. I accept Respondent’s argument that Connor was biased against Respondent and that Key was motivated to have been biased. I must do so because of the testimony of numerous witnesses, many of whom have no current connection with Respondent. I recognize the General Counsel’s argument that some of those witnesses clearly evidenced a personal dislike of Connor and/or Key or, in some cases, a moral disapproval of them because of their personal relationship. However, the General Counsel did not seek to rebut that testimony, which is not of sufficient internal incredibility that I must accept the essential truth of it, some of which I suspect was exagger- ated. According to unrebutted and therefore credited testimony, Connor and Key were closely allied personally and profes- sionally in the operation of the Little Rock plant. They were both intensely committed to survival and success of that plant. Indeed, when Connor assumed control over the Little Rock plant, he ‘‘wiped out’’ the entire work force and new employees. Under Zachery and PI’s ownership, Connor and Key both forcefully defended the interests of customers they had personally cultivated, even to the annoyance and alien- ation of Alford. Indeed, Thigpen admitted that Connor tend- ed to be a straightforward person who, without guile and with internal political ineptness, emotionally spoke his mind and stated his position in such abrupt manner to his super- visors and to his peers that, according to Thigpen, Connor literally committed ‘‘corporate suicide’’ while employed by PI. The most damaging testimony came from a former associ- ate of Connor’s, both at UDC and at Harvard, Daniel Gray, the former UDC quality control manager. It is Gray’s unrebutted testimony that he and Connor were both em- ployed at Harvard at about the time of Connor’s testimony. Gray testified that he recommended Connor’s employment at Harvard. Indeed, Connor was hired by Harvard on June 1, 1989, in the responsible position of operations manager, to which was later added the duties of acting division manager. Connor had applied for a position there on May 1989. Re- spondent adduced into evidence his written application which, arguably, did not explicitly identify his immediate past employers as PI. However, Connor’s testimony that he did so in the interview process was not disproved. In any event, surely Gray, who recommended Connor and who is argued by Respondent to be a person of certain morally up- right credentials, would not have lied for Connor. In any event, Gray testified to certain conversations with Connor at the time both were employed at Harvard. According to Gray, he had numerous conversations at Har- vard with Connor who stated that he was bitter with PI with respect to the way they terminated their relationship. Connor told Gray that no matter how long it took him, he would ‘‘get back at them,’’ even it if ‘‘took him to the end of his life.’’ However, Connor neither referred to the instant case, presumably pending at the time of those conversations, nor to an alleged unlawful Malvern hiring procedure. Gray, a religious missionary student, admitted that he had unsuccessfully tried to dissuade Connor from his relationship with Key, which he morally condemned, and which partially motivated his quitting his job at UDC in April 1988 which he had held since 1983. Although I must accept Gray’s testimony, I have some problems with it. Why did Connor not refer to his coopera- tion with the prosecution of this case if he had been so inti- mate with Gray? Why did he not refer to it as the means for his retribution? Gray also testified that Connor referred to the emotional confrontations with Gaddy and Alford in Fayetteville and that Connor told him he ought to have quit 681 PRECISION INDUSTRIES ‘‘there and then.’’ Why would Connor have contemplated quitting if he were so committed to holding onto his job to the extent that he became permanently embittered? In fact, the Respondent adduced into evidence the fact that Connor had even applied for the plant manager’s job at the Harvard Ripley plant way back in May 1988. Why would he have done so if he had been so perversely committed to stay- ing at the Little Rock plant and remaining in proximity to Key? Why would Connor also have been allegedly so embit- tered by being forced by Gaddy to move to Fayetteville away from Key who was moved to Malvern when he already had attempted to get a job in Ripley, Tennessee, in May 1988 and did so again in May 1989 and considered quitting during the Fayetteville 1989 confrontation? Respondent’s own docu- mentary evidence of the 1988 job application tends to add credence to Connor’s testimony that he anticipated his own termination by at least 1 month by contacting a ‘‘head- hunter’’ employment agency. Such intent could explain his ‘‘careless’’ disregard of the sensitivities of his superiors and his headstrong position regarding former Little Rock cus- tomers. It is, however, inconsistent with testimony of other Respondent witnesses as to his bitterness caused by being forced out of his job and away from Key. Gray was self-described as a friend of Connor who, him- self, did not identify Gray as a ‘‘trusted friend.’’ Respondent argues that it is significant that Connor did not confide in Gray his conversations with PI officers regarding the unlaw- ful hiring scheme as he also did not confide fully with Key. Yet, Connor did not speak to Gray about his involvement in this proceeding. Two other Respondent witnesses, also asso- ciated with Harvard, who were not even self-described as close friends, testified that Connor spoke openly about his trial participation. One such witness, Rob Ennis, the person- nel manager at Harvard, testified that Connor bragged about his status as the ‘‘star witness.’’ Harvard’s manager of engi- neering, however, testified that Connor joked about his trial participation before the Board. In absence of rebuttal, I cannot discredit Gray. His highly mannered demeanor was not as convincing as Respondent ar- gues in the brief. He did not, as Respondent asserts, spout tears of anguish. Rather, he appeared to have undergone sud- den great tension when referring to the bitterness conversa- tions. Otherwise, he was quite fluent. I cannot discredit him. I must conclude that Connor was to some degree embittered against the Respondent; if not for his termination, at least for the manner of it and for being deceived and used, as so ad- mitted by Alford and Gaddy. However, I do not believe that the depth of that bitterness is as pervasive as Respondent ar- gues, as the evidence discloses that Connor was ready to leave UDC and the State of Arkansas, and presumably Key, in May 1988 and was prepared to relocate in Tennessee again away from Key in May 1989 after his termination and had considered it in the January 1989 Fayetteville confronta- tion. Respondent argues that Key is biased because she, too, was terminated for the first time in her career and separated from her obsession with her duties at UDC and with Connor. Respondent’s characterization, in the brief, of her compulsion with her job is grossly exaggerated as it was with respect to Connor’s attitude to his job. Thus Respondent witness Karen Carruth, a former UDC associate like the Harvard managers, testified disparagingly of Key and Connor’s business tactics while she was employed at UDC. However, when counsel at- tempted to lead her into testifying as to an extreme obses- sion, she resisted and characterized Connor’s and Key’s pro- fessional attitude as one of commitment and hard work. Similarly, Respondent witness Kindy declined to be led down that same path, and he characterized Connor as having had much the same balanced and reasonable attitude to the Little Rock operation and same reactions of disappointment to its role to PI as Kindy did himself. Kindy, moreover, testi- fied that Connor was committed to SPC and quality control, whereas another Respondent witness testified that Connor disparaged quality control while employed at Harvard. Respondent argues that Key was enraged and embittered because of the disruption which PI caused in her personal re- lationship with Connor. In view of Connor’s readiness to leave UDC in 1988 and readiness to relocate to Tennessee in 1988 and 1989, questions arise as to the depth of this so- called obsessive relationship. Indeed, much of Respondent’s arguments are based on inferences, speculations, and psycho- analytical guesswork. No witness or independent evidence was presented as to Key’s alleged postdischarge, persisting bitterness despite the fact that Alford admitted spending $6000 in private investigation of both Key and Connor in preparation of PI’s defense. Indeed, Key testified that she and Connor ceased dating in August 1989 and she had not met with Connor in over a year except for the pretrial lunch- eon meeting. It is pure speculation as to whether PI was re- sponsible for their failure to marry as planned in the summer of 1989. It is true that Key did not obtain employment for a long period after her termination, but it was not established whether she had no options or opportunities for employment or whether she simply did not seek employment while enjoy- ing 90 days of severance pay. Respondent argues that Key and Connor were biased against Nowak because of a bitterness between Connor and Key and Nowak prior to her termination. Although there is sufficient unrebutted evidence that, indeed, there was a com- petition between Connor and Nowak and between the two plants, there is also ameliorating testimony. Thus Kindy again resisted being led to an exaggeration of such conflicts by explaining that Key sincerely believed Nowak was not servicing her customers with sufficient expedition, and that gave rise to confrontations and ‘‘tension’’ between Connor and Key and Nowak. Thigpen at first testified to a personality clash between Connor and Nowak of ‘‘epic proportions,’’ but later he ex- plained that Connor’s reaction was inevitable and under- standable, given the situation Connor was confronted with, i.e., being forced into a ‘‘mode of disagreeing on produc- tion’’ with respect to parts he had been producing for a long period of time which were now produced by Nowak who, in turn, exhibited a demeaning attitude toward Connor despite Connor’s past experience. Although Alford referred to mutual back-stabbing and mu- tual disparagement between Connor and Nowak, the latter’s testimony is silent as to this supposed pervasive acrimony. Respondent adduced unrebutted testimony, which it argues reveals that Connor and Key resorted to deception and sleazy use of alcohol and sex in the business interests of the Little Rock plant. Such evidence, insofar as it bears on the credibil- ity of those witnesses, is offset by Alford’s admissions that he and Gaddy have engaged in deception in the business in- 682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD terests of PI and he, Alford, would continue to do so if need- ed. Indeed, the outstanding example of that is Alford and Gaddy’s admitted misrepresentation to Connor, including Alford’s very first explanation as to the motivation of the purpose of the screening process at Malvern. Respondent argues that an inference of bias must be raised from the fact that Key communicated with Pilcher by tele- phoning him at his home after her discharge and was referred by him to the union attorney. It is unnecessary for me to re- solve the issue raised in Respondent’s brief of the date of one of her affidavits, which the General Counsel argues is the third with a preprinted erroneous date of 1988 instead of 1989, which would place it well in advance of the filing of the unfair labor practice charge. The affidavit itself was not adduced into evidence. With respect to Connor, he did not initiate contact but rather responded to inquiries of the Board investigation. Con- nor gave his first affidavit and cooperated with the Board agent long before he had been hired by Harvard, and thus it is unnecessary to resolve the issue of whether Harvard is a competitor of PI which might be aided by the finding of backpay liability owed by PI. It is uncontradicted that 2 months after Connor executed his first affidavit for the Board on April 26, 1989, Connor, while employed at Harvard, responded to Alford’s request of him to assist PI in a matter dealing with PI’s customer, Ford Motor Co. Connor did so by drafting and sending a letter to Ford on June 24, 1989, as requested by Alford in furtherance of PI’s business relationship with Ford, a valued customer. Furthermore, Connor was receptive to PI counsel’s request of him to meet and discuss the facts to be litigated in this proceeding prior to trial and agreed to a meeting. Because of a family illness, Connor had to cancel the meeting. He was not asked to schedule another meeting. Connor’s postdischarge cooperation with PI undermines Alford’s de- scription of the alleged bitterness that led up to it. If Alford, who hated Connor so much, is to be believed, how on earth could PI have asked for or even expected Connor’s coopera- tion? Connor’s cooperation with PI, while employed by its al- leged competitor, was not required by the severance agree- ment. That conduct reinforced my conclusion that although evidence of bias cannot be discredited, it is exaggerated to some extent and mitigated. Perhaps Connor did, in fact, ex- perience a mixed reaction to his discharge. From one view- point, it was a personal defeat and embarrassment effec- tuated, as perceived by him, in a duplicitous manner. From another aspect, he, like Key, received 90 days of severance pay which, in part, compensated for the unnecessary expense of the cost of renting a Fayetteville residence for an unspec- ified time, and he was able to relocate at Harvard industry in a responsible position, where he had sought employment even prior to PI’s ownership. From one standpoint, his ex- pressed bitterness is believable; from the other, his postdischarge cooperation is logical. Perhaps the answer is that Connor actually was himself as ambivalent in his intro- spective reaction as his testimonial self-description suggests. Thigpen’s testimony may very well have unwittingly re- vealed that to be the case. Thigpen was a witness who rev- elled in the testimonial spotlight and who would not resist launching into arrestingly descriptive, gratuitous monologues. As noted above, he observed Connor to be a technically competent person of some experience and self-pride who lacked the finesse and guile for corporate survival. Instead, Connor bluntly and very emotionally reacted to business situ- ations and, according to Thigpen, he let his mouth do his thinking for him and spoke out what he perceived was the bald truth, thereby antagonizing persons to his own disadvan- tage. Thus Connor may very well have reacted to his termi- nation by PI at times rationally and stoically, but at others with bitterness and resentment. His persistent open accusa- tions of unlawful motivation are also in accord with Thigpen’s analysis. The demeanor of both Connor and Key is not such as to necessarily cause disbelief. Rather, the opposite is the case. Despite her lapse into disjunctive responses, Key, like Con- nor, gave every evidence of a dispassionate, even-tempered cooperativeness, even in a persistent cross-examination. Nei- ther gave the slightest evidence of animosity or bitterness. Connor was the more certain in demeanor. Key answered in the disjunctive at times and became admittedly confused when cross-examined as to what Connor had stated to her re- garding PI’s Malvern hiring procedures during their employ by PI. I find Connor more accurate as to the dates. More- over, the substance of his testimony more closely resembles Alford’s with respect to the airplane ride. Where their testi- mony does not agree, I would defer to Connor’s recollection except as noted below. The factor that most seriously undermines Connor’s credi- bility is not that he maintains or did maintain a bias against Respondent, nor that he even sought to seek vengeance against it. Vengeance may be the factor which motivates the witness into cooperating with the tedious legal process of prosecution of a case against a former employer which, by telling the truth, may jeopardize the possibility of future de- cent references that might have been made possible by the postdischarge cooperation in the Ford matter. The existence of vengefulness does not necessarily of itself compel rejec- tion of a witness’ veracity. The existence of that motivation is offset by the bias of economic motivation which is nec- essarily pregnant in the testimony of Gaddy, Alford, and Nowak. The possible backpay liability in this matter was per- ceived by Alford to be several million dollars. Alford has in- vested $1 million with the PI venture, while Gaddy’s invest- ment is about 10 times more than that. Nowak was obliged to acquire a small percentage of stock investment in PI and had to obtain a sizeable loan in order to do so. Alford admit- ted that he would, on the necessary occasion, engage in de- ception to advance the business course of PI. He insisted that he would ‘‘not lie to a federal official under oath.’’ I find that Connor’s bias of vengeance is to some substan- tial degree offset by the inherent economic bias of Respond- ent’s witnesses which also does not necessarily compel total rejection of their testimony, any more than revenge does of Connor and Key. The most serious problem caused in a credibility resolution by the finding of a revenge motivation is not its existence so much as the fact that Connor flatly de- nied its existence. Connor’s assertion of complete indiffer- ence to PI, and other testimony which downplayed his com- petitiveness and tended to cultivate an exaggerated image of neutrality, is clearly misleading. Connor thus revealed him- self as a witness who wanted to be believed rather than one who was completely dispassionate. By not being completely truthful, Connor was severely jeopardized in credibility as 683 PRECISION INDUSTRIES well as that of Key which tended, in its stumbling fashion, to roughly corroborate him. However, the credibility of Con- nor and Key has not been totally ruined. It is enhanced by the ineffectual and obscure ‘‘denials’’ of Nowak, a witness with the poorest and least convincing demeanor of any wit- ness in the entire proceeding, although others came ex- tremely close. Connor’s credibility is further enhanced by the fact that Alford and Gaddy’s own admissions track closely to Con- nor’s recollection. Also, Connor made his accusations of un- lawful motivation well prior to his termination as well as prior to the time he lost favor with Alford. These accusations were therefore not something concocted after his discharge. Further, even after his accusations, he was made vice presi- dent and given a raise in pay, and was in no way rep- rimanded for making them. Clearly, he was privy to hiring procedure discussions at a time when Alford considered him to be a perfect, possibly permanent executive complement to himself. Thus Respondent’s argument that it was not logical to confide in Connor loses its cogency. The status of Connor and Key’s testimonial credibility, and the interpretation of the so-called admissions of unlawful motivation, cannot be resolved without a counterbalancing evaluation of Respondent’s witnesses’ testimonial expla- nation of the motivation for the constitution of screening process at Malvern instead of an automatic retention of a work force already in place for the processing of ongoing or- ders for the same immediate customers. A necessary prelude to such an evaluation is an analysis of the context, if any, of union animus of PI or the management team which it in- herited also enmeshed in the Malvern hiring process. C. UDC Union Animus The Union had represented the employees at the UDC Malvern plant not only during its ownership by Lew Zachery, but also when the same plant had been owned and operated by the predecessors, Hoover Universal, Hoover Ball and Bearing Company, and Glenvale Products. The Union had negotiated and serviced a continuous series of collective- bargaining agreements, the last of which was, by its terms, effective from May 6, 1986, until May 6, 1989. There is no evidence of a history of bad-faith bargaining by UDC nor of collective-bargaining animus. Indeed, Connor bragged to pro- spective customers that not 1 day of productivity had ever been lost because of collective bargaining. It is the General Counsel’s position that the 1986 negotia- tions began a period of deterioration of that cooperative rela- tionship. The difficulty in analyzing the General Counsel’s evidence of animus is that much of it is entwined with evi- dence of an alleged personal animosity between Nowak and Union President Don Pilcher. Clearly, if there had been a motivation to rid the operation of the Malvern plant of the perceived impediment of union recognition and collective bargaining, the evidence does not reveal a universal animos- ity by UDC or PI against all individuals who, at one time or another, engaged in union activity either by way of griev- ance filing or by holding the positions of union representa- tives. Indeed, several past or then-current union representa- tives had survived the PI hiring process. One of them, Floyd Gregory, was even hired by PI to a nonunit salaried position relating to quality control. That person had actively rep- resented the Union in direct negotiations with Watson in sit- uations of disagreement over proposed work standards de- vised by Watson where the proposed standard was thereafter modified to accommodate the objections of the Union. The General Counsel argues that there is some signifi- cance to the fact that the 1986 negotiations did not imme- diately result in contractual agreement and for the first time the employees worked without a contract for a 30-day pe- riod, during which the UDC management hired security per- sonnel to secure its premises and during which access by em- ployees was somewhat limited. However, there was no evi- dence of a confrontation of any kind. Pilcher’s testimony as to the less than enthusiastic attitude of the UDC bargaining team is conclusionary and subjective. Testimony of other witnesses of either side is also subjective, conclusionary, and of little probative value except as evidence of managerial perception. The chief negotiators for the Respondent termi- nated their employment at UDC well before the negotiations for its sale to PI. There is little to be gained by any elabo- ration of testimony regarding the 1986 negotiations. Of more significant is evidence of union animus of UDC managers who were hired by PI and incorporated into its hiring process at Malvern. Subsequent to the negotiation of the 1986 current contract, the Union filed unfair labor practice charges which resulted in the issuance of a complaint by the Regional Director which raised the issue of alleged unilateral changes in collec- tive-bargaining insurance benefits on or about October 1, 1986. Thereafter, a non-Board settlement effectuated a res- toration of the status quo. Similarly, in June 1988, UDC uni- laterally changed certain insurance benefits by selecting an- other carrier. A settlement of alleged unfair labor practice charges underlying a complaint effectuated a status quo res- toration in December 1988. By virtue of these settlements which were never revoked, no inference can be raised that UDC had actually engaged in unlawful conduct. Those cases are only relevant to demonstrate that the Union actively en- gaged in enforcing the collective-bargaining contract. There is testimonial evidence that the impact of being frustrated in its unilateral action was of some significance to the attitude toward union representation by UDC managers later hired by PI. Since 1985, Margaret L. Kratz had attained the position of personnel administrator of the UDC Malvern plant at the time of its sale to PI. She was hired by Alford to continue in that position at PI. She did so until she voluntarily termi- nated her employment with PI in July 1989. Permission was granted at trial to examine Kratz as a 611(c) witness. She was clearly intimately involved in the PI hiring process, and her testimony revealed her self-perception to be closely allied with the interests and vindication of PI with whom she close- ly associated herself in the preparation of her testimony as its own witness and as a 611(c) witness, even to the extent of enacting a pretrial question-and-answer session of ex- pected interrogatories with Respondent counsel. Her de- meanor of hostility, manifested in a coldly contemptuous tone and manner toward the counsels for the General Coun- sel and the Union, shifted to that of geniality coupled with startling responsiveness when examined by Respondent’s counsels. Her demeanor, regardless of her nonemployment status with Respondent, clearly marked her as a witness with a manifest pro-Respondent bias. 684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Kratz characterized the 1986 negotiations as hard bargain- ing. She and Nowak were members of the UDC bargaining team but subordinate to its chief spokesperson, Bob Williamson. Kratz testified that during these negotiations, UDC perceived itself to be in such financial difficulty that its very viability was in danger and that economic layoffs preceded and followed the negotiations, but she claimed that there was no deterioration of the relationship with the Union. In fact, there is no evidence that UDC made an effort in those negotiations to undermine the status of the Union. Nor is there any evidence of acrimony because of any regressive UDC bargaining stance although Kratz perceived that period as ‘‘tough times’’ when there was a ‘‘lot of nervousness and tension’’ but which was followed by normalcy. When Kratz was directed to the 1986 unfair labor practice settlement which involved backpay for loss of employee ben- efits, her perception of Zachery’s motivation in making the attempted unilateral changes was that he was trying to effec- tuate cost-saving measures for a plant that was in a ‘‘des- perate’’ financial shape. She further characterized her percep- tion that the actions complained about by the Union and frus- trated by the Union were intended ‘‘to keep the doors open.’’ She perceived Zachery’s frustrated attempt to unilaterally change the insurance carrier ‘‘as a last resort’’ to save the business. Whether or not her perceptions were accurate is ir- relevant. What is relevant is that these were her perceptions. When she gave the testimony, Kratz’ recollection of the frus- trating conduct of the Union and its impediment to UDC’s financial viability was given in a tone and manner which strongly suggested resentment, despite her assertions of nor- malcy and congeniality in the bargaining relationship. It was particularly so when she described UDC’s attempted actions which were frustrated by the 1988 unfair labor practice charge. According to Kratz, the attempted benefits changes came at time of even further aggravated financial losses and were ‘‘desperate measures for survival.’’ Indeed, there is no dispute that UDC was in desperate financial situation which, in great part, made it an attractive object for purchase, ac- cording to Gaddy, at a bargain level price. Given the testi- mony and her demeanor, it is extremely difficult to believe that Kratz harbored no resentment toward the Union because of its perceived obdurate opposition to those desperate ac- tions. It is equally difficult to believe Kratz’ testimony that she held no resentment toward former UDC employees, hearing her describe her harassment by their nighttime recriminatory and threatening telephone calls during the hiring process. The Respondent adduced evidence to the effect that during her UDC tenure, Kratz was well liked by the employees and maintained a benevolent, congenial relationship with the em- ployees and with Union President Pilcher. Respondent then adduced evidence that Kratz harbored no preacquisition per- sonal grudge against the Malvern employees and had no per- sonal reason to discriminate against them. Accordingly, if the question arises as to why she may have engaged in some ab- errant or seemingly arbitrary conduct in the hiring process, it cannot be because she was an arbitrary or draconian man- ager. Some other motive must be inferred. Respondent ar- gues that some of her more questionable hiring decisions were the result of simple human error. Michael Nowak, hired as vice president of manufacturing for PI, as well as shortly thereafter a stockholder, had been hired in 1983 by Hoover at Malvern as manufacturing man- ager. He became the UDC Malvern plant manager in 1984. He described the UDC-Union relationship in evasively gener- alized terms. He claimed there had been no ‘‘inordinate’’ number of grievance activity and virtually no arbitration of grievances but rather grievances were resolved by negotia- tion. He described his relationship with Pilcher as business- like and without animosity. The General Counsel adduced similar generalized but uncontroverted testimony from Pilcher and Marvin Berryhill, a 1986 union committee person, to the effect that there had been grievances filed with respect to employee subcontract- ing and movement of employees within the plant, which re- sulted sometimes in the award of backpay. There is insuffi- cient evidence as to whether a judgment can be made as to whether the grievance activity was in fact excessive, or more significantly perceived by Nowak to be such, except the tes- timony of Connor and Key. Nowak conceded that one of his major objectives as a PI manager, greater cross-training of employees, had been frustrated under UDC by terms of the collective-bargaining agreement. He further conceded that the cross-training issue gave rise to UDC’s ‘‘major gripe’’ in the 1986 negotiations. Nowak’s union animus must be shown from other evidence than the vague testimony as to the na- ture and amount of grievance activity itself. Much of that evidence is attended to in the testimony of Connor and Key. Nowak was silent as to his attitude and perception of the Union’s effort in frustrating the desperate cost-saving at- tempts by UDC in 1986 and 1988, but he admitted aware- ness of that situation. His general description of a benign mutual regard conflicts sharply with Kratz’ perception of the union conduct in those 1986 and 1988 efforts to obtain finan- cial viability. Don Pilcher had been employed by UDC and its prede- cessors at Malvern for 22 years. He started out as a custo- dian and ended up in a general maintenance classification at the time of the PI acquisition. Pilcher had been president of the Union since 1979 to 1982 when he took a leave of ab- sence and worked on the staff of the UAW. He was the 1986 bargaining unit chairman. His representational duties in- volved dealings with Patricia Nader, the UDC personnel di- rector headquartered in the UDC Saline, Michigan plant, as well as Kratz and Nowak. In July 1988, the union bargaining committee consisted of Pilcher, Dexter Hill, Jerry Yar- borough, Floyd Gregory, and Marvin Berryhill. In the 1986 negotiations, it was headed by Pilcher and composed of Berryhill, Charline Baker, Verna Parish, and Tom Lackey. Much of Pilcher’s testimony of UDC’s post-1986 contract agreement attitude is conclusionary, generalized, and of little probative value. His testimony with respect to a claimed poor relationship with Nowak is particularly confusing. From what I can decipher, it appears that that there was some kind of personality conflict between the two men that caused mutual communication difficulties. Such evidence, of itself, is hardly indicative of a hostility toward a collective-bargaining rela- tionship as such. The General Counsel’s compulsion to ad- duce as much evidence as he can, regardless of its probative value, compounds the difficulty in resolving the issues of this case. Much analytical time is therefore wasted in gleaning out such chaff, not to mention the enormous time wasted in the sheer reading of it in an unnecessarily bloated record. The General Counsel was not alone in this tactic, but it is 685 PRECISION INDUSTRIES his prosecution which set the bases for the enormity of the defense. In the interest of keeping this decision within the realm of sane proportions, I will simply ignore the trivial and ambigu- ous episodes supposedly indicative of a personal hostility of Nowak toward Pilcher or supposedly evidencing the aggres- siveness of the Union or antiunion animus, but which are ambiguous or of remote materiality. Gaddy testified that he had no aversion to operating a plant whose employees are represented by a union. Alford testified that he was the PI representative mainly involved in negotiating with Zachery for the purchase of UDC’s facilities and operations by means of a purchase of all its assets. Ac- cording to him, Zachery revealed in those negotiations that the Malvern plant employees were represented by the Union and that they had ‘‘got along just fine’’ over the years. How- ever, he also testified that Zachery made many optimistic representations about the financial status and operations of UDC which he, Gaddy, and Keenan carefully scrutinized with a ‘‘jaundiced eye,’’ i.e., Zachery wanted to sell the business at the highest possible price and his positive finan- cial representations were skeptically evaluated. Keenan, Gaddy, and Alford made their own independent observation and evaluation of the UDC operation finances and facilities. It is reasonable to assume that they also made some effort to evaluate the relationship of UDC’s in-plant management with the Union prior to the sale. Respondent’s witnesses are silent on the subject. However, Alford testified that he and his associates independently investigated Zachery’s represen- tations by not only an examination of UDC records, but by also interrogating a variety of unnamed persons. Alford testi- fied that he questioned Nowak about the operation and dis- cussed the employees. He is silent as to whether or not he elicited, either before or after the sale, either Nowak, Wat- son, or Personnel Manager Kratz’ perception of the historic collective-bargaining relationship. They also are silent as to whether such conversation occurred. Inasmuch as Alford and Gaddy admitted to lack of experience and knowledge of union representation matters and inasmuch as they concur- rently sought labor law advice form legal counsel prior to the sale, it would appear to be most unlikely that these otherwise astute businessmen and accountants had no curiosity as to the state of UDC’s bargaining relationship or the nature of the collective-bargaining contract and its cost and/or control im- pact on the operations of the UDC Malvern plant, which was perceived to be the only profitable plant in the UDC stable but which status was also admittedly perceived by Gaddy and Alford to be precarious, given its product line and mar- ket trends. It is most unlikely that they blithely ignored the possible cost factor of a continuation of a bargaining rela- tionship when carefully scrutinizing all other factors. It is hard to accept Gaddy’s testimony which indirectly suggests that he was indifferent to whether Malvern was unionized or not. Alford testified that unionization of a plant may or may not affect its ‘‘bottom line’’ profitability depending on the circumstances, but he was silent as to whether he made an analysis of that factor prior to the PI purchase. Evidence of Keenan, Gaddy, and Alford’s attitude toward union representation, regardless of whether it preceded the sale or was caused or influenced by post-UDC management, must be definitively ascertained by resolution of the credibil- ity of Connor and Key and an analysis of circumstance of why the decision was made to reinstate the UDC Malvern employees only after screening and testing, when that deci- sion was made and by whom it was made, and the proffered reasons for making it. The General Counsel argues that, alternatively, an analysis of that process itself would reveal such an absence of busi- ness justification and job relatedness that the trier of fact must necessarily infer unlawful motivation even in the ab- sence of credible, direct evidence of unlawful motivation. D. Respondent’s Proffered Malvern Hiring Rationale 1. Introduction The credibility of Connor and Key is extremely vulnerable because of the numerous weaknesses that have already been discussed. Respondent had the opportunity to rebut their tes- timony and destroy its effectiveness with a coherent, consist- ent, convincing testimonial contradiction. Such contradiction necessarily involves a credible explanation of the cir- cumstances that motivated and implemented a screening process as a condition for the continued employment of the Malvern UDC employees in job functions that were imme- diately available for them, but which ultimately took 6 to 8 weeks to fill by means of a tedious and expensive screening process. As Thigpen testified, supposedly in jest, a proposed testing procedure must be carefully scrutinized because it is like buying a used car and can be a great mistake. He added that he would rather ‘‘take a 1950 Edsel over a testing proce- dure.’’ There may be more truth than humor in that response. Instead of successfully availing itself of the opportunity to effectively contradict Connor and Key, the Respondent not only adduced the ineffectual ‘‘denials’’ of the unconvincing Nowak but proceeded to elicit testimony from Gaddy, Alford, and Nowak which is grossly inconsistent and con- tradictory as to who decided, why it was decided, and when it was decided to institute a screening process as a pre- condition for the employment of the UDC Malvern employ- ees and to solicit applications for those jobs from non- employees. 2. PI motivation according to Gaddy Gaddy had no preexisting fixed policy or determination that necessarily called for the screening, testing, and physical examination of employees of an acquired business. Although a CPA and successful accountant and financial advisor, his immediate background was since the early 1980s that of chief operating officer and president of Pace Industries, Inc., an entity which employed from 400 to 800 employees and had a yearly turnover of several hundred employees. There was no such similar testing and X-raying of job applicants at Pace. When Gaddy had engaged in a search of possible plant ac- quisitions prior to the purchase of UDC assets, he testified that it was for the purpose of acquiring a plant that could perform the type of work for which the highly valued man- agement of the Pace Harrison plant, in the person of James Starkey, was not receptive. Gaddy and Alford explained that the Harrison plant was highly successful as a thin wall cus- tom die casting plant which produced 65 percent of the na- tional market for outdoor lighting fixtures and 70 percent of that market for outdoor gas grills, but that they desired ex- pansion into such custom work as the computer industry and 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the automobile industry, which required the quality control process known as statistical process control, i.e., SPC. Gaddy, Alford, and Thigpen all testified to the rigidity of Starkey who did not want to get into a new product line and also did not want to adopt SPC for his entire plant, even for non-SPC customers, as would be required by such SPC cli- ents like the Ford Motor Company. Lew Zachery had unsuccessfully attempted to sell the eco- nomically failing Saline, Michigan plant in 1987. In early 1988, Gaddy, Alford, Keenan, and associates had com- menced serious discussion about acquiring a specific facility. Several businesses were inspected, one of which in the open record is referred to as ‘‘I Industries’’ and here simply as ‘‘I.’’ That enterprise was located in a northern State. Nowak had been employed there for 10 years in the past. On inspec- tion of ‘‘I,’’ Gaddy and Alford claimed to have been im- pressed by its ‘‘high tech’’ appearance, i.e., up-to-date ma- chinery and die casting quality control devices. Gaddy testi- fied that an unsuccessful bid was made to ‘‘I,’’ and that he and his associates made other unsuccessful bids for other plants. By June 1988, Zachery had already closed or was about to close the Saline plant, but was still in financial distress. Gaddy explained that UDC, therefore, was a natural target for a bargain price acquisition. Gaddy testified that, in par- ticular, he wanted to acquire the Malvern plant because it had been profitable, had a reputation for good quality work, and would serve as a base for future growth. Gaddy testified that it was his plan to expand the $7 million UDC annual business to $15 or $20 million and, after 5 years, to $30 mil- lion. Gaddy explained that he projected sales of $5 million for Malvern and $2 million from Little Rock and the balance from new sales. He explained that as of his testimony, sales were $5 million below his projected $15 million objective because of the adverse impact of the recession. He testified that PI lost a ‘‘lot of proprietary work.’’ Other evidence dis- closes a loss of only 10 percent of proprietary work. The loss of the nearly (according to Gaddy) $2 million OMC account by UDC shortly before the sale almost caused him to change his mind. Documentary evidence shows the OMC-Lawnboy sales from July 1, 1987, to October 14, 1988, to be $899,000 at Malvern. Negotiations with Zachery, with Alford as the purchasing group’s chief negotiator, were carried on through June and July 1988. Although Alford and Gaddy testified that the paramount objective of this acquisition was to obtain a plant that was capable of SPC custom die casting and that factor influenced their hiring decisions at Malvern, they admitted that in their sworn affidavit testimony given in the investigation of this case, they made no reference whatsoever to SPC. In his testi- mony at trial, Alford went even further and testified that not only was SPC an objective, but rather it was to implement the whole Dr. Edward Deming philosophy, of which SPC is only one component. The affidavits, however, were not sub- mitted into evidence, and it is therefore impossible for the trier of fact to ascertain whether there was an ameliorating context. Alford admitted that in his affidavit testimony he limited justification motivation to the fact that PI was going to change the emphasis of the product mix of the Malvern plant from that of proprietary to custom die casting. Gaddy testified that no documentary record was retained concerning a prepurchase analysis or appraisal of the UDC proprietary business which he said he had done in his head. He also claimed that there were no memoranda or other recordation of prepurchase meetings and discussions reflecting PI’s pur- chase plans and objectives. Nor were there any memoranda between himself and Alford concerning the business purpose of the Malvern plant or projections of its future budget and equipment requirements. Gaddy testified that his conclusion that UDC’s emphasis upon proprietary water faucet handwheel business rendered it economically vulnerable was arrived at by reading the newspapers accounts of the reces- sionary economy, particularly in the building industry and his own ‘‘gut analysis.’’ Gaddy testified that his intention had been formed to re- tain all the employees of ‘‘I,’’ had it been purchased, be- cause SPC had been in place in that plant. Gaddy testified that it was his prepurchase perception that the Malvern plant had a sales volume of about 50-percent custom die casting but that it did not have in place SPC. He also testified that the major part of the profit of that plant was due to the pro- prietary work. Gaddy testified that his perception of the ab- sence of SPC at Malvern was due to a plant visit when he concluded that because of a lack of certain production mon- itoring devices he had associated with the SPC process. Al- though he had no such expertise, Gaddy testified that the ab- sence of SPC was ‘‘obvious.’’ He testified that when he vis- ited the Little Rock plant which produced 100-percent cus- tom work, his observation led him to conclude that they were attempting to use it but it was ‘‘in disarray.’’ He testified elsewhere that he had concluded that there was no SPC at the Little Rock plant. Gaddy’s varying perceptions with respect to the Little Rock plant are contradicted by Respondent witness Kindy who testified that plantwide SPC had been implemented and that its SPC quality control program had sufficiently pro- gressed under Ford Motor Company’s periodic inspection to the extent that they were, accordingly, on track for a Q-1 quality rating. According to Kindy, Ford only suspended its scheduled inspection to allow PI to transfer and settle in the Ford die casting at Malvern. Contrary to Kindy, Thigpen tes- tified that Little Rock had been in jeopardy of losing the Ford work, which was rescued only because of his extraor- dinary persuasive ability in convincing Ford that the PI ma- chinery would be improved or replaced. But even according to Thigpen, the problem was with Little Rock’s defective machinery and not with the way employees there imple- mented SPC. Kindy testified that a formal SPC program had been set up and administered at Little Rock by himself, Honeycutt and Gray. Thus his testimony is at odds with both Gaddy and Thigpen who testified to having formed a percep- tion based on prepurchase observation that Little Rock had a minimal, nominal SPC process in ‘‘disarray.’’ Kratz testi- fied that some SPC training programs had actually started at Malvern but had ceased. Other than rumor, she had no direct knowledge of why plantwide implementation did not con- tinue. Alford, like Gaddy, formed his opinions as to the exist- ence or nonexistence of SPC at Malvern on his direct prepurchase observations. It is extraordinary that these pro- fessional accountants, who had no direct experience or little experience in die casting and particularly in direct, daily inti- mate participation in the SPC process, would not have ex- plicitly interrogated Zachery and Nowak as to whether SPC 687 PRECISION INDUSTRIES training had ever been attempted in whole or in part at Mal- vern, as well as Little Rock. Alford had questioned Zachery, and later Nowak in depth, as to the financial status, the clien- tele, physical resources, and market potential. If SPC had in fact been such an overriding concern at the time of purchase, at least Nowak would have been questioned about it. He was not. Although Thigpen and Scott Bull also toured the Mal- vern plant and questioned Watson about his use of SPC charting and admired his approach to quality control, there is no evidence that they reported their observations to Gaddy, Keenan, or Alford. Had Nowak been questioned by Alford, he might have dis- closed the fact that at the 1986 contract negotiations, UDC announced to the Union that it would implement plantwide SPC training and that there had been no objection by the Union. He might also have explained to Alford why the 1986 Malvern work force was considered amenable to such train- ing. In fact, the intention had not been effectuated. Neither Nowak nor any other witness testified why it was not. There is some testimony that some die casters and some trim press operators had evidenced some problem in mathematics. Nowak did not allude to it, and the degree and extent of those problems was not delineated. Nor was there any evi- dence to the effect that perceived deficiencies of employees had any effect on SPC implementation. Nowak, had he been asked, might also have disclosed that some Malvern UDC employees had indeed performed certain functions on certain custom jobs which required the type of charting, predicting, and controlling of scrap or defect trends indigenous to the SPC process. Employee testimony as to the application of SPC to a variety of UDC products was not specifically contradicted except possibly as to the degree of employee discretion. Not only did Nowak not discuss the subject of SPC appli- cation at the prepurchase Malvern plant with Alford or Gaddy, but he also refrained from discussing it with Dr. Bakr when he was forming his opinions about the state of the Malvern work force based on discussions with Nowak and Watson. Bakr at first suggested that he had been given no knowledge that the Malvern employees had any type of SPC experience. He amended this testimony when he testified as a Respondent witness that Watson did tell him that some SPC type charting had been done by UDC employees at Malvern. According to Nowak and contrary to Gaddy, Thigpen and Key, the Malvern plant sales volume had been 70-percent proprietary. However, his testimony was directed to the time of PI purchase, and it is possible that as of that day of the week it was 70 percent. Connor testified without contradic- tion that the mix of proprietary and custom die casting at Malvern varied monthly in that sometimes it ranged from 30- percent custom up to 70-percent custom but other times lev- eled off to 50 percent of sales volume. The problem with their estimates is that they do not reveal the man-hours in- volved in actual production. Gaddy’s estimate that the propri- etary work involved the higher profit suggests that it had a lower cost factor and that the labor cost, i.e., man-hours of work, were lower for proprietary work. Alford testified that over half of the custom work or 25 to 30 percent of the busi- ness was attributable to the OMC-Lawnboy flywheel die casting. He characterized that as a long running, high volume die which is not common nor the type of die work intended to be solicited by PI. According to Alford, only a small por- tion of custom dies at Malvern changed on a regular basis. Watson corroborated him, but Thigpen emphasized the large turnover of custom work which he implied was due to the deficiency of the Malvern plant. Watson testified that it had been rare for a custom die job to be rescinded because of the Malvern plant’s employee deficiencies. It is the testimony of Gaddy and Alford that they and their consortium of entrepreneurs intended the UDC acquisition to be the first step in the assembling of a multiplant enterprise. As noted elsewhere, Pace was not formally involved because of banking considerations and the desire to exclude one of its stockholders. Bank loan considerations also influenced the formal nature of other such acquisitions, but the nucleus de- cision makers were the same. Respondent does not suggest that the hiring practices at their other acquisitions differed from Malvern because they were not part of an integrated en- terprise or single-employer entity, other than that Alford made the hiring decisions only at Malvern. In fact, Gaddy admittedly reviewed and approved Alford’s hiring decisions at Malvern. In October 1988, Keenan and Gaddy acquired 79 percent of the stock of Mangus Tool and Die, Inc. Respondent con- tends that no changes were effectuated there and the business was continued in the same manner with the same personnel without the imposition of an employee screening process or physical examinations because no changes were planned and the highly skilled die makers were presumed to be com- petent, and the former operator, George Spellings, requested their retention. On November 29, Gaddy and Keenan effected a similar stock purchase of Central Tool and Die, Inc., in Florence, Alabama, also a die maker. For the same proffered reasons, they also experienced no screening, testing, or physical ex- amination of employees. It was merged with Mangus to be- come General Precision, Tool and Die, Inc., as separate divi- sions. In January 1990, Gaddy and his associates closed an asset purchase of Automatic Castings in Green Forest, Arkansas, which, inter alia, made simple die cast chain link fence fit- tings. The new corporation became Automatic Castings, Inc. (ACI). No hiatus or change in operations occurred and the employees were retained without screening or testing or back X-rays. Gaddy explained that this was so because there were no plans to change the product or method of the existing non-SPC single die cast operations. In fact, documentary evi- dence reveals that ACI produced a significant amount of work somewhat more complicated than what Gaddy de- scribed. Thus we see that Gaddy and his associates had no pre- conceived mind-set against retaining the employees of an ac- quired business. It is further clear that UDC, regardless of the nature of its acquisition as an asset purchase, was in- tended to be continued as an ongoing operation at the same locations and with same customers at least for the most im- mediate future, but with purported intention of consolidating operations and expanding the custom type of die casting, half of which sales volume Malvern had already been producing. It is conceded by Respondent’s witnesses that the very characterization ‘‘proprietary’’ or ‘‘custom’’ does not nec- essarily imply inherent simpleness or inherent complexity of product but rather signifies ownership of the die itself. It is 688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also conceded and admitted, in particular by Alford, that ei- ther type of die casting can be simple or it can be com- plicated. Alford further admitted that the Malvern plant had in fact, prior to acquisition, profitably produced some custom work, some of which included complicated die casting work. Our analysis must now concentrate on why the hiring deci- sion of Gaddy, Keenan, and Alford was that of not continu- ing with the employees of the acquired operation but rather to institute an open hiring process involving a $75,000 to $100,000 cost, and a hiatus and limitation in operations which concededly jeopardized commitments to customers by an ongoing business that was already financially vulnerable. As Alford conceded, a sensible businessman does not insti- tute a $75,000 to $100,000 screening procedure just for the sake of doing so. There must be some compelling reason. That is most particularly so, given the business situation of the newly acquired UDC business. Gaddy’s initial perception of the Malvern plant was that it was profitable and to some degree efficient, i.e., ‘‘semi ef- ficient.’’ There is no effective contradiction of Connor’s tes- timony that the Malvern plant maintained a scrap percentage well below the industry standard. (Bakr, we shall see, was told otherwise.) Thigpen testified that based on his prepurchase observation, he concluded that the Malvern plant’s management had a favorable ‘‘attitude and capability in the area of quality control.’’ Bakr testified that the UDC management, i.e., Nowak or Watson, told him that there were quality problems, particularly with Chrysler’s castings, the nature of which he did not specify. Thigpen was reluctant to testify as to direct observation of Malvern UDC employees’ work quality, claiming that he did not ‘‘interface’’ with them. He had concluded, however, that based on what he did observe that they were a ‘‘well man- aged group.’’ He admitted awareness of a formal quality rec- ognition award from one UDC custom account and acknowl- edged that he concluded ‘‘from a marketing vantage’’ that the UDC Malvern employees clearly were concerned about quality of work product. He finally admitted that based on prepurchase observation, the Malvern plant was a ‘‘profit- ably, well managed, and that Nowak and his staff were deemed to be competent.’’ Gaddy and Alford also toured and inspected the Malvern plant and observed its operations and interrogated Nowak and/or Watson prior to the purchase. It is reasonable to infer that they must have made the same conclusions. Gaddy and Alford also were privy to Zachery’s favorable representations of the Malvern plant. As Alford observed, Zachery tended to emphasize the positive virtues of the busi- ness to the extent that they listened to him with a certain amount of skepticism. It is extremely improbable that Zachery did not either directly or indirectly, by praising the Malvern plant operations, profitability, etc., cause Gaddy and Alford to obtain a favorable impression of the Malvern plant employees. Gaddy testified that the major part of his prepurchase in- formation about the UDC Malvern plant operation was ob- tained from the UDC marketing department located at Little Rock and his plant tour with Nowak during which he admit- tedly did not touch on the subject of SPC. Gaddy’s conclu- sion was that UDC was ‘‘semi efficient’’ because, he rea- soned, had it been more so, the selling price would nec- essarily have been too high. Gaddy had put Alford in charge of the acquisition team and deferred negotiations to him. Therefore, Alford did ‘‘most of the questioning,’’ and, ac- cording to Gaddy, he had little direct prepurchase conversa- tion with Nowak whom, however, Gaddy nevertheless con- cluded ‘‘obviously cared about’’ SPC. Gaddy testified that he perceived the Malvern plant operation as a profitable one and which had a reputation for ‘‘good quality work.’’ Later, in persistent cross-examination by union counsel with respect to the hiring process motivation, Gaddy testified that doubt as to the ability of the Malvern employees arose not only from subsequent conversations with Nowak but also from Zachery. This is inconsistent with his prior testimony and inconsistent with the general description of Zachery’s representations as testified to by Alford, but also inconsistent with other testi- mony by Alford as to the sequence leading up to the alleged doubt of quality of the Malvern UDC employees. Gaddy did not specify exactly what Zachery said about the employees’ abilities, i.e., whether it was specific or something on which Gaddy drew an inference. In further cross-examination, he testified that Zachery, in effect, praised the Malvern employ- ees by citing their ability to obtain a ‘‘zero defect’’ quality award from the Chrysler Corporation. In cross-examination, Gaddy testified, with uncertainty, that he ‘‘believed’’ that Zachery may have told him that nei- ther plant had SPC. When asked if Zachery made that state- ment, Gaddy changed his testimony and explained that he made that inference because ‘‘they didn’t represent that they used SPC.’’ Gaddy then testified that he concluded neither plant had SPC. Gaddy testified that when he engaged the services of Alford, he instructed him to create ‘‘the most efficient oper- ation at Malvern’’ and to hire an industrial engineer with the object of effecting the ‘‘most appropriate lay out and person- nel for the job.’’ Gaddy denied that he instructed Alford in any way to discriminate against the hiring of former UDC Malvern employees. He denied having any conversation with Alford wherein they discussed the discriminatory rigging of hiring tests either before or after the acquisition. Gaddy testified that he was introduced to Nowak after a tour of the Malvern plant conducted by Zachery. He testified that after that tour he and Alford took Nowak to lunch at the Capitol Club in Little Rock which is not far from Malvern. The thrust of his initial direct examination testimony and the sequence therein clearly indicates that this luncheon occurred directly after that tour. According to Gaddy, it was at the Capitol Club luncheon when he told Nowak of his plan to make him the PI vice president of manufacturing and to charge him with the task of implementing SPC and the proc- ess of expanding the custom die casting work. Gaddy testi- fied that Nowak’s salary and stock purchase were also dis- cussed. According to Gaddy, it was a ‘‘rah, rah,’’ i.e., enthu- siastic conversation. He testified that it was at this meeting that Nowak questioned him why there was to be a difference in the hiring procedures between the two UDC plants and Nowak was told that it was because of an intention to close the Little Rock plant. Contrary to Alford’s and his own ad- missions, Gaddy insisted that no misrepresentations were made to Connor or Key as to the fate of the Little Rock plant. In his direct examination, Gaddy fixed no date for the Capitol Club luncheon, but the context suggested that it was immediately after he first met Nowak on a plant tour with 689 PRECISION INDUSTRIES Zachery. According to Nowak, that would have occurred be- fore any hiring process had been evolved or decided on or even suggested by anyone. Yet, Gaddy recalled Nowak dis- cussing it as already in place. In cross-examination, Gaddy described Alford and Nowak as the ‘‘principal parties’’ involved in the Malvern hiring process, but he testified that Nowak did not suggest the use of hiring tests but he did not know who did. He testified that Alford notified him after the fact that Bakr was already de- veloping hiring tests and that the decision had already been made. Gaddy testified that he explicitly instructed Alford to avoid discrimination in the Malvern hiring procedure. Alford’s testimony will disclose just why the topic of dis- crimination was in Gaddy’s mind at that early stage. Despite the attempt to do so, no clear testimony could be elicited from Gaddy in cross-examination as to whether he ever con- sidered hiring the old Malvern employees and conditioning their continued employability on their ability to adapt to the planned charges in the product mix, subject to training. Ac- cording to Thigpen, Nowak, and other evidence, the change in product mix ultimately to one of 70-percent custom was evolutionary and took up to 15 months. Nowak testified new orders for custom work started ‘‘filtering’’ in during Novem- ber 1988 but the much anticipated and valued new custom Skil work took 3 months before it arrived. Thigpen testified that the implementation of SPC was a slowly evolving proc- ess and was not complete even to the date of his testimony 2-1/2 years later. According to Respondent’s independent expert witness, Die Casting Industry Consultant Warner Baxter of Detroit, Michigan, SPC skills actually constitute an overlay of ac- quired skills on employees’ existing manufacturing expertise and should ideally be taught to workers in 56 classroom hours at a pace of 2 or 3 days over a period of several months. In cross-examination, Gaddy testified that he had con- cluded that there was an absence of SPC at the Malvern plant because he observed no spectrographs or shot scopes. In cross-examination by union counsel, his awareness of SPC was challenged and he was pressed to explain his ability, as a CPA and financial expert, to make any conclusions of what was necessary for SPC, particularly the need for a spectro- graph. At first, he testified evasively as to what Ford re- quired in its Q-1 manual. Undeterred, counsel asked just what or who caused him to conclude or who told him, a non- SPC expert, that a spectrograph is necessary for SPC. He an- swered vaguely that he had hired experts on ‘‘quality’’ for such advice. He even asked point-blank who that expert was. He identified the same Warner Baxter as that person. The clear implication and necessary implication was that such ad- vice preceded the acquisition of UDC and his plant tour and related to Dr. Deming and SPC. Baxter was subsequently called by Respondent to testify as to Dr. Deming’s philosophy, the transformation of American industry, and SPC in general. He did not relate it to the PI acquisition of UDC. Not only did he not corroborate Gaddy with clear testimony as to the sine qua non relationship of both spectrographs and shot scopes to SPC, he gave testi- mony that grievously impeached Gaddy’s credibility. Baxter testified that he was referred to Respondent’s counsel as an expert witness in the preparation of the case for trial. He tes- tified that his awareness of PI’s acquisition of UDC was only the result of an ex post facto industry rumor. In further cross-examination by union counsel, Baxter revealed that his first visit to the Malvern plant occurred 2 years prior to his testimony which would have placed it in May 1989, over 6 months after the acquisition. Moreover, Baxter testified that his visit to Malvern to view the postacquisition operation of the plant by PI came at the invitation of Thigpen, and it was only Thigpen with whom he conversed. Further, Baxter testi- fied that the purpose of his visit was only a very general ob- servation of the plant’s machine monitoring devices. He testi- fied that he advised Thigpen to invest in a certain brand of monitor device. Baxter very explicitly stated that the discus- sion did not relate to SPC nor did he make any comments, nor was he solicited for nor did he give Thigpen any advice as to SPC. He testified, however, that he told Thigpen that if PI was interested in employee training, it ought to look into the transformation of American industry program of which, of course, Dr. Deming’s philosophy is the source and SPC is only one particular outgrowth. That Baxter would have found it necessary to point out the transformation of American industry program to Thigpen 6 months after the PI acquisition is inexplicable if Thigpen, Gaddy, and Alford are credible that the Deming philosophy and SPC motivated PI’s preacquisition hiring decisions. Thigpen was silent as to the Baxter consultation. His views as to the spectrograph and shot scope relationship to SPC appear to be that they are not a sine qua non, but very important devices for alloy quality control or production monitoring. Thigpen’s interpretation of SPC, insofar as it is part of a larger industrial philosophical overview, stresses the crucial importance of employee attitude. He compared it with what he termed the Japanese word ‘‘Kaizen,’’ whereunder em- ployee enthusiasm is inculcated into a participatory, organic production process. According to this interpretation, subordi- nation of the employee attitude to the success of the produc- tion process is essential. By inference, a confrontational em- ployee attitude would be antipathetic. Gaddy testified that the Malvern screening process objective was to ascertain the em- ployees’ SPC trainability. Alford had told Gaddy that Bakr had told him that the tests were designed to do so. An exam- ination hereafter of the tests will reveal testing for generic skills and abilities. Gaddy testified that he had expected most UDC Malvern employees to pass the screening procedure but he wanted to ascertain by this process whether they were ‘‘suitable.’’ He testified in cross-examination that all decisions regarding the screening procedure were subject to his approval. However, he had also testified that he was notified of testing imple- mentation after it had been decided on. Later, again he testi- fied that Alford first carried to him Bakr’s recommendation for testing the applicants and then he agreed to do it. He then also testified that it was Alford who recommended the hiring of former UDC Malvern employees only subject to a screen- ing process. He added that ‘‘it all happened very quickly.’’ Alford at one point testified that the hiring process had not headed the list of PI priorities and was discussed much later in the process of acquisition. He described the hiring of em- ployees as ‘‘item 32 on a list of a hundred things to do’’ and that he had asked Nowak a ‘‘zillion questions’’ about other things. In cross-examination by counsel for the General Counsel, Gaddy testified that on some unspecified date and place, 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Nowak had told him that an unspecified number of the UDC Malvern employees had unspecified back problems, espe- cially if they were to operate larger machines. (The Little Rock machines were indeed substantially heavier and pro- duced a somewhat heavier part but at a much slower pace. Malvern ran machines from about 600 to 800 tons wherein Little Rock machines ran from about that maximum to 1200 tons or so. There was some overlapping, and Little Rock at times inefficiently ran light castings on its heavier machines.) Gaddy then immediately hedged a bit on this testimony, say- ing that he ‘‘probably’’ discussed the back problems with Nowak. The latter’s testimony, as we shall see, precludes this possibility. Gaddy then admitted that he actually had ‘‘very little discussion’’ with Nowak. However, he testified, ‘‘I think’’ Nowak was concerned about the ability of the Mal- vern UDC employees ‘‘to adapt.’’ Thus, on one hand we have Gaddy possessing a sanguine prepurchase view of the Malvern UDC employees wherein he expected ‘‘most’’ of them to pass the screening proce- dures, but on the other hand he expressed the vague warn- ings and doubts of Nowak. Gaddy then explicitly testified that he was not surprised at the high failure rate of Malvern UDC employees whom he was aware were not competing with outside applicants, per se, but who were competing with a specially constructed pass-fail test. He testified that he had ‘‘no significant reaction’’ to their high failure rate and that he never questioned the validity of the tests. Here, he testi- fied that he did so despite the UDC Malvern employees’ lack of a poor reputation. The vague testimonial allusion to Zachery’s unspecified disparagement either eluded him when he so testified or, more likely, had never occurred. Gaddy explained his lack of concern for the high failure rate by tes- tifying ‘‘I just wanted the best workers.’’ He conceded that a factor which enabled PI to resume any semblance of pro- duction at all was due to the fact that about 20 former UDC employees were hired. Thus it required the old employees to train the newly hired inexperienced workers who had, in the screening process, bested other experienced, but rejected former UDC workers. Gaddy testified that he had never been given any pre- diction of the expected passing rate of job applicants who survived the Malvern screening process. Nowak, Alford, and Bakr are all strangely silent as to what they anticipated as the likely pass-fail ratio. Indeed, passing test scores were ar- rived at only after a review of the first 200 tests which in- cluded the UDC applicants and thus determined how many would be hired. In further union cross-examination, Gaddy insisted that PI would have hired back ‘‘all’’ Malvern UDC employees with- out screening if they had been the ‘‘best available,’’ as he had done at Mangus. How did he arrive at the notion that UDC, a 40-year old business with many employees of 20 years or more longevity, did not already have the best avail- able employees? Well, he testified, it was Nowak (and Zachery) who gave him such doubt. Without that kind of doubt, he readily admitted that it would have been ‘‘foolish’’ to screen the Malvern workers. Gaddy, when pressed further, testified that Nowak’s doubts of Malvern employees’ capability were raised when he, Gaddy, disclosed to Nowak the planned production changes at Malvern. The testing commenced well prior to October 14 but the Capitol Club luncheon occurred, by Re- spondent’s documentation, on October 18, 1988. At first, Gaddy acknowledged that for his testimony to make any sense, he would have had to have discussed the purposed change with Nowak much earlier than October 14. Then he testified that the Capitol Club lunch meeting did not occur on the same day as the plant tour when he met Nowak. But Gaddy next testified that it was ‘‘as of that lunch’’ that Nowak not only knew that he ‘‘had the job’’ but also that the proposed product changes were discussed with him. Gaddy then testified that it was subsequent to that lunch when Nowak and Alford decided on a testing procedure and also subsequent when Nowak conveyed to Alford who, in turn, telephoned Gaddy, Nowak’s doubts about his Malvern work force. Gaddy insisted that at the Capitol Club luncheon Nowak exuded complete confidence that he could do that job and that Nowak was ‘‘not negative at all.’’ Not only is Gaddy’s description of the sequence of events which formed the motivation for testing inherently contradictory and im- plausible, it is in turn contradictory and/or inconsistent with Alford and Nowak who each also contradict one and another. Gaddy is also flatly contradicted by Baxter, whose credibility is clear. I completely discredit Gaddy’s obscure reference to Zachery’s expressed doubts of the Malvern employees’ abili- ties. The thrust of Gaddy’s testimony is that it was Nowak who created the doubt that Malvern already had the nec- essary qualified work force and, according to Gaddy, even the best qualified workers. Gaddy’s testimony as to Zachery’s unspecified disparagement is not only inconsistent, it is improbable. Further, as Alford testified that when he heard Nowak raise some criticism of Malvern UDC employ- ees’ abilities, he was so surprised that he went into a ‘‘mild panic’’ because, he testified, Gaddy was of that time pro- ceeding on the assumption that ‘‘there was no problem.’’ Thus, Gaddy’s motivation to institute a screening process as a condition precedent to Malvern UDC employees’ hiring re- sulted from the expressed doubt of Nowak. The inference is that Gaddy and Alford had ‘‘no problems,’’ i.e., no problems and no doubts as to the ability of the Malvern UDC employ- ees and no motivation for screening them until Nowak sent Alford into his ‘‘mild panic.’’ 3. PI motivation according to Alford Alford testified first in September 1990 and was examined by the General Counsel and Union’s counsel as a 611(c) wit- ness. Alford, unlike Joure, was not inexperienced as a wit- ness in a legal proceeding, having been qualified as a finan- cial or accounting expert several times. In November 1991, he testified as a witness for the Respondent. On both occa- sions, he testified as to the motivations for the institution of an open hiring screening process as a condition precedent for the hiring of the UDC Malvern plant employees. Alford testified in 1990 that at the first purchase negotia- tion meeting with Zachery, he was made aware of the Union’s representation of Malvern employees but that neither he, Keenan, nor Gaddy were aware of labor law nor the pos- sible obligation of recognition of the Union as a successor employer having hired more than a majority of the prede- cessor’s employees. He testified that it was not until August or September 1988 that thought was given to hiring employ- ees. He explained that he and his associates Gaddy and Keenan desired to hire employees in a manner that would 691 PRECISION INDUSTRIES avoid exposure to legal charges of discrimination, so they, accordingly, engaged the services of counsel of record. At that time, September or August 1988, they were apprised of their possible bargaining obligations if such a successorship with a majority of incumbent employees were effectuated. Inference might be made from this testimony that Gaddy, Keenan, and Alford had already decided that they would not simply automatically retain the incumbent employees as they would do elsewhere. Otherwise what would be the basis for fears of charges of possible discrimination? Alford testified, as a 611(c) witness, that he had no experi- ence in, and no knowledge of how to hire people but that he wanted to ‘‘go by the book’’ so he sought help. He testi- fied that ‘‘through a series of meetings’’ and ‘‘not in one single day,’’ did he and his associates decide to set up an objective hiring procedure. Therefore, he explained, at some point in September they decided to hire Dr. Bakr. He ex- plained that they decided that although Nowak was the lead- ing candidate for the Malvern manager job, they decided not to let him make the sole hiring decisions. He did not explain why. He testified that Bakr was hired and that between lis- tening to Bakr’s advice and to Nowak and Watson, he, Gaddy, and Keenan decided that they could obtain the ‘‘type of work force capable of doing what we wanted to do there.’’ Alford testified that he relied on Bakr, Nowak, and Watson ‘‘bouncing [ideas] off each other.’’ Thus Alford now shifted from fear of discrimination as a motivation to a desire for a ‘‘capable’’ work force for intended new work. Gaddy, however, wanted the ‘‘best qualified,’’ not merely capable workers, but the presumption that he already had them was dispelled by Nowak. Alford testified that it was not until Bakr’s first contact on about September 20 that there had been any significant dis- cussion of hiring procedures. Any such prior conversation was ‘‘very little’’ and that, in fact, not much was discussed about hiring procedures at all until October 7, the date on which the acquisition was deemed to be a certainty. Alford testified that ‘‘if he did it at all,’’ Nowak did not give him any ideas on hiring until late September 1988. He testified that in September and August, he did ‘‘not really’’ discuss with Nowak how to staff the plant but that ‘‘we both assumed we’d find somebody.’’ Such assumption infers that a decision had been made not to pro forma reinstate all the Malvern plant employees. Alford testified in 611(c) testi- mony that Nowak was advised of PI’s product mix intent and the type of new customers that would be sought and asked if he felt whether he could produce that type of work. Alford was not asked what Nowak’s response was nor the date of that conversation. He testified that he told Nowak that he an- ticipated acquiring more ‘‘involved’’ custom work requiring slides, cores, and expanded more complicated machining or ‘‘secondary’’ work and that PI intended to broaden the capa- bility of the Malvern employers in order to produce more in- tricate and smaller products than what had been produced at the Harrison plant by Pace. In his 611(c) testimony, Alford testified ‘‘yes’’ each to the questions: was the hiring procedure determined to be used at the Malvern plant because of the intent to acquire more cus- tom die work; because PI wanted the best employees; be- cause PI wanted to comply with the law; and because of the advice of Dr. Bakr and PI counsel of record. He answered ‘‘no’’ when asked whether there was any other reason for using a screening procedure at the Malvern plant. In his 611(c) testimony, Alford explained that virtually all the nonunit, salary rated UDC employees and UDC super- visors at Malvern were retained pro forma because Nowak requested it and because Alford believed that it was impos- sible to find such qualified persons in the Malvern area. He testified that of the ultimate 1100 applications received, none were experienced die casting supervisors. This would appear to be surprising in view of Gaddy’s awareness of a large pool of laid-off experienced employees in the Arkansas area where there is much die casting activity. Later in his 611(c) testimony, Alford was asked whether PI had intended to effectuate any other changes in the Mal- vern employees’ work function. For the first time in Re- spondent witness testimony, either in the investigation or at trial, reference was made to SPC and to Dr. Edward Deming’s philosophy. Alford testified also that he explicitly instructed Dr. Bakr that PI intended to implement SPC and that he was to be certain that employee applicants had com- munication skills and basic mathematic skills. He testified that he had SPC ‘‘in mind’’ when he gave the following pre- trial affidavit testimony: As far as skills and abilities of employees [hired] we relied on Dr. Bakr’s advice and recommendation [re- garding] hiring people at various skill levels. Contrary to Alford, that affidavit quotation and other testi- mony suggest that Bakr took the initiative regarding per- ceived necessary employee skills and that neither SPC nor the Deming philosophy had been predetermined by Alford, Gaddy, and Keenan before talking to Bakr. Although Thigpen testified to an awareness of SPC, there is no evi- dence that Gaddy and Keenan had discussed with him the implementation of SPC at Malvern. As noted above, Gaddy testified not that he obtained his knowledge of SPC from Thigpen but rather from Warner Baxter, the acknowledged die casting industry quality control expert who testified that he had never discussed implementing SPC at Malvern with anyone. Alford admitted to an ignorance of die casting expertise. Indeed, he was inexperienced in any kind of manufacturing expertise. But because of his alleged prepurchase awareness of SPC, Alford testified that he desired a flexible Malvern work force with communication and mathematic skills who could process more sophisticated products under an SPC process. In further cross-examination, Alford testified that he acqui- esced to Nowak’s request to retain, without screening or test- ing, all the supervisors (and presumably all other nonhourly rated employees, including quality control persons) because he relied on Nowak’s on-the-job past observation of them and that he did not spend money ‘‘just for the sake of test- ing.’’ He again testified that when he talked to Nowak about the future of PI Malvern work force, he asked Nowak if he felt he could get it handled. Neither the date of the conversa- tion nor Nowak’s response was elicited. Alford testified that at the time of his Nowak conversation he, Alford, had no specific knowledge of individual employee skills nor of their ‘‘industrial I.Q.,’’ nor had he any awareness of the UDC em- 692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployee skills or lack of them but that he viewed testing as a means for measuring their skills. Alford’s 611(c) testimony thus precludes the possibility, prior to the alleged expressed doubts of Nowak, that Gaddy, Keenan, or Alford had been advised of any negative opinion of the skilled UDC Malvern employees. Also, his 611(c) tes- timony, interpreted in the context of the subsequent testi- mony of Respondent witness Gaddy, discussed above, must mean that the date of the Nowak inquiry postdated the Octo- ber 18 Capitol Club luncheon. Yet, Dr. Bakr’s own records reveals that his research for aptitude tests commenced on Oc- tober 4, 1988, and the testing process was already in place by October 18. The only other inference to be drawn is that Alford did have a much earlier conversation with Nowak wherein he questioned Nowak about his opinions as to the change in product mix and employee ability. If that occurred, because of Gaddy’s testimony as to an enthusiastic com- pletely nonnegative Nowak as of October 18, 1988, the nec- essary inference is that Nowak did not disparage his own nor the employees’ ability in such earlier conversation. Without even considering additional contradictory testi- mony of Alford, Nowak and, in part, Bakr, the foregoing tes- timony of Alford and Gaddy clearly impairs Respondent’s credibility and its defense. At this juncture, let us consider Alford’s testimony given subsequent to that of Gaddy. Alford testified as a Respondent witness who had been present at the counsel table assisting in Respondent’s defense virtually at all trial sessions, and after all General Counsel witnesses and many Respondent witnesses had testified. At this point, the flow of Respondent evidence is confusing and contradictory as to whether it is Respondent’s position that hiring of former UDC Malvern employees was conditioned on a screening process for predetermined abstract business reasons prior to conversations with UDC managers or wheth- er it was decided on because of those conversations with or without Bakr. Alford’s testimony does not relieve that confu- sion. In an apparent attempt to establish that the UDC man- agement doubt of employee ability was the causation factor, Alford’s subsequent testimony sought to establish a pre-Cap- itol Club luncheon motivational event, i.e., the Western Siz- zler Restaurant luncheon meeting allegedly attended in Mal- vern by himself and Nowak. At first, Alford placed the meet- ing as having been held sometime in August 1988 or ‘‘most likely’’ in September 1988. Later, he fixed the month as Sep- tember. It supposedly occurred during a plant visit, presum- ably either Gaddy was not present on that visit or, like Wat- son and others, for unknown reasons did not take lunch with Alford and Nowak. Thus, only Nowak can corroborate Alford. According to Alford, in that undated September meeting, Nowak was already made aware that Alford was to become the president of PI. Alford testified that one of several items he had discussed with Nowak was the disclosure to Nowak of PI’s intent to bring into the Malvern plant a ‘‘new kind of work’’ and also its intention to close the Little Rock plant. Alford testified further as follows. He told Nowak that Starkey refused to produce a certain kind of custom work, i.e., the Skil account then being solicited by Thigpen. Alford described to Nowak the nature of this work and asked Nowak that if he were to be the Malvern plant manager, whether he could solicit such work for that plant. Nowak re- sponded that he would have difficulty producing this type of work, with which he was familiar, because he was particu- larly concerned about the physical ability of the UDC Mal- vern employees to perform the hand sanding to the exact cosmetic standards required. Nowak told Alford that the Skil work was not what his employees were used to performing. Alford testified that he went into a ‘‘mild panic.’’ He testi- fied that Gaddy had assumed that there would be no prob- lem. Alford stated, apparently silently to himself: ‘‘I was re- sponsible and Nowak is saying, ‘this isn’t going to work.’’’ Of course, Alford’s own exaggerated account of what Nowak actually said falls far short of any such conclusion. The Skil work, in fact, did not actually commence at the PI Malvern plant until April 1989. Alford testified that he did not offer Nowak a job at the Western Sizzler meeting and Nowak did not convince him then to use any screening or hiring process. Alford testified that he considered Nowak the leading candidate for the Mal- vern manager position but that Nowak was not officially of- fered a job until the October 18 Capitol Club luncheon meet- ing. Both he and Gaddy were aware of Nowak’s experience at ‘‘I’’ and were virtually predetermined and enthusiastic about his hiring, which was considered by Gaddy to be a ne- cessity. Nowak denied that he had been privy to the decision to close the Little Rock plant and further testified that he was not apprised of it until the October 18 meeting when he was formally offered the PI job. Moreover, Nowak testified that it was he who raised the topic by questioning Gaddy and Alford as to their motivation for the disparity in hiring proce- dures at Malvern and Little Rock. Nowak testified that he explicitly raised the prospect of possible labor law violations regarding union activity, age, and sex discrimination viola- tions. It was because of that question that they notified him that the Little Rock plant was not instituting a screening process because it was intended to be closed. His testimony is replete with further inconsistency and contradicts that of Alford, Gaddy, and other Respondent witnesses and will be examined in more detail after further analysis of Alford’s 1991 testimony as a Respondent witness. Next in sequence, as earlier noted, Alford testified that having had no hiring experience, he thought to himself that he either must rely on Nowak or devise his own hiring plan or hire an expert. The testimonial sequence suggests that the Western Sizzler meeting preceded this stage of Alford’s per- ceptions and was therefore a motivational factor for having any screening procedures at Malvern. The testimony is not quite that precise, but the implication is clear enough. Inexplicably, however, Alford testified that had Nowak recommended the rehiring of the UDC employees without screening, he ‘‘probably’’ would not have done so. This flat- ly contradicts Gaddy’s testimony and also contradicts other testimony of Alford which attributed to Nowak the motiva- tion to institute a screening process as a UDC employee prehiring condition. Moreover, Nowak testified that at one point after the screening process was well into formalization, Alford suggested to him that, in addition to salaried employ- ees, Nowak ought to chose at least some hourly employees whom he considered well qualified to be hired without being subjected to screening. Nowak testified that it was he who declined Alford’s suggestion and insisted that they follow through on universal screening and testing of all Malvern UDC employees. Not only is the inconsistency of this testi- 693 PRECISION INDUSTRIES mony significant but, if Nowak is accurate, it reveals that Alford was willing to trust the subjective employee appraisal of Nowak to the extent necessary to obtain enough qualified of a minority of UDC workers to get production going with- out benefit of screening, testing, and medical examination. Later, in direct examination, after a recess, as a Respondent witness in answer to leading examination, Alford modified the foregoing version of the Sizzler meeting by adding that Nowak made some generalized reference to back problems of the UDC employees which would adversely affect their abil- ity to work with the larger Little Rock dies. In cross-examination, Alford testified to yet a different version of the Sizzler meeting. He testified that when he was told of the prospective work for the Malvern plant, Nowak did not respond to a question by Alford but rather, ‘‘out of the clear blue sky,’’ proceeded to tell Alford that his work force could not perform work on the Skil products because of sanding requirements and the physical inability to stand all day and do intricate sanding. (There is no evidence that UDC employees sat while performing their duties.) He testified further in cross-examination that it was his decision to retain only as many UDC employees who passed the screening process and to open the field to nonemployees as well. He testified that he made that decision ‘‘unquestionably,’’ in part because of his conversation with Nowak at the Western Siz- zler. He testified to no other motivation than that he wanted the most qualified employees and Nowak raised doubts that his employees were the most qualified. In cross-examination, Alford testified that he did ask Nowak whether his super- visors were capable of SPC production at the time Nowak was hired and that, by October 15, he had decided that Nowak ‘‘was the guy,’’ i.e., that he should formally be of- fered the PI job. He did not explain why he did not question Nowak about the supervisors’ SPC capability until well after it had been decided that hourly rated employees needed to be tested for such capability. In direct examination in 1990, Alford testified that Bakr had been recommended to him by Respondent counsel of record as well as one other expert whose name he did not recall. He testified that he telephoned Dr. Bakr, chatted a while and then immediately decided that although Bakr had a funny accent, he sounded ‘‘ok,’’ and arranged to meet him in Malvern within 2 or 3 days. When they met, according to Alford, he described to Bakr the Harrison plant and PI’s intention to acquire two plants for production of the type of custom work not done at Harrison. Alford testified that he told Bakr that he wanted him to help Nowak and Watson to develop a Malvern plant layout in the most logical way and that PI wanted to hire the most competent hourly paid em- ployees. He testified that Bakr asked if the employees were rep- resented by a union and was told they were. What else, if anything, they discussed about the Union is undisclosed. Ac- cording to Alford, the subject of the Union was dropped and there was no instruction or discussions regarding discrimina- tion against union or UDC incumbent employees. In a most assertive manner, Alford testified that as of that very first meeting with Bakr, he had explicated his objective so clearly that both he and Bakr ‘‘came to an understanding’’ that Bakr was to ‘‘help us devise and if needed to administer tests to hire a qualified work force.’’ Dr. Bakr’s testimony is not as clear and certain as one might have hoped. Bakr explained that he had difficulty re- calling events 2 years in the past. He testified that his first contact with PI had not been from Alford, but from Re- spondent’s counsel of record in a telephone call to him at his UALR office, and that he agreed to meet the next day with PI officials at Malvern, which he did, and was hired. Bakr testified that Respondent counsel very briefly described the acquisition and intended changes in product mix and that they needed help to evaluate the planned operation and im- provements in work methods. Bakr’s time and charges records set the first Malvern plant visit to be September 20, 1988. Bakr testified in his pretrial affidavit that when he met Alford, the latter was very specific as to what needed to be done, i.e., to change the plant work procedure and layout. He testified as a 611(c) witness on September 20, 1990, that he was told that his role was to review the plant operation and its methods and to ‘‘evaluate personnel’’ to get the plant to be able to produce custom die casting work profitably or, as he amended his testimony, ‘‘more profitably.’’ He did not testify as to whether Alford explained whether or not person- nel evaluation entailed his involvement in any sort of appli- cant screening or testing or whether it referred to any evalua- tion of old employees for purpose of training. He testified that he thereafter engaged in a series of meetings at Malvern with Nowak and Watson, with whom he consulted and ob- tained information and suggestions on which he rec- ommended certain changes in plant layout, machines, reloca- tion and on which he commenced work on a series of tests to be given job applicants. Somewhere in that series of joint discussions, according to Bakr, they ‘‘wrestled’’ with the question of how to provide a skilled work force who were capable of operating the in- tended plant and how to identify people with its needed skills. He testified that it was thus on a number of occasions that the question of testing arose and it was ‘‘probably’’ he, Bakr, who first brought up the idea of testing as a way to identify skills. Thus, according to Bakr’s 611(c) testimony, he had no explicit mandate on September 29, 1988, from Alford to devise and administer a prehiring screening proce- dure. Rather, the idea arose during many conversations with Nowak and Watson. His testimony, however, does suggest that he was initially to ‘‘evaluate personnel.’’ That is perhaps some slight but very weak and ambiguous corroboration of Alford that prior to Bakr’s hiring, doubts were raised as to the Malvern work force ability which necessitated evaluation by an expert. Thus, according to Bakr’s testimony, he was not given the option of even considering the hiring and re- training of the former UDC employees. Thus, according to this version of Respondent’s defense, the decision to subject the Malvern employees to the pre- condition screening-testing process was not made because of some preexisting policy or abstract desire for prehire screen- ing or mind-set of Gaddy, Alford, and Keenan but because of doubts as to Malvern employee abilities revealed by the Malvern management, i.e., Nowak. However, for that theory of defense to have credibility, it was necessary to fix the Nowak revelations prior to Bakr’s hiring. Therein lies the problem. Not only does Alford’s testimony contradict Gaddy, but it contradicts that of Nowak whose detailed 611(c) exam- ination by counsel for the General Counsel covering a step- 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD by-step, meeting by meeting chronology of prepurchase con- tacts between Nowak and any PI representative renders the September 1988 Western Sizzler meeting an impossibility, except for Nowak’s own mendacity or unreliability. 4. PI motivation according to Nowak, exclusive of Bakr’s participation Nowak testified that the first contact he had with PI re- garding a job offer was on Sunday, October 16. But he testi- fied that he first met Alford about 3 or 4 weeks earlier at the Malvern plant when he was accompanied by a group of persons, including Zachery and Gaddy. Alford and Gaddy were introduced to Nowak as potential buyers of the UDC business, and Nowak was instructed to cooperate with them during their tour of the plant. That first meeting was a fact- finding venture with respect to customer base, profit base, and financial data. The following sequence of meetings oc- curred. Within a week of that first meeting, Alford, Gaddy, Nowak, and Watson discussed the identity of customers, sales history, recently lost accounts, and its impact on profit- ability for the forthcoming year, and sales trends. Gaddy ex- pressed concern over the recent loss of the Lawnboy flywheel account and told Nowak that there must be an effort to obtain more custom die work for the operation to be prof- itable. Alford was concerned about the dip in sales and asked whether it was a seasonable phenomenon. The seasonality of the proprietary product, i.e., water spigot handwheels, was explained to him, i.e., it is allegedly construction industry de- pendent (according to Gaddy). On October 14, 1988, only 35 employees were actively on the job according to Nowak. The others presumably were in layoff status. Some may have been terminated or laid off in expectation of the closure. There is no explanation in the record as to the reason for the low active employment level, how long it had lasted nor whether it was temporary. Respondent’s documentary evi- dence discloses over 100 UDC employees. It was stipulated that about 84 former UDC employees who were screened were employed by UDC on October 14, 1988. Nowak testi- fied also that despite the apparent layoffs, the hiring proce- dure’s necessary shutdown of production and hiring delays did cause delivery problems. Alford testified that it took 6 to 8 weeks of steady hiring before enough employees were available for ‘‘full production,’’ i.e., for work that was avail- able to them. By November 30, PI had hired 49 employees and by December 31, 64 employees. Alford testified else- where that he told Key that full production could not be ex- pected until January and that commitments to customers would be disrupted because of the hiring delays. Clearly then, despite the active employment of only 35 employees at closure date, there was an almost immediate need thereafter for full employment of the alleged discriminatees. Nowak testified that at that second meeting, Alford toured the plant with him. He testified that the Malvern employees were not discussed that day. Nowak testified that he had ‘‘one more meeting’’ and only the third meeting with Alford on the date that Alford introduced him and Watson to Dr. Bakr as an independent industrial engineer who had been hired by PI as a consultant, and with whom they arranged a meeting which was held about 1 or 2 weeks before the pur- chase. Nowak testified that there had been no other meetings that he could recollect. A meeting in the nature of the West- ern Sizzler meeting would certainly have impinged on his recollection which, as an adverse witness, was one of aggres- sive certitude. Nowak testified that when Alford introduced Bakr, he told him that it was for the purpose of reviewing the facilities and the plant operation as a precedent to a study that Bakr would make with an eye to determine if there needed to be any changes that might enhance the plant’s profits and productiv- ity. Thus, according to Nowak, changes in operation were something that had not yet been determined and not as de- scribed by Alford. Nowak went on to testify that in his pres- ence, Alford instructed Bakr as to his mission, i.e., to tell PI what would have to be done to the plant in the way of equip- ment and layout to become saleable or profitable. According to Nowak, it was at this meeting with Bakr and Watson that Alford elicited from Nowak and Watson their review of what operations would, in general, be expected as the result of new custom work. That is the extent of his communication with Alford up to that time. Nowak testified, however, that he told Bakr that based on his experience at ‘‘I,’’ the type of custom work that Alford ‘‘probably’’ wanted to solicit for Malvern would necessitate considerably more handwork, the operations would not be to- tally controlled (i.e., a high turnover of short orders required flexibility), and cosmetic-contoured hand sanding in the re- moval of a parting line on the face of a casting would be required. He testified that he told Bakr that such castings were more complex in geometry and configuration than what UDC produced. Nowak testified that UDC employees had not sanded in the manner ‘‘now defined’’ for PI employees. He failed to explain convincingly in his testimony precisely why the contour sanding would be that much more difficult from that already performed by UDC employees in the re- moval of ‘‘flash,’’ excess metal casting. Nowak testified that he told Bakr that he ‘‘needed a special orientation process’’ at any additional hand sanding operation and also for any ad- ditional work in the nature of ‘‘single point drilling,’’ special finishing or custom painting. They also discussed the UDC flow of product through the plant and its cumbersome out- dated nature. Nowak was not clear as to what part of his communica- tions was with Bakr alone as they toured the plant, or in Alford’s presence. He testified that Alford requested Bakr to assemble a proposal as to a floor plan and to do so quickly as the plant purchase was imminent. Nowak was not offered a job at that time. He recalled giving no further advice to Bakr or Alford. He placed the meeting as 1 or 2 weeks be- fore the asset purchase. He testified that prior to the closure, only three more meetings were held with Bakr and Watson and that, at that point, Alford was ‘‘out of the picture.’’ Clearly, his testimony thus far cannot be construed to be a significant disparagement of UDC employees’ ability nor even a doubting of it. At most, he recommended to Bakr, not Alford, that an ‘‘orientation’’ process, i.e., some limited spe- cialized training, might be needed for the type of work Alford ‘‘probably’’ desired to acquire. There was no ref- erence to SPC, and Nowak did not tell Bakr that he had doubts as to UDC employees’ general adaptability, their mathematic abilities, their communication skills, their phys- ical impairments or that they were not capable of cosmetic sanding. He failed to testify that Alford charged Nowak with the responsibility to devise and/or apply hiring procedures. 695 PRECISION INDUSTRIES There is no room within the circumference of Nowak’s ac- count of his prepurchase conversations to include therein the nature of the Sizzler conversation with Alford, regardless of location. Indeed, therefore, Nowak indicates it was only in subsequent conversations he had with Bakr where the subject of Malvern UDC employees’ abilities was first ever men- tioned by him or Bakr, or anyone else. Thus Nowak’s testi- mony not only contradicts Alford’s Western Sizzler testi- mony but also Alford’s representations to Connor and Key that Nowak convinced a reluctant Gaddy and Keenan into ac- cepting a screening procedure with its inherent production shutdown. Of course, Alford’s own testimony is self-con- tradictory. Nowak next proceeded with a series of meetings with Bakr, the description of which in part is corroborated by Watson and Bakr, but part of which is contradicted by their testimony or significantly inconsistent with it. Dr. Bakr’s time and charge record log reveals that he made the following Malvern plant visits for the reasons as noted there: Date Hours Description 1. Sept. 20, 1988 5 ‘‘discuss project’’ 2. Sept. 22 5 ‘‘review proposed improvements & define project scope’’ 3. Sept. 27 4.5 ‘‘review code/classification anal- ysis’’ 4. Sept. 29 4.5 ‘‘die cast work cell planning’’ [N.B. the log indicates for Oct. 4 ‘‘aptitude tests—research’’ at a nonplant location] 5. Oct. 5 3 ‘‘review work classification’’ 6. Oct. 10 3 ‘‘job description’’ 7. Oct. 11 3 ‘‘work cell planning’’ 8. Oct. 12 3 ‘‘aptitude tests & set-up’’ 9. Oct. 17 5 ‘‘meeting at Malvern VO-Tech’’ [an employment agency] 10. Oct. 19 3 ‘‘Test set-up’’ [the log also contains 17 addi- tional hours on non-plant site work on ‘‘blue print reading test,’’ ‘‘Manual for dexterity tests,’’ ‘‘Test & video-tape for die cast principles.’’ 11. Oct. 24 2 ‘‘Test progress & data’’ Dr. Bakr’s log also reveals nonplant site meetings with Re- spondent counsel on October 14 and with ‘‘Dave [Watson] & Margie [Kratz].’’ The September 29 entry is not explicitly entitled ‘‘plant visit’’ but, since it involved 90 miles expenditures, identical to a plant visit cost charge, it obviously occurred at the Mal- vern plant. The UDC closure occurred at the end of business on Fri- day, October 14. It is not clear whether Bakr was introduced to Nowak during his initial September 20 visit. However, Nowak’s description of his third meeting with PI representa- tives seem to coincide with Bakr’s log entry description for his second visit on September 22. Nowak’s testimony as to having had only three more preclosure meetings, all within 1 week, seems to preclude the September 27 and 29 meeting which would have been a sig- nificant meeting, because it was on October 4, prior to his next meeting, that Bakr commenced research for aptitude tests. It is possible that Bakr met with other UDC managers on September 27 and/or September 29. As we shall see, it is highly unlikely from Watson’s testimony that Bakr had discussions about the need for testing, with Watson alone, that caused him to start this research. If he did not meet with Nowak on September 27 or 29, and did not get his testing ideas from Watson alone, then he must have been given in- structions to devise a testing procedure on or before Septem- ber 27, a date well before Nowak testified that he had any discussions or made any comments about UDC employees’ sanding experience or any other new job functions. As we have seen, the most he discussed with Bakr was the possible need for ‘‘orientation,’’ i.e., training. Tests were not even mentioned according to Nowak. Thus, if Bakr received such test development instructions, he got them from Alford at a time when Nowak testified that he had not yet discussed the employees with Alford. Further, at the only three remaining preclosure meetings Nowak testified that he attended with any PI representative, Alford ‘‘was out of the picture,’’ i.e., he had no such meeting. Therefore, according to Nowak’s 611(c) testimony, there was no Western Sizzler meeting; there were no employee ability doubts expressed by Nowak; there was no basis for Alford to panic; there was no reason to disabuse Gaddy of his assumption that there were no prob- lems regarding the UDC employees’ ability and, according to Gaddy, no motivation to condition the rehiring of UDC Mal- vern employees on a prehire screening-testing, physical ex- amination, and back X-ray process, a process which Gaddy admitted would otherwise have been ‘‘foolish.’’ Nowak testi- fied as a 611(c) witness on September 18, 1990. He testified as a Respondent witness on July 23, 1991, but despite re- sponding to elicited categorical denials of unlawful motiva- tion, he failed to testify to any further conversation with Alford than he had in his prior testimony. As revealed above, a vast amount of Alford’s and Gaddy’s motivational testimony is simply inconsistent and/or outright contradictory to their motivational statements made to Con- nor and Key, i.e., that Nowak persuaded a reluctant Gaddy and Keenan to jeopardize production commitments by incur- ring a hiatus solely for the purpose of a plantwide screening and testing of the UDC Malvern employees, whom they ap- parently must have decided could have continued with the ongoing and anticipated production schedule and with whom Gaddy perceived to be no problem until Nowak’s alleged Western Sizzler disclosure. It is also contradictory to Alford’s very first explanation to Connor. As observed above, Alford’s own testimony is internally improbable, inconsistent, and self-contradictory. Of further significance is that nowhere in Alford’s testimony is there a disclosure that he ever explained to Connor and Key the need for SPC training at the Malvern plant nor did he refer to doubts about the Malvern plant UDC employees’ ability to perform work on an expanded custom die casting product mix. Such explanation, if it existed, would have been the most obvious to make in the face of admitted persistent accu- sations of unlawful motivation. The intended closure of the Little Rock plant in no way prevented such explanation. It is more logical that Connor would have been told that the Little Rock plant was already performing 100-percent custom 696 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work and its employees had been trained in SPC and were on the way to obtaining a Q-1 rating from Ford. In light of Kindy’s testimony as to such, Thigpen’s generalized contrary conclusions based on observation of the poor state of ma- chinery at Little Rock is not credible. Kindy, whose manage- rial expertise was admittedly highly esteemed by Respondent, testified that despite the poor state of equipment, the Little Rock employees were able to satisfy customer requirements, i.e., inclusive of Ford’s Q-1 progressive quality improvement program. Of further significance from Nowak’s 611(c) testimony is the complete absence of any preclosure discussion with any PI representative regarding the UDC Malvern employees’ trainability in SPC. That quality process itself was not even discussed with him as an explicit objective of PI. Rather, it was the physical nature of the new work to be solicited that was discussed. Nowak, as witness for Respondent, testified that in his discussions with Bakr, no questions at all were raised as to the quality of the UDC work force nor did Bakr ask him whether SPC had been used in the plant. Such testi- mony is inconsistent with Bakr’s testimony that he was ini- tially immediately ordered by Alford to evaluate personnel. Of course, Respondent adduced generalized evidence that many of the customers whom they intended to solicit de- manded an SPC operation. However, SPC in relation to the abilities of the incumbent employees was not explicitly dis- cussed between Nowak and Alford in either version of their testimony, as it was not discussed between Nowak and Bakr according to Nowak. Alford testified, without corroboration, that he first questioned Nowak as to the UDC supervisors’ SPC abilities when he hired Nowak, i.e., after the acquisi- tion. The relevant factor here is not the true nature of SPC, but rather PI’s perceptions at the time of decision making. 5. PI motivation as a result of Bakr consultation according to Nowak If Respondent did not institute a prehiring screening proc- ess for Malvern employees because of a preacquisition moti- vation precipitated by Nowak’s expressed employee ability doubts to Alford, is there evidence that it did so as a result of recommendations of Bakr, Nowak, and/or Watson, either jointly or singly, arising from those preclosure plant meetings between them? One of Alford’s various explanations is that the hiring procedure was the result of ‘‘bouncing ideas’’ off the three of them, albeit that testimony is inconsistent with his other testimony. Nowak testified that he had three preclosure plant meet- ings with Bakr, all within the same week on Monday, Wednesday, and Friday during the week preceding the week of closure, i.e., October 3, 5, and 7. Bakr’s time and charges log, which I find eminently more reliable, accurate, and cred- ible, reveals no such sequence. The only preclosure week of more than one meeting on either Monday or Wednesday oc- curred on October 10, 11, and 12, after Bakr already com- menced his research for ‘‘aptitude tests.’’ The meeting pre- ceding those meetings was on October 5 where Bakr re- viewed the work classification. The one before that was on September 29 for ‘‘die cast work cell planning.’’ According to Nowak, his fourth meeting, i.e., the first of the three non-Alford, preclosure meetings, consisted of him- self, Watson, and Bakr wherein Bakr again toured the plant, took notes and measurements, and discussed ‘‘standards’’ and the flow of material through the plant and wherein Bakr asked for a plant layout, of which there was none. Nowak described the next sequence of events as follows: On Wednesday, Bakr returned and again met with Watson with a preliminary floor plan and a proposed relocation of ma- chines. Bakr asked for job descriptions and was told none existed. Bakr took notes. There was a discussion of proposal to create work cells and the concept thereof, for the purpose of reducing the work flow, i.e., each cell would be composed of a die cast machine and a trim press, or also some vibra- tors, etc., with relocation of other functions to the paint room. Bakr complained of being under a time target pressure. Bakr’s log of September 29 and October 11 refers to ‘‘work cell planning’’ visits. At the sixth meeting (third in the non-Alford meetings, ac- cording to Nowak) on Friday, 1 week exactly before closure, Nowak reviewed Bakr’s final plant layout sketches and some proposed job classifications he also had prepared. They dis- cussed the possibility of combining certain job classifica- tions, i.e., changing the flow of production and the respon- sibility of the die caster. They discussed the impact on the work function by the expected new customer work, e.g., slides or moving members that create different mold configu- rations and ejectors, the moving members which push out the metal. They discussed an increased responsibility to care for the tools owned by the customer, inherent in custom die work, of which 50 percent of Malvern’s sales already in- cluded. It was within the context of the discussion of additions or changes to job functions, only 1 week before closure accord- ing to Nowak, that he and Bakr discussed the ‘‘need [for] a way to evaluate on an objective basis [the] job applicants.’’ Nowak, certain of the sequence of these events, testified that Zachery had already announced during that very week that UDC employees were to be terminated and he, himself, had contacted a ‘‘head hunter’’ and had two possible jobs lined up for himself. According to Nowak, he and Bakr thereupon discussed how job applicants would be screened. He testified that this was the very ‘‘first mention of employees.’’ Nowak is obscure as to how the assumption was made that the old employees would not simply be recalled to their ongoing production activities and subsequently oriented or trained as new work was acquired but, instead, would be thrown into an open pool of ‘‘applicants.’’ He is also obscure as to just what he and/or Bakr or Watson said in more detail about the subjects of objective evaluation and screening and their ne- cessity. Nowak testified that there was no discussion at all which involved consideration of the automatic retention of incum- bent employees. He testified that Zachery’s termination con- stituted a ‘‘done deal.’’ Again, we are reminded of Alford and Gaddy’s testimony that there was no such ‘‘done deal’’ until Nowak raised those ‘‘doubts.’’ Continuing with the description of Nowak’s alleged Octo- ber 7 meeting with Bakr wherein the idea of an applicant screening procedure was allegedly first raised, Nowak testi- fied that he and Bakr discussed how they would go about screening job applicants ‘‘to meet the requirements of these classifications.’’ Neither in his 611(c) testimony nor in sub- sequent testimony for Respondent did Nowak give the spe- cifics of these discussions. Nowak first testified that the deci- sion not to screen and test the supervisors was made ‘‘in 697 PRECISION INDUSTRIES conjunction’’ with Bakr. When pressed by counsel for the General Counsel, he testified that the supervisory hiring deci- sion was made by Bakr ‘‘by himself.’’ Nowak testified that Bakr agreed to many of ‘‘our’’ rec- ommendations as to the nature of the screening and testing process. The ‘‘we’’ must necessarily refer to Watson whom, it may be recalled, Alford also incorporated into the test de- velopmental process and whom Bakr did as well. Nowak list- ed the paint tree test as one of his and/or Watson’s rec- ommendations. Nowak testified that he also recommended that Bakr adopt a basic applied electricity test for mainte- nance employees that Nowak had derived from an earlier op- tional in-plant basic electricity refresher training program that had been allegedly open to UDC maintenance employees. Pilcher’s testimony indicated the limited nature of the pro- gram. Nowak testified that Bakr made specific recommenda- tions as to certain types of tests, e.g., a mechanical aptitude test, a verbal skills test, a card sorting test, PTI and NTMA tests, etc. He also testified that he and Watson rejected some specific tests that Bakr proposed consisting of certain actual die casting job functions which, on consultation, he and Wat- son considered to be ‘‘cumbersome.’’ Thus, Nowak testified in effect, that the first mention of employee ability and the very idea of screening and testing arose at this purported October 7 meeting, so close to the closure date, and yet Bakr remarkably and instantly re- sponded with specific recommendations. Bakr’s log and his testimony contradict Nowak. The log discloses that he started off plant test research on October 4, that he started offsite work on job classifications on September 30, continued dis- cussion on that type at the plant on October 6 and October 10 and commenced the test setup on October 12 at the plant. It was impossible to have raised the idea of testing for the first time on Friday, October 7, and to have telescoped the conception of and revelation of testing ideas spontaneously on that date. Bakr’s log shows that he worked on those tests away from the plant on October 4. His testimony suggests a series of meetings before he came up with test suggestions. According to Nowak, the next event that occurred was a meeting between Watson and Bakr on the weekend before closure when Watson went to Bakr to obtain the tests pre- pared by Bakr and then delivered the tests to Nowak, with whom Watson discussed their administration and grading. The only off-plant weekend meeting noted in Bakr’s log with Watson is on Saturday, October 15, at UALR (with Kratz) and also on October 17, 1988. Nowak testified that after Watson delivered Bakr’s tests, there were no other meetings of any kind. He testified that he reviewed Bakr’s tests and concluded that they were fair and objective but that he did not know what to do with them because he and Watson did not know what role they were to play at the PI operation, i.e., they had not yet been offered a job. Certainly, they would have had a strong clue if it had already been deter- mined that, according to Alford, the supervisors were to be retained without screening pursuant to the UDC plant man- ager’s past evaluation of their known and observed abilities. Nowak testified that on Sunday, October 16, he, Kratz, and Alford met at the plant and Nowak was then told that he would be acting as plant manger. He testified that Alford then asked him where they stood with respect to Bakr and the job applications and whether they were ready to screen and hire employees. It was then that Nowak told Alford that he would hire Watson and discuss the hiring process with him. Alford interviewed Kratz separately that Sunday. Nowak testified that Alford told him that it did not appear to him that there were no potential foremen other than the original group of UDC foremen who had any experience in die casting and he solicited Nowak’s opinion. Nowak testi- fied that he answered that he would be ‘‘comfortable’’ with them and, with a few exceptions, would rehire them all with- out screening or testing. This is inconsistent with his testi- mony that Bakr decided to hire the supervisors unscreened. However, it is conceivable, although not likely, that Nowak did not tell Alford that Bakr had already decided the issue. According to Nowak, Alford told him at the Sunday meet- ing that he had reviewed the applications of salaried UDC employees and requested Nowak to do the same but Nowak replied that he recommended the rehiring, without screening, of office and other salaried employees except for the recep- tionist and one quality control technician. It was then that Nowak rejected Alford’s suggestion for immediate, non- screening rehiring of at least some hourly rated UDC bar- gaining unit employees whom Nowak considered to be quali- fied in order to minimize lost production time. Nowak testi- fied that he told Alford that there were some ‘‘fine people’’ among the UDC employees but that they needed to get the ‘‘best people’’ for the job, which would be accomplished by the testing process devised by Bakr and himself. This is the only testimony of Nowak that remotely approaches Alford’s characterization of Nowak as being the person who per- suaded the reluctant Gaddy and Keenan to adopt the screen- ing process. According to Nowak, Alford proposed that only some of the unscreened UDC employees be immediately re- instated. According to Alford’s and Connor’s testimony, Alford represented that Nowak was the original cause of the entire screening procedure in the first place. Nowak testified that he had, of course, been aware of the quality level of UDC employees in the past but he was un- certain how they would adapt to a ‘‘spiralling influx’’ of new work. Later, he admitted that the ‘‘influx’’ was, in, fact grad- ual. He testified that the next meeting he had was with Alford and Gaddy in Little Rock on Wednesday, i.e., Octo- ber 17. More likely, it was October 18, according to Gaddy, at the Capitol Club luncheon described above. When he later testified as a witness for the Respondent in July 1991, Nowak testified that the reason that PI solicited non-UDC employees was because Alford and Gaddy’s plans called for a ‘‘dramatic’’ change in business which called for shorter customer job runs and more frequent type of die work turnover and it was necessary to have employees with a ‘‘shorter learning curve’’ ability. He testified that ‘‘we’’ wanted to know whether the UDC employees were better than the ‘‘general public at large.’’ He testified that the UDC employees could very well have been reinstated without screening but only with ‘‘uncertainty’’ that they could adapt ‘‘in a timely fashion.’’ Back in September 1990 as a 611(c) witness, Nowak testi- fied that so many applicants were failing the PTI tests (de- scribed elsewhere) that it became apparent that not enough experienced UDC employees would be rehired to enable re- sumption of any production, new or old. Thus he and Watson persuaded Bakr to give UDC employees a five-point PTI test bonus. Nowak explained that to Alford and himself ‘‘it made sense . . . to get former UDC employees in there if we 698 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD could [because] there would be less of a learning curve.’’ So, by Nowak’s own admission, the former UDC employees were in fact perceived by him and Alford to have required a lower learning curve than the general public at large; and, when the results of the screening process were producing supposedly adaptable employees but with a longer learning curve, that process was deviated from sufficiently to give PI just enough of the UDC employees to get the plant oper- ational. There is no convincing explanation by Nowak as to why he arbitrarily selected a certain cutoff point in the PTI score or why he adhered to a hiring process that patently to him was not producing employees with a learning curve short enough to expedite production. He testified, however, that he would have lowered the cutoff score further except for Bakr’s opposition. According to Nowak’s uncorroborated testimony, Bakr warned that a lower score would cause ‘‘trouble’’ later on when the plant work became more com- plex. The trouble with that advice was that the testing proc- ess had not yet been producing employees capable of carry- ing on the old job function without the help, training, and experience of at least some former UDC employees. 6. PI motivation according to Dr. Bakr Bakr’s testimony as to the sequence of these discussions with Nowak and Watson, except for his log, is generalized and imprecise. He testified vaguely that the ‘‘idea’’ of testing was not ‘‘seriously’’ discussed until after the job descriptions were made available because he was unaware, until then, what skills would be required of the employees. He was not sure when he finished his job skills compilation in relation to plant closure but, soon after that, ‘‘we,’’ i.e., he, Nowak, and Watson, got into the ‘‘selection of tests.’’ In his 611(c) examination, Bakr’s description of the cir- cumstances of setting the PTI cutoff score differs from that of Nowak. He testified that he recommended a cutoff score of 40 of a possible 80 points simply because it was a 50- percent score. He testified that it was merely his ‘‘subjective judgment.’’ He testified that ‘‘we’’ ended up recommending 30 as a decision jointly reached because of the high rejection rate, i.e., they recognized something was wrong. However, no objective analysis was made to ascertain a mean score. He did not expand on that testimony in his later testimony as a Respondent witness. Thus there is no scientific basis for the conclusion allegedly attributed to him by Nowak that a lower PTI score would endanger to a significant degree the quality of the employee hired. Bakr and Watson contradict Nowak’s testimony that it was Bakr and Watson who deter- mined the cutoff score of the NTMA tests given to mainte- nance employees. Bakr’s testimony reveals also the participation of Nowak and Watson in the evolution of the testing procedures and the establishment of other cutoff scores and their influence on him, including the use of medical examinations and back X- rays requested by Nowak instead of a physical ability test proposed first by Bakr. Thus Bakr testified in generalities that he had been informed by Nowak or Watson that the Malvern plant had a quality problem, that its scrap rate was only at the accepted industry standards, that employees need- ed training for contour cosmetic sanding and that he had not been fully advised of the employees’ prior exposure to SPC processes or SPC training. Bakr also gained the impression that custom work was by its very nature much more com- plicated than proprietary work and the custom work done by UDC. In sum, Bakr’s entire conception of the evaluations of the UDC employees, the nature of work performed by them, and the nature of new work to be obtained was based on in- formation given him by Nowak and Watson, except for a very limited observation when he visited the plant and felt pressured by a deadline. As a Respondent witness in cross- examination, however, he admitted that Watson told him that a certain limited degree of charting had been done by some UDC employees. He apparently did not investigate nor was he told the extent of it, nor was he aware that some custom sanding had actually been performed by UDC employees. There is no evidence of any history of employee communica- tion problems or significant mathematics disabilities except as discussed above, and no evidence Bakr was informed of it. Despite Nowak’s recognition of the experience of UDC workers as a necessary factor for successful resumption of production and his assertion that their plant experience ought to have given them an advantage over the general public given the nature of the tests, Bakr put a completely different emphasis on the tests objectives. He testified the objective of those tests, as he was given to perceive it, was to ascertain an abstract, generic, potential ability in employees with re- spect to manual dexterity, communication abilities, etc., and that, to do such, the tests must equalize all applicants as on a ‘‘level playing field’’ whereby past die casting experience would not give the UDC employee any advantage over the nonemployee. To Bakr, the suggestion that UDC past experi- ence would give them an advantage was contrary to the in- tent of the tests. Bakr seems to admit that past die casting experience ought not to have had a measurable impact on the scores. Thus the tests sought to aim at measuring an appli- cant’s general dexterity, communication skills, learning and adaptability potential, and not what ability the person actu- ally possessed for the specific functions of die casting either SPC or non-SPC. Although there is much confusion in the testimony of Nowak, Watson, and Bakr as to who recommended what to whom in the assembly of the screening and the testing of Malvern plant job applicants, according to Bakr, his conclu- sions and recommendations were premised in very large part on information and advice given to him by Nowak and Wat- son. Although SPC adaptability was alleged to have been the concern of Gaddy and Alford, there was no participation in the development of the Malvern plant screening process by any personnel from Little Rock where SPC had been initi- ated. Kindy testified that the Little Rock quality control man- ager, Honeycutt, had devised and implemented SPC training for Little Rock employees in 1985. Honeycutt later trans- ferred to Malvern and was terminated with Connor and Key. Honeycutt transferred to Malvern for the purpose of institut- ing SPC training there after resumption of operations by PI. At one point in Bakr’s testimony, he indicated that he had dealt more with Watson than he did with Nowak. He identi- fied documented suggestions which which he attributed to Watson, and he credited Watson with suggesting the concept of the work cell although he attributed suggestions regarding the identity and impact of the new product mix and machine layout to both Nowak and Watson, which Bakr testified had occurred at their September 22 meeting. 699 PRECISION INDUSTRIES Although Bakr denied having had received any explicit unlawful discriminatory instructions nor having had such in- tent himself, he failed to testify that Alford or Gaddy charged him with the responsibility of devising tests for the purpose of specifically identifying SPC capabilities of job applicants or that either of them had made any reference to Dr. Deming or work cells. He testified that the idea that the new product mix of custom work would so drastically change old employee work skills by the addition of ex- tremely more complicated castings under an SPC process foreign to virtually all UDC employees, were implanted dur- ing conversations with Nowak and Watson. He testified that suggestions of both managers were incorporated into his test- ing recommendations. He admitted that many of his rec- ommendations for testing had been limited to certain types of job classifications but, with his agreement, were expanded to include other unrelated classifications based on Nowak’s urgings that there would be greater job rotation under PI than UDC. However, he admitted in cross-examination, as a Re- spondent witness, that it was Watson who told him that there had been a limited amount of SPC applied at Malvern in a ‘‘hit or miss’’ manner but that it had not been ‘‘widely ap- plied’’ throughout the plant. He testified, without corrobora- tion, that Watson told him that although some parts had been subjected to the charting, prognostication and control proc- ess, quality problems had been experienced in the Chrysler work. The General Counsel elicited employee testimony, in part corroborated by Watson, which disclosed that SPC functions performed at Malvern under PI are virtually the same as those which had been performed on a more limited basis under UDC, albeit the phrase ‘‘SPC’’ may not have been recognized by the employees. Nowak, as a 611(c) witness, admitted that SPC had not been new to UDC employees. He contradicted employee testimony only to the extent that he claimed that under UDC when the machine operator identi- fied a trend and/or nature of the problem, the UDC operator did not assume responsibility to shut down the process on his own discretion as under PI, but rather the UDC operator no- tified a supervisor to do so. Under further questioning, Nowak admitted that when the UDC operator concluded that a machine was not functioning properly, he would indeed ex- ercise his judgment to shut it down and thereafter to notify his supervisor. Nowak made no reference to UDC employee quality prob- lems or adaptability in the SPC process or otherwise. He rather admitted the UDC employees’ competency within the framework of the type of work to which they had been ac- customed and half of which was custom die casting. Al- though he emphasized the basic communication skills, basic mathematic and charting ability, and adaptability required of employees performing SPC, other than his foregoing alleged remarks to Bakr, Nowak cited no relevant SPC problems of UDC employees to Bakr nor in his testimony. There is no evidence that Nowak at any time expressed doubts to Alford or Bakr as to the UDC Malvern employees to adapt to the SPC process. His testimony is silent as to the Deming philos- ophy. It next behooves us to examine Watson’s testimony as a 611(c) witness and as a Respondent witness to verify and identify his representations to Bakr regarding the UDC em- ployees and his participation in the screening process attrib- uted to him by Alford, Nowak, and Bakr. 7. PI motivation according to Watson David Watson had commenced employment at UDC Mal- vern as an industrial engineer in October 1986. He reported directly to Nowak. It was his responsibility to set the produc- tion performance standards of the UDC Malvern employees, whom he conceded routinely met or exceeded them. He testi- fied that UDC employees had performed work on a variety of custom products which, contrary to other Respondent tes- timony, involved use of slides, cores, and ejector pins. He concluded that in the performance of those duties, the UDC employees were required to adapt to new tooling for each custom product, and that involved a new casting die and a whole new machine package with new ‘‘flutters,’’ cores, and ejector pins, for which use and installation they had to be re- trained. Such jobs included brass die casting which, although substantial at one time, was being phased out at and after the acquisition because of a decline in brass sales market. According to Thigpen, there had been a high turnover of UDC custom work. If his testimony is credible, that would mean that the UDC employees had been more adaptable than even Watson gave them credit for possessing. Watson identified a variety of custom products produced at one time or other by the UDC or its predecessor employ- ees, a significant number of which continued in production by PI. He described a Chrysler job acquired by Hoover where operators took readings, plotted, and charted graphs with ‘‘standard’’ SPC charts calculated mathematically and determined trends with the use of a gauge. He identified the Indiana General Motors Corporation job for 1980 to 1984 as an SPC job. He testified that there were others, of which he could not recall the names, which ran from 5 to 10 years. Employee testimony identified a variety of other SPC jobs. Watson admitted that some employees were very good at their jobs, of which certain jobs, such as the trim press, re- quired certain employee qualifications. He admitted that UDC’s policy was to employ the best employee for any par- ticular job. He admitted that UDC secondary employees had been rotated ‘‘to a point’’ and that employee job transfers under collective-bargaining job bidding procedure required that the transferee must meet the required job standard. Although Respondent characterizes Pilcher’s grievance ac- tivity descriptions as generalized, Watson, like Nowak, ad- mitted that employee grievances were filed and actively pur- sued by the Union. Other employee testimony corroborates Pilcher with documentation of recorded union notes. Watson referred to grievances which arose out of production stand- ards that he set and which resulted on occasions in the reset- ting of work standards. Watson’s self-description of his role in the development and application of the PI screening and testing procedures raises the image of an extremely reluctant, detached partici- pant in a project that he perceived to be distasteful. His de- meanor of a 611(c) witness was that of uncertainty, hesi- tancy, and evasiveness. He took the lead on Respondent counsel’s objections and gave no impression of candid spon- taneity or reliability of recollective ability. He testified that although he is an industrial engineer, he has had no education in industrial psychology and does not and did not consider himself certified or competent to design and administer employee job applicant tests nor to determine the scoring of tests. In his opinion, no test devised by PI rep- licated an actual job function at PI on a straight duplication 700 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD comparison. This, of course, is compatible with Bakr’s goal to obtain a ‘‘level playing field’’ based on a more generic test process. Watson testified, ‘‘I am not a testing person.’’ He explained ‘‘I believe in testing . . . I just didn’t like this situation.’’ Watson testified that he was ‘‘pushed’’ into doing the scoring. He quickly added that ‘‘pushed’’ was perhaps ‘‘the wrong word.’’ He testified that he did not know why he did not ask Bakr to determine the scoring. After extensive probing in 611(c) examination, Watson testified that he had too many friends among the UDC applicants who had been eliminated by the tests and that their failure hurt him. He ad- mitted that he had raised his concern to Nowak but he ‘‘basi- cally got no response [and] it was business as usual.’’ He also admitted that in essence he asked that he ‘‘prefer not to do this.’’ He testified that he was not qualified to set the pass-failure scores and that ‘‘in most cases I dumped some of those back on Nowak.’’ Watson testified that he antici- pated in advance that UDC employees would be eliminated and he would be blamed ‘‘by the pure fact I was there.’’ Thus, at least, Watson implied that he expected in advance a high failure rate to be effectuated by the testing process contrary to testimony of Alford, Gaddy, and Nowak that they either assumed all the UDC employees, or a vast proportion, would pass the test because they had inherent advantages. In his testimony as Respondent’s witness, Watson had by then been promoted from his position as PI supervisory in- dustrial engineer to Nowak’s successor as PI vice president of operations at Malvern. His demeanor did not change even in direct examination when he appeared to be puzzled, hesi- tant, and unsure of the responses that Respondent counsel sought to be elicited. In an attempt to rehabilitate his prior testimony, Watson weakly asserted that he is ‘‘all for edu- cation and tests.’’ He explained that he did not want to en- gage in the testing process because of adverse employee re- action and that he ‘‘didn’t have the time.’’ He again testified, ‘‘I was pushed into doing tests.’’ After a hesitation and a glance at Respondent counsel, he modified that statement by adding ‘‘or chosen.’’ In cross-examination, he denied that he had asked to get out of the testing assignment because the high failure rate depressed him but, rather, claimed that his testing involvement was limited to a time after the hiring started and that when he got out of it, he did not know the percentage of UDC employees hired or rejected. This is con- trary to Bakr’s testimony and Watson’s own admissions of his participation in setting the pass-failure scores which was done after the first 200 employees were tested, including UDC applicants. After some further persistent cross-examina- tion and evasion, he admitted: ‘‘[Y]eah, I thought there were some good workers that weren’t hired.’’ Kindy testified that both he and Connor were surprised at the high failure rate of the Little Rock employee applicants who were screened at Malvern. Kindy, whose judgment as a manager was highly valued by Alford, testified that in his opinion, all but two of the Little Rock employees were good workers, all of whom he had assumed had good dexterity and communication skills. Watson testified that he did not confront Nowak or Bakr over the specifics of hiring but that he tried to stay out of it ‘‘if I could.’’ In his 611(c) testimony, Watson sought to minimize his participation in the test formulation and scoring process. He was vague, imprecise, and evasive when exam- ined on this topic. He, neither then nor in later testimony for Respondent, corroborated Nowak that Bakr prevented the further lowering of the PTI passing score. He testified that ‘‘all’’ of the scoring was done at the same time. As to some scores, he first testified they were ‘‘probably’’ devised by Bakr, his students and himself. As to other scores, he testified that he ‘‘probably’’ devised them with Bakr’s students, and he did not ‘‘recall’’ Nowak’s participa- tion but Bakr was not involved. Then he testified that he probably discussed scoring of some tests with Kratz and that ‘‘maybe’’ Nowak, the students and himself did devise some scoring. Watson did not deny that the ultimate time limit and pen- alty dexterity pass-failure scores were determined by him as Bakr testified. He admitted that Bakr had recommended that an actual job function test be used but that it was basically his, Watson’s, decision to reject such test in favor of the more abstract tests devised. Watson admitted that he enlarged and added to the dexterity failure factors originally rec- ommended by Bakr. When asked who set the cutoff scores for the combined dexterity tests, Watson responded to coun- sel with silence. Then, after hesitation, he answered ‘‘I’m not sure,’’ but finally Watson admitted that he had some ‘‘input’’ and was ‘‘somewhat involved.’’ He was unsure of Bakr’s input. Bakr’s testimony placed greater emphasis on Watson as the one who set those cutoff scores, particularly the time limits. When he was reminded of it, Watson agreed he had been the ‘‘second in command’’ and actually should have known more about the dexterity tests than did Nowak but he did not know how the 6-minute time limit was arrived at. He did not know with any certainty how the NTMA cutoffs were arrived at, particularly why it was doubled in combination with the electrical test score which adversely affected, by a few points, the hiring of UDC maintenance employees, including Union President Pilcher. He testified that he was simply told to weigh it in that manner and he assumed that it was de- cided on by Bakr or Nowak, or both. Bakr testified that he did not recommend cutoff scores for the dexterity, electrical, or NTMA tests but that he agreed with Watson’s time limit determinations after reading ‘‘the spread of numbers’’ of the first group scored as charted by Watson. Neither Nowak nor Watson testified in contradiction of Bakr as to how it was decided to incorporate physical exami- nations, including back X-rays, into the testing process. Ac- cording to Bakr, it had been his expressed intention to devise a practical, objective test limited only to material handlers that would require some physical effort by the employee, comparable to that actually required in their specific job function. He testified that pursuant to discussions with Nowak and Watson, he agreed to abandon such test in favor of medical physical examinations and back X-rays rec- ommended by Nowak for all employee classifications on Nowak’s representation that there would be universality of job rotation. Nowak’s testimonial description of the duties of PI material handlers excludes rotation with other classifica- tions. Watson testified that he had access to performance data of UDC employees but that he was not sure who de- cided not to use it for job applicant evaluation purposes. Bakr testified that he based his conclusion that such data was contaminated after consultation with Watson. However, Wat- 701 PRECISION INDUSTRIES son recalled no discussion at all with Bakr about the accu- racy or availability of UDC employee performance records. An attempt was made, during Watson’s examination as a Respondent witness, to mitigate his 611(c) admissions as to the successful work history of UDC Malvern employees. Thus he testified that UDC ‘‘lost’’ the Chrysler contract and some Ford-Lincoln work. As to the latter, he testified, ‘‘we never really satisfied them.’’ Even in direct examination, he could not explain why UDC was unable to keep to the di- mensions required, i.e., was it due to employee inability or to the quality of their tools, machinery, materials, and/or other factors? He testified that the Chrysler Quality award had been issued to UDC for that same customer and that it had required use of SPC. When asked to compare SPC at UDC with PI, Watson an- swered in general terms that SPC had been applied at UDC in a ‘‘smaller percentage’’ whereas at PI ‘‘most machines have variable charting.’’ Then, after prodding by Respondent counsel, he testified that ‘‘all’’ PI parts are SPC processed. When examined by Respondent counsel, he seemed visibly confused in trying to explain the differences with respect to PI machine-mounted, shot count monitors, and the verifica- tion of counts which already existed under UDC. Nowhere did he corroborate Nowak with respect to the alleged dif- ferences between UDC and PI operators’ discretion to shut down the process. That is the extent of his differentiation as to SPC under both entities although he did testify as to the larger dies now at Malvern. However, according to him, size and weight of the casting are not necessarily the significant factors. Rather, it is whether the size means, as it does under PI, complexity in many products which requires a slower, more careful, methodical operation. As Thigpen pointed out, smaller but more numerous parts such as the UDC handwheels, although light in casting, required speed and op- erator hustling. Clearly, it is a matter of debate whether quick, constant, repetitive bodily movements for light weight castings is ‘‘easier’’ than slower but more methodical move- ments requiring closer inspection with somewhat heavier castings. Obviously, it depends on the experience as well as inherent ability and subjective preferences of the operator. Alford admitted that UDC had produced some complicated custom work. Thigpen and Nowak were inconsistent in their testimonial evaluations of the difference in the weight of castings pro- duced by UDC and PI. It was finally conceded by Nowak that the new custom work at Malvern involved, on the aver- age, castings to a very great extent consist of only a few more pounds and which were processed at a slower pace. Thigpen admitted that UDC often produced much larger and heavier castings than the proprietary handwheels which in ac- tuality was a single casting of a multiple of handwheels. Thigpen further admitted that PI, in turn, produced many custom castings that were extremely light, i.e., under 1 pound in weight or 2 to 3 pounds on a set. Thigpen’s testi- monial description of the new custom work acquired by PI at Malvern was flawed by its frequent inconsistency with documentary and other evidence. In cross-examination, Watson admitted that experience aids a die caster in the job function of inspecting a casting for defects. He admitted further that experience, overall, is the best indicator of job performance but it was not included as relevant in the testing process devised by Bakr, Nowak, and himself. He admitted that there may have been innumer- able reasons why the UDC employees were unable to main- tain Chrysler’s dimensions and that it was possible that the Ford-Lincoln contract was eliminated because of design change. He thus contradicted Thigpen’s testimony that the obvious inference was lack of employee ability. 8. Summary of PI motivational testimony of Bakr, Nowak, and Watson Reviewing the testimony of Nowak, Watson, and Bakr, we are left with a contradictory, confusing, improbable, incon- sistency-ridden account of how, when, and why a screening, testing, and test score determination process was developed by these three individuals, none of whom have had any expe- rience in the development and application of tests for hiring employees for the functions of aluminum die casting. Dr. Bakr admitted that not only had he never constructed a screening or testing hiring procedure for any other die cast operation, but the only tests he ever constructed for employ- ees engaged in some sort of production process were for that limited purpose of employee training, not hiring. Thus he was particularly dependent on Nowak and Watson. In light of Bakr’s actual experience, it is more reasonable to have hired him for incumbent employee retraining than for devel- oping an open field hiring-screening process, unless the deci- sion to develop a screening process arose unexpectedly after- ward because of a factor irrelevant to his hiring. Not only was PI’s screening-testing procedure devised under the foregoing confusing circumstances, but it was done so with extreme haste no matter whose testimony one looks at. Nowak’s testimony, of course, describes an almost impos- sible alacrity. The screening process allegedly developed by Nowak, Watson, and/or Bakr (depending on which witness is credited) was, in turn, uncritically embraced by Alford and Gaddy and immediately implemented. Alford admitted that screening-testing procedures are not projects to be engaged in without some compelling necessity, i.e., it was not a pro forma step in resuming the operation and getting a work force on the scene. As Thigpen testified, business sense re- quires that such screening-testing proposals must be critically evaluated. He testified that it would have made business sense to ‘‘scrutinize’’ Bakr’s recommendations. There was no evidence that any preapplication test validation analysis or even scrutiny by Alford, Gaddy, and Keenan. Nowak testi- fied that he quickly perused Bakr’s proposed tests, which he considered ‘‘fair and objective,’’ subject to his and Watson’s modifications. No consideration was given by Gaddy nor ap- parently by anyone else, except Watson, Kindy, and Connor, to the extremely high failure rate. There was no investigation into or analysis of whether the screening process was in fact providing the ‘‘best’’ workers. By virtue of the higher pass- ing rate of former UDC employees, Nowak’s uncertainty as to how their adaptability compared to the general public should have been answered, i.e., there was a higher statistical chance that they, in fact, were more adaptable because of their admitted shorter learning curve. According to some of the testimony, the screening process was allegedly devised by Respondent to obtain the best pos- sible employees. The way the tests were implemented, how- ever, was that applicants with the highest scores were not necessarily hired. Conceivably, far fewer UDC employees might have been hired. Respondent recognized that it needed 702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD some former UDC employees to resume needed production. Respondent witnesses explained that they, therefore, first processed the UDC employees. But in processing the UDC employees first, Respondent’s agents were able, at that phase in that processing, to fix and effectuate its screening and test- ing criteria at a point where it could control the ratio of old UDC employees to an almost infinite known supply of non- former employees, which ultimately exceeded 1000 persons. It was necessary, of course, that the ratio be set at a point where enough of the old employees were hired to train and get operative the new inexperienced workers. It is critical to the resolution of the issues involved here as to whether Respondent, in setting the pass-fail criteria which effectuated the hiring ratio mix, was motivated by nondiscriminatory business reasons or whether it was moti- vated to hire only a minority of those former employees, as was deemed necessary to carry on business, for the purpose of avoiding recognition and bargaining with the Union. To that end, the testimony of Respondent’s witnesses Nowak, Watson, and Bakr must be analyzed. It is irrelevant whether those tests were good, bad, or poor tests as judged by the criteria of industrial psychology. The professional com- petency of Dr. Bakr is also not in issue although Respond- ent’s perceptions of his experience and abilities may have some relevance as to why he was chosen for a task of which he had no past experience. Whether or not the tests devised were job related is not solely determinative except to the ex- tent that aberrational, unreasonable, irrational, or false factors in the explanation of their creation and/or implementation raise inferences of pretextual and unlawful motivation. More- over, the implementation of a nonjob-related test may be evi- dence of an intent to construct an employment hurdle for nonbusiness reasons. In the midst of all the contradictions and inconsistencies in the testimony of Nowak, Watson, and Bakr as to the concoction and implementation of the screen- ing and testing process, there is of equal significance no co- gent, rational explanation as to why the pass-failure scores were set at the points which effectuated the low hiring ratio of former UDC employees and aggravated the cost and time delays necessitated in further testing of the almost inexhaust- ible supply of non-UDC applicants. What Bakr, Nowak, and Watson have proffered as explanations, to the extent they each may or may not have done so, is that tests and scores were determined on according to their arbitrary, subjective judgment as to what was appropriate. E. The Hiring Process The General Counsel’s theory of unlawful motivation of the very imposition of a hiring screening-testing process is not necessarily dependent on whether that process is inher- ently discriminatory with respect to union membership nor with respect to prior UDC employment. Indeed, the prior UDC-Malvern employees were proportionally more success- ful surviving that process. The General Counsel’s theory of unlawfully motivated screening process inception is also not dependent on whether the process was discriminatorily ad- ministered, although evidence of such would enhance the evidence of discriminatory motivation for the decision to make the process a precondition of employment. The General Counsel’s theory of unlawfully motivated screening-testing process is based on the premise that the screening process was intended to, and did effectuate, an impediment or control valve by which the hiring flow of former UDC employees could be maintained at a minority level of total employees hired. The hiring process is nonetheless unlawful if the screening procedures were imposed merely in the hope that, even if untampered within its application, the high failure rate would be high enough to obtain the desired discrimina- tory effect. This is so, argues the General Counsel, because the process itself would not even have been instituted had it not been for prior union representation of the incumbent em- ployees. An examination of the more salient features of Re- spondent’s Malvern plant hiring procedures discloses that it did, in fact, result in an extremely high failure rate, i.e., it effectively maintained the hiring of former UDC employees to a minority level. 1. The application process After public newspaper announcements which solicited job applications for Malvern plant openings, Plant Manager Nowak testified that on the shop floor he discussed with in- cumbent UDC employees the fact that they would have to file written job applications along with the general public as a necessary first step if they wanted a job at the Malvern plant. From October 13 through 15, written applications were obtained, filled out, and submitted at the Malvern Commu- nity Center, apparently located in a local bank in Malvern (and here referred to as the bank). The UDC employees were given no deference with respect to the general public except for some time off on Friday granted by Nowak. Notices were posted at the bank which listed the classifica- tions of jobs available and the corresponding wage rates. The initial acceptance of applications was closed as of the end of business, Saturday, October 15. Of a total 621 applications received, about 550 were for bargaining unit classifications. In is stipulated that except for Vance Wested, 84 of the former UDC unit employees who were employed by UDC on October 14, 1988, filed bargaining unit classification applica- tions. The parties agreed to litigate whether or not Wested did file an application, the Respondent contending that it had no record of such. Uncontroverted, credible testimonial evi- dence established that the 9-1/2 year tenured UDC lathe op- erator and die cast operator did, in fact file an application which, for no accountable reason, was not acknowledged by Respondent. The record reveals that about 103 former UDC employees filed applications. Apparently, for public policy reasons, the General Counsel is not alleging as discriminatees former UDC employees who failed drug abuse tests arranged by PI. The details of the drug abuse testing and how many persons failed is not disclosed. The application form was 19 pages in length and was di- vided into 3 sections. The first eight-page section contained the applicant’s name, address, education, work history, and necessary authorizations. The second five-page section con- tained a medical history questionnaire and release forms. The third six-page section consisted of a general questionnaire which elicited essay type answers. A similar process took place at Little Rock at a local motel rented room under the aegis of Little Rock Plant Man- ager Roger Connor. Unlike the Malvern procedure, Connor was given complete discretion in the Little Rock plant hiring procedure. No tests or physical exams of any kind were used and Connor simply hired whom he wanted, which was vir- tually all of the former Little Rock UDC salaried and hourly 703 PRECISION INDUSTRIES rated employees except for a few he considered personally undesirable. Connor testified that he did so without review- ing the content of the applications except to determine the identity of the applicant. The Malvern job applications were first scrutinized by those of the former UDC Malvern management retained by Alford, i.e., Personnel Manager Margie Kratz, Industrial En- gineer David Watson, and Plant Manager Michael Nowak, the latter two who helped Dr. Bakr devise and implement the PI hiring procedures. Alford initially reviewed the UDC personnel files of former UDC employee applicants and, by notation, flagged them for subsequent review by Kratz for such negative fac- tors as attendance, discipline, and medical limitation. No no- tations were made of equivalent positive factors. Kratz testi- fied that she reviewed the vast preponderance of those 621 applications. She testified that she had been authorized to de- cide on the exclusion of applicants in this first phase of the hiring process according to criteria set forth by Nowak and/or Alford. She denied that there had been any anti-UDC employee or antiunion motivation authorized or discussed. However, she testified that the criteria she was instructed to utilize were negative factors, i.e., her function was not to as- certain the identity of desirable employees nor to ascertain their commendable qualities. Kratz’ function was that of a screening agent who applied the screening-out criteria. Im- posed on Kratz, in addition to that flagged by Alford above, were the following criteria. The application, including medi- cal authorizations and releases, must be complete. She claimed that she and Nowak utilized some judgement as to whether an answer was in effect given, or a good-faith effort had been made despite apparent incompleteness. She testified that there was no fixed objective criteria to guide her judg- ment of ‘‘completeness.’’ However, Nowak testified that completeness was required and he referred to no such discre- tion. Another negative criterion charged to Kratz was the entry of a wage rate in excess of that posted for the job. Ex- cept, arguably, for posted wage rates, employees were given no indications of intended changes in conditions of employ- ment that existed under UDC. Kratz testified that on Sunday, October 16, those 621 ap- plications were reviewed and sorted into piles according to the job applied for, and that the in-depth reviews continued on Sunday or Monday. Nowak reviewed only a few groups, among which were included the maintenance classifications. Kratz testified that the UDC employee applications were not segregated as such but, because they were considered to have job-related experience, they were among the very first to be reviewed. As noted elsewhere, Nowak and Alford recognized the need for the expertise of the UDC employees to resume production as quickly as possible. Thus, if they passed the screening process, they were hired before any further higher scoring applicants were reviewed. Kratz testified that when she saw that no job was available for the first position listed as desired by the job applicant, that file was set aside and returned to as a source only for positions that had not been filled. She testified that she arbitrarily decided not to con- sider the second or third choice of positions listed by the ap- plicant. However, if an applicant listed only ‘‘any job,’’ she made the effort to consider the applicant for the job his record indicated was most qualified. Kratz testified that she arbitrarily decided to interpret the annotation, ‘‘or any rea- sonable rate,’’ to be a request for a higher than posted rate because the applicant’s past history indicated a higher wage rate had been earned by the applicant. The pace of employee hiring by PI is as follows: As of date ending Total number hired in- cluding former UDC employees Number of former UDC employees hired November 3, 1988 39 18 November 30 49 20 December 31 64 20 January 31, 1989 70 20 February 20 71 20 March 31 78 21 May 2 84 21 May 31 77 22 June 30 75 22 The initial screening by Kratz and Nowak was, for the most part, a precondition to further steps in processing, i.e., tests, physical examination, back X-rays, and final hiring. However, some testimony indicates that testing and applica- tion screening and/or physical examinations may have been done simultaneously. Eight UDC employees, one of whom had 25 years’ UDC trim press experience, failed the applica- tion screening process because they entered a higher wage rate than that posted. These include W. Clark, B. Dixson, R. Dyess, D. Eason, B. Honold, E. Mitchell, E. Nugent, and R. Turner. Several of those also indicated the alternative of ‘‘reasonable rate’’ or ‘‘compatible’’ rate. According to Kratz, 11 non-UDC applicants were rejected because they also listed an expected wage rate in excess of that posted for the job sought. Many other applicants were hired who failed to list any specific rates. Three UDC applicants, M. Jackson, H. G. Rowland, and B. White, were rejected because they failed to execute the medical release or because they failed to complete the medi- cal questionnaire. One of those applicants had been em- ployed by UDC for the preceding 11 years and thus the 10- year information sought by the form was already included in his UDC personnel file. One rejected applicant, T. Bryant who had been employed by UDC for 23 years as the lead maintenance electrician, failed to respond to the question, ‘‘what industry experience have you had?’’ The application indicated UDC employment for 1965 to 1988, and the applicant had a total of 40 years of maintenance experience. When Nowak was questioned as to such draconian treatment, he visibly smirked and re- sponded in a haughtily dismissive tone of voice that the ap- plicant was apparently not proud enough of his work experi- ence to be considered for employment. Nowak failed to tes- tify whether the thought might have occurred to him that the applicant also suffered from presuming the interviewer to ex- ercise common sense. Nowak exhibited a similar glib attitude in proffering justification of the elimination of UDC appli- cants for similar omissions or incompleteness, e.g., such omissions were evidence of a ‘‘lack of communication skills.’’ Nowak admitted that no UDC employee had ever been reprimanded for communication skill problems, and 704 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD there is no evidence that any employee communication prob- lem had ever existed. Six non-UDC applicants were hired despite comparable significant omissions in their applications; however in this factor as in all other categories, the non-UDC applicant had a higher failure ratio. Respondent contends that nine other UDC applicants were hired despite an arguable failure to complete the application. Because of medical limitations listed on their employment applications, seven UDC applicants were rejected, i.e., T. Hood, H. Jackson, J. Jackson, F. Lackey, D. Malone, V. Parish, and E. Ramsey. Some of these were rejected de- spite the lack of relationship between the medical limitation and the position applied for, despite the past demonstrated ability of the applicant to perform the job applied for or de- spite the chronological remoteness of the alleged medical in- cident. One applicant, F. D. Thomason, was rejected in part because he ‘‘would not work in dust or smoke,’’ whereas his application indicates just the opposite. However, that appli- cant was also rejected because of the desired wage rate he had entered. Thus 20 UDC applicants, many of high senior- ity, were rejected on the initial review of their applications, and they were not permitted to proceed to the testing stage of the screening process. Subsequent to the screening of the first group of applicants which, of course, included UDC em- ployees, Respondent utilized the services of an independent personnel service to screen job applicants in late December 1988. Thus the hiring process had to be continued beyond 1000 applicants. 2. Testing Bakr used a catalog that he had acquired from the Psycho- logical Corporation as a source for the Personnel Tests for Industry (PTI), which tested in part ‘‘verbal’’ ability and in part numerical ability. The tests are self-described there as follows: VERBAL TEST The Verbal Test is a five-minute test which utilizes a multiple-choice item approach. In each of the fifty items, the examinee selects one of four choices as the correct response to the question. Four item types are employed: synonyms, information, classification, and recognition of essentials. The questions are arranged in order of increasing difficulty; some are so easy that few applicants will fail them, others are difficult enough to challenge superior applicants for plant positions. NUMERICAL TEST The numerical test is a twenty-minute test in which the examinee is required to fill in the answer to each of the thirty problems. This item type has been em- ployed as being more realistic in evaluating numerical skills for plant jobs than is the multiple-choice ap- proach. The operations required for solving the prob- lems include addition, subtraction, multiplication, and division; the calculation of percentages; the measure- ment of length, area, and volume; the manipulation of decimals and fractions; and the like. As in the Verbal Test, the problems are presented in order of increasing difficulty, from very simple to fairly challenging. The tasks are similar to those the applicant would meet in industrial situations. The verbal portion of the test consists of 50 multiple choice definitions of words or nonrelationship of words and phrases, none of which directly relate to die casting, e.g., a horse’s withers. The numerical test contains 30 basic addition, subtraction, division, and multiplication problems, e.g., ‘‘Q. a circular path is to be placed over a 3’’ hole in a sheet of metal so that the patch extends 3/4’’ all around. The diameter of the path will be lll.’’ Despite the absence of justification in the accompanying manual, Bakr, amidst ongoing discussions with Nowak and Watson, decided to combine both scores and set a passing grade as described elsewhere in this decision. Despite Bakr’s contention that it is unlikely that a candidate, although failing the numerical test, could compensate by a very high score in the verbal ability test and thus pass with a combined score, the results show that 13 successful applicants had a very low PTI numerical ability score ranging from 1 to 9 points. Dr. Bakr next devised, on his own invention, a series of manual dexterity or hand-eye coordination tests which pur- portedly tested for speed and accuracy of hand or bodily movements. These included the ‘‘pegboard’’ test, i.e., inser- tion of equal sized short wood dowels into corresponding round holes in a flat wooden board; a sorting card test, i.e, segregating cards into piles according to the number of holes per card; and a paint test, i.e, the loading on and unloading from a ‘‘tree’’ of radial spokes, flat steel washers. The last such test was actually suggested by Nowak. It bears a very rough resemblance to the paint rack function where handwheels are hand mounted on a ‘‘tree’’ or a paint rack but with significant differences. It is clearly, and admitted by Watson, not to be an actual replication of the actual paint tree job function. Watson, who disclaimed any expertise in testing, was, according to Bakr, responsible for determining the cutoff scores for the dexterity tests by fixing the time limits and establishing penalty points for mistakes or fum- bles. As a supplement to these tests which were designed for the production employees, Bakr adopted professionally de- vised and published tests for the more skilled maintenance employees and toolroom employees, including tool and die makers. For these, he recommended the far more demanding National Tool and Machine Association (NTMA) battery of tests which at PI included the following tests: PTI verbal, machine shop mathematics problem solving, Bennett Me- chanical Comprehension Test, and Guilford-Zimmerman Ap- titude Reasoning problem-solving tests. At Nowak’s sugges- tion, an applied electricity test was also utilized for mainte- nance employees, which Nowak claimed he had drawn from an earlier applied electricity refresher course he had made optionally available to the UDC maintenance employees. Nowak rejected Bakr’s recommendation of an actual blue- print reading test for toolroom employees. The manual for the NTMA tests set forth a self-description as a ‘‘manual for the National Tooling and Machinery Asso- ciation Entry Employee Selection System.’’ Bakr testified that the NTMA tests were described there as appropriate for employees who desired to become machinists, toolmakers, 705 PRECISION INDUSTRIES tool and die makers, and mold makers. That test was a job placement test, not a hiring screening test. Bakr testified that he recommended its use for the PI classifications of die mak- ers, die repairmen, maintenance mechanics, maintenance technicians, die cast and trim setup, machine setup, and paint setup. (In fact, it was not given to the setup positions). He conceded that PI did not fill the die makers and maintenance technician positions because of a 1-year actual PI experience requirement. He admitted that the maintenance mechanics were tested even though that position is not listed in the NTMA manual as a classification of employee to be tested. Bakr testified that because PI had instituted what he con- sidered to be a very lengthy written application, the oral interview called for by the NTMA manual was ignored. As noted elsewhere, Nowak, Watson, and Bakr mutually dis- claimed responsibility for the determination of the cutoff scores for the NTMA tests. At one point Watson testified that he merely followed the NTMA recommendation, but then he testified that he made no such suggestion to follow NTMA recommendations. Furthermore, there is no clear ex- planation as to who decided or why it was decided to double the NTMA scores and add to that sum the applied electricity score to determine the cutoff score for maintenance employ- ees. Bakr said he had nothing to do with it. Nowak testified that Bakr and Watson were responsible. In cross-examination by counsel for the General Counsel, Watson testified that Nowak and Bakr ‘‘probably’’ determined the NTMA cutoff scores and that the doubling of the NTMA score for mainte- nance applicants was done pursuant to Nowak’s order. Wat- son testified that Nowak made the decision during a con- versation between Nowak and Bakr, which was attended pas- sively by Watson. He testified that he could not recall the rationale for that decision which he said Nowak formalized. In later cross-examination by union counsel, Watson dis- claimed knowledge of who decided to double the NTMA score. He assumed it was ‘‘somehow’’ decided by Bakr and Nowak. Watson could not explain why the passing score was set at 45 and not 43 or 40, or any other score. He admitted that the NTMA cutoff score eliminated qualified maintenance employees. Watson was questioned about the impact of a screening-testing process whereby only 2 of 8 to 10 former UDC maintenance employees survived. He testified that yes, he voiced concern mainly by saying to Nowak, ‘‘let me out of this.’’ He was asked about any conversation where the possibility was discussed of lowering the cutoff score just one point in order that two qualified maintenance employees might pass with a score of 44. Watson answered, ‘‘there weren’t any discussions, with me.’’ The implication is that there may have been such discussion but that his opinion was not actively addressed. One of those two scores belonged to Union President Pilcher. Another UDC maintenance appli- cant, C. Jordan, had a score of 42, i.e., NTMA 15 and ap- plied electricity 12. Pilcher’s 44 score consisted of NTMA 15 and applied electricity 14. In the absence of doubling the NTMA score, Pilcher would have attained a score of 29 whereas four non-UDC maintenance applicants who passed that phase of the tests achieved only 29 in two cases and 28 in two cases. The testimony of the General Counsel’s wit- nesses is uncontradicted as to the adverse impact on work flow of nonexperienced maintenance employees actually hired by PI. In addition to 20 UDC employees screened out by virtue of the application review process, another 27 were eliminated because of an inability to attain what Nowak, Watson, and/or Bakr (depending on which of whom is credited) determined was the passing score for these tests. Of those, 13 failed the manual dexterity tests which required a minimum completion time score of 6 minutes and a minimum error penalty score of 10. Some of those scores were very close and, as such, brings to mind the ambiguity of the origin of these cutoff scores discussed here. Bakr, for example, testified at one point that Watson merely decided on his own experience that 6 minutes was sufficient for a competent person to finish the test. Minutes Errors C. Baker 7.78 R. Ballentine 6.69 12 G. Bowman 5.82 12 W. Brooks 6.03 10 H. Burnett 6.29 (also failed PTI) T. Cotton 7.77 (also medical) E. L. Dial 6.11 K. Fain 10.38 M. Hill 6.84 (also PTI) D. Hilligoss 7.84 13 (also medical) V. Kelly 6.87 S. Lackey 7.75 S. McCollum 6.18 B. Stewart 8.43 14 (also PTI) K. Wallace 6.97 14 D. Womack 6.25 11 (also medical) The PTI passing score was ultimately set at 30 but, be- cause the UDC employees were given a 5-point bonus, they needed only 25. The PTI failures for UDC applicants were as follows: H. Burnett 23 (also dexterity) J. Henderson 10 M. Hill 23 (also dexterity) L. Jones 17 E. Ollison 19 A. J. Rogers 32 B. Stewart 31 (also dexterity) F. Turner 19 G. Zeigler 18 Although Respondent stipulated that the foregoing employ- ees were rejected for employment because of their failing scores, there is no explanation why Rogers was rejected de- spite his otherwise passing PTI score. Respondent points out that had not UDC employees been given a 5-point bonus, at least about six more non-UDC applicants would have been hired, i.e., the UDC-PTI failure rate would almost have dou- bled. There is no explanation why the bonus was set at 5 points rather than 3, 4, 6, 7, 8, etc. These toolroom and maintenance UDC Malvern applicant failures were stipulated to have been rejected for the follow- ing NTMA score which was 16 for toolroom classifications 706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 G.C. Exh. 160 is a list of scores contemporaneously compiled by Watson. It inexplicably lists a passing score of 16 for McWhorter. In his testimony, Watson was confused at first as to what constituted the passing score. passing and 45, combined with the applied electricity score (AE) for maintenance passing grades: G.T. Berryhill NTMA 15 C. Jordan NTMA & AE (15x2)+12=42 J. McWhorter NTMA 134 D. Pilcher NTMA+AE (15x2)+14=44 H. Zgleszewski NTMA 14 The toolroom classification survival rate was better for UDC applicants than that of the UDC maintenance applicants. About six passed. About eight non-UDC applicants were hired who attained scores which had disqualified UDC applicants, one of whom, V. Polivka, was hired into shipping and receiving with a dex- terity score of 7.44 and another, J. Yarborough, as a custo- dian with a PTI score of 18. UDC applicants, unlike non-UDC applicants, who passed the application review and testing process, did not yet face the physical examination and back x-ray as a final condition to hiring. Instead, their personnel files again were further scrutinized. Even those who failed some of the other tests were additionally rejected on further scrutiny of their medical history as revealed in their personnel files as, noted above with respect to T. Cotton, D. Hilligoss, and D. Womack. They were rejected for medical limitations for positions to which they did not apply. There, in addition to the 47 re- jected applicants up to this point, another 4 were rejected by Kratz because of this scrutiny. Gerald Gray was rejected by Kratz because of an old lifting restriction of weights about 50 pounds although he had been actively employed as a cus- todian as of the date of acquisition. Kratz rejected N. Greg- ory who applied for a paint racker position because of a past medical limitation as to two machine operator positions. Gregory had been a paint racker actively employed since 1966. Kratz rejected J. Hardy’s application for an automatic lathe operator position because of a personnel file medical limitation relating to certain setup work not within the sec- ondary classification for which she applied. Hardy had been actively employed on that automatic lathe for the 2 years preceding the acquisition. Hardy had listed supply room at- tendant as her fourth desired position. Kratz admitted that if Hardy had listed it as the first desired position, she would have been hired. Finally, Kratz rejected M. McCollum who had applied for the light machine operator job known as the ‘‘tapper.’’ McCollum had also performed a variety of other jobs but had a medical limitation for the unrelated job of paint racker and trim press operator. 3. Medical examination All of the UDC applicants who had successfully proceeded to the final screening process hurdle passed the physical ex- aminations to which they submitted except for eight who failed the last step of that examination, the back X-ray. These were: W. Burroughs L. McDougal G. Deimel A. Lowe M. Dial C. Westphall C. Diffee P. Wilson All were actively employed up to the October 14 closure. The General Counsel does not seek a reinstatement or back- pay remedy for Deimel, because of a history of disability by the Social Security Administration at the time of his applica- tion, but does seek any other monetary remedial order that might be granted, i.e., pension benefits. None of the medical information disclosed by way of those X-rays was known to Respondent prior to such disclosure by X-ray. In addition to the above-discussed 59 rejected Malvern plant UDC employees (excluding Wested), there are 2 al- leged discriminatees who had applied for PI tool and die maker positions and who had passed the NTMA tests, but who were never notified by Respondent to take a physical examination and were thus never hired. Both of these appli- cants were union officers and were two of seven UDC tool and die makers. By virtue of their test scores, they became available for employment as of October 26, 1988. PI initially hired two former UDC tool and die makers, W. Ritter on Oc- tober 26 and J. Selph on November 1, who passed the screening process. Kratz and Nowak are inconsistent as to PI’s need for additional tool and die makers. Although Nowak testified that Respondent PI subcontracted tool and die work, he admitted that it continued to solicit employment for these positions after October 26 and as of September 1990. A job order for tool and die makers was placed with the C & S Personnel Agency by PI on January 23, 1989. This impeaches Kratz’ testimony that PI had ceased search- ing for tool and die makers in the fall of 1988 and winter of 1989. No tool and die maker was hired until March 29, 1989, when former UDC tool and die maker L. Kisner was hired. 4. Testing evidence analysis It is clear from the foregoing review of the screening pro- cedure at Malvern as to how it was devised and how it was applied, that even disregarding the aspect of possible inherent discrimination against incumbent employees, it was a proc- ess, by its nature, reasonably expected to effectuate a high failure rate. The evidence that compels such conclusion, inter alia, includes the stringent draconian, sometimes arbitrary, application review process, the generality of the tests that were constructed that were calculated to effectuate a level playing field not directly related to actual die casting job functions, the arbitrariness of and manipulation of passing PTI scores after the tests were taken which enabled Respond- ent to arbitrarily control the ratio of UDC and non-UDC ap- plicants hired, the modification and expansiveness of the tests contributed by Nowak for the proffered reasons of a widespread allegedly expected job rotation system which did not occur for the job handler position for which Bakr limited his first recommendation, the similar arbitrary manipulation and application of NTMA and AE scores, the additional posttest scrutiny of personnel files of UDC applicants and the inexplicable failure to hire applicants who passed the tests, including two union officers (a third, the Union’s president, having been manipulated out of hiring) and the expectation and recognition, by at least Watson, that a high number of qualified persons were going to be screened out by these ar- bitrary standards. In view of my findings below, it is unnec- 707 PRECISION INDUSTRIES essary to evaluate whether the tests were actually discriminatorily constructed or applied. It is sufficient to find that they were calculated to be, and were in fact, applied as a high failure rate screening process which served as a con- trol valve for the percentage of former UDC employees hired by PI at Malvern plant. F. Conclusions 1. General Counsel’s burden of proof The Board and reviewing courts have recognized that in this sophisticated, complex industrialized society, it is often extremely difficult to ascertain motivational causation. The evidence of such is virtually within the control and fre- quently in the mind of the decision maker whose decisions adversely impact on lawfully protected interests. The prover- bial ‘‘smoking gun’’ is a rarity, and prosecutions more fre- quently are premised on circumstantial evidence on which in- ferences can be made. Accordingly, the Board, with higher Court approval, has determined on the evidentiary burden of proof as explicated in Wright Line, 251 NLRB 1083 (1980), and approved by the Supreme Court in Transportation Man- agement Corp., 462 U.S. 393 (1983). In that case, the Board addressed itself to the issue of mixed motivation, i.e., where, as is so often the situation, there exists evidence that a re- spondent employer was in part motivated by nondiscrim- inatory business motivations and, in part, by motivations dis- criminatory under the Act. The Board in that case held that, henceforth, in all such mixed motivation cases, it would place the burden on the General Counsel to come forward with evidence that was sufficient to demonstrate that at least, in part, the respondent was discriminatorily motivated. If the General Counsel meets that burden, the Board held, with subsequent Court approval, that the respondent must there- upon assume the burden of proving that regardless of the presence of unlawful motivation, it would have necessarily engaged in the same decisional conduct because of other lawful nondiscriminatory reasons. The Wright Line burden of proof on the General Counsel may be sustained with evi- dence short of direct evidence of motivation, i.e., inferential evidence arising from a variety of factors, i.e., union animus, timing, pretext, etc. Because the Board has adopted the Wright Line evi- dentiary rule with respect to mixed motivation cases, it did not preclude the possibility that the General Counsel could sustain his case by proving that the proffered alleged busi- ness reason for the adverse action was entirely false and pretextual, i.e., there was no mixed motivation at all. Thus it may be found that where the Respondent’s proffered non- discriminatory motivational explanation is so consummately false, even in the absence of direct evidence of knowledge of and animus toward the protected activity, the trier of fact is constrained to infer unlawful motivation. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966). The Board, however, often construes the record which dis- closes such falsity of proffered explanation as in the nature of a respondent having failed to meet its Wright Line burden of proof. However, the Board has recently made it clear that it adheres to the Shattuck Denn rationale as it has stated in a case of falsity of defense: The Board is entitled to infer that the Respondent’s true motive was unlawful, i.e., because of the [discriminatee’s] protected activity. See Williams Contracting, 309 NLRB 433 (1992). Disregarding for the moment the proffered direct evidence of unlawful motivation, and considering the Respondent’s witnesses’ testimony as 611(c) witnesses or otherwise, we are confronted with an astonishing body of inconsistences, contradictions, improbabilities, and aberrational and shifting explanations that are so gross as to permit no room for any conclusion other than that such testimony was the product of deliberate mendacity or a total malfunction of all of the Re- spondent witnesses’ recollective capacities. I conclude that such testimony necessarily compels the conclusion that Re- spondent’s true motivation for implementing any kind of a screening-testing-physical examination procedure at the Mal- vern plant in the fall of 1989 was unlawful, i.e., discrimina- tory under the Act. I conclude in the words of Nowak which he applied to some unsatisfactory incomplete employee job applications: ‘‘They must be hiding something.’’ I further find that the General Counsel has proven by virtue of such evidence that Respondent was possessed of no other non- discriminatory motivation and that all references thereto by Respondent’s agents are false and pretextual. Respondent argues in the brief that such interpretation of the General Counsel’s burden of proof which does not oblige it to prove the specific unlawful motivation, i.e., discrimina- tion because of the incumbent employees’ union representa- tion, is unconstitutional. Implicit in this argument is that, after all, there are various other unlawful discriminatory mo- tivations, i.e., age, sex, etc., of which an employer might have been possessed. Certainly, possible age discrimination motivations were not litigated in this proceeding although Respondent, while not claiming age discrimination as a de- fense, elicited in cross-examination of the General Counsel’s expert witness, Dr. Sylvia Joure, an effort by her to evaluate the adverse affect, peculiar to older persons of whom the Malvern UDC employees had a large proportion, of any test- ing. It is not necessary to address the constitutional issue in the Shattuck Denn analysis because I find alternatively that the General Counsel has proven by direct evidence of unlawful discriminatory motivation under the Act as Respondent’s sole motivation. I do so because the total failure of Respondent’s witnesses’ credibility impels me to credit the otherwise vul- nerable testimony of Connor and Key. As previously noted, their revenge-motivated bias is counterbalanced by Respond- ent’s witnesses’ economic interests. Connor and Key’s al- leged duplicitous business practices are matched by Alford and Gaddy’s duplicitous treatment of Connor, and Alford’s admissions to his own and Gaddy’s deception in business dealings. Connor and Key’s inconsistencies and contradic- tions do not run to the essential substances of which they claim transpired or to essentially what was said, as do the very basic contradiction of Respondent’s witnesses. The lat- ter are contradictions of substance. Also, as noted above, Nowak’s total lack of credibility and his failure to effectively contradict Connor or Key necessitates that I credit their testi- mony wherever it is inconsistent with his. Having concluded thus, I find Nowak to be such an unreliable witness that I credit any testimony of General Counsel’s witnesses that 708 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD may be inconsistent with Nowak. Having done so, I must credit Connor and Key’s account of their conversations with other Respondent agents, as it is in accord with the damaging statements made to them by Nowak. Where there are inconsistencies between Connor and Key as to dates, I credit Connor as the more reliable. With respect to the specific form or verbiage of Respondent agents’ com- munications to them, I find Connor to be the more reliable except as to the airplane conversation. Although Connor was probably more accurate as to the context of how Alford ex- plained to Key the Malvern screening process on that air trip, I find that in light of Connor’s testimony in cross-examina- tion which, in effect, affirmed his pretrial affidavit testimony, that Alford did go one step further and stated to Key that the purpose of the Malvern screening process was to avoid union recognition and bargaining. I, therefore, find that, in fact, there was an objective statement made by Alford to Key, which, in accurate interpretation, meant that the purpose of the Malvern screening procedure was to ‘‘get rid of the Union,’’ i.e., to avoid union representation. In addition to foregoing direct admission of unlawful moti- vation, Connor’s own individual conversations with Alford reveal admissions of unlawful motivation. Alford’s allusions to the relevance of the hiring ratio to the bargaining obliga- tion and his lack of any reference to product mix, statistical process control, UDC employees’ abilities, etc., were made in the context of conversations wherein Alford explained to Connor the need for the disruptive, expensive protracted hir- ing process at the Malvern plant. Subsequent so-called dis- claimers in the presence of others prefaced by ‘‘we didn’t say that,’’ ‘‘we will deny it,’’ etc., seem to have been clothed in the phraseology and manner of a disclaimer for public consumption accompanied by an implied ‘‘wink and nod.’’ They were not convincing to Connor, who persisted with his hectoring accusations, and they did not ring true to this trier of fact. Alford’s explanation to Connor never included those busi- ness motivations proffered at trial. I discredit Gaddy’s gener- alized testimony that he did so, as it contradicts not only Connor but Alford. Thus there is sufficient evidence on which to conclude that the proffered business reasons for the Malvern screening process were totally false and pretextual. However, assuming for argument’s sake that it has only been proven that unlawful discrimination was but one of a mixed motivational decision, we have no further to look than at Nowak’s admissions to Connor, and Alford’s joint expla- nation to Connor and Key, to settle the issue. According to Nowak, a running count of the hiring ratio was being taken and an intent had been fixed to arrive at a hiring ratio that could preclude bargaining. Neither Nowak nor Alford made any reference to Connor and Key of any business motivation for a screening process that had been reluctantly instituted and which, by the necessity of temporary closure, would jeopardize commitments to customers. The testimony of Con- nor, Key, and Alford clearly reveal that it had been the origi- nal intent of Keenan and Gaddy not to institute any screening process and not to have had any hiatus in operations. The only way to have avoided such hiatus was to have imme- diately employed the incumbent UDC Malvern plant employ- ees, as had been done in Little Rock, and to train, if nec- essary, and evaluate their performance as new work filtered in. The testimony of Connor and Key, understood in the con- text of Respondent’s witnesses own dissembling, necessarily coerces the conclusion that the proffered business reasons were totally false, pretextual, and contrived partly, even after the investigation of this case but prior to trial, with a hind- sight retroactive presentation of what might have been good, sound business reasons for screening the UDC Malvern em- ployees. It is unnecessary to decide which of the variations of Respondent’s explanations is correct, i.e., UDC employees were not pro forma reinstated because of Nowak’s disparage- ment of their and his and/or Baker’s subsequent rec- ommendation for testing, or that the screening, testing, and physical examinations were determined on well prior to any communications with the Malvern UDC plant union-animus ridden management regarding the capabilities of the UDC Malvern employees. Under the first variation, Respondent in- herits the union animus of Nowak, his concocted, contrived explanations of devising and applying the testing and his ma- nipulated scoring and the contradictions of Bakr and Watson. In the second variation, Respondent made the decision with- out any reasons for doing so, yet in the absence of any pol- icy, practice, or mind-set against pro forma hiring of incum- bent employees as had been intended at ‘‘I’’ and its others acquisitions. Either theory is damned by contradictions and evidence of a single unlawful motivation. I have made my finding that the General Counsel has proven with a preponderance of evidence that Respondent had only one unlawful motivation for the hiring of Malvern UDC employees conditioned on the survival of a hiring proc- ess. However, I will briefly analyze the evidence from the assumption that only a mixed motivation has been estab- lished to determine whether there is any basis upon which to find that Respondent would have, for nondiscriminatory business reasons, refused to continue the ongoing employ- ment of the UDC Malvern plant employees and to subject them to a screening-testing-medical examination process as a condition precedent to employment. 2. Respondent’s burden of proof Respondent has adduced a massive record, which was pre- sumably intended to rebut the General Counsel’s evidence that would support an inference of unlawful motivation by reason of the nature of the screening process itself and its application. This, of course, was the General Counsel’s alter- native theory of prosecution which proceeds on the assump- tion that direct evidence of unlawful motivation might fail, which it had not. Thus the General Counsel raised a barrage of evidence which it was claimed would disclose the aberra- tional or irrational, nonjob-related nature of the screening process on which an inference of unlawful motivation could be raised. Thus the General Counsel adduced the testimony of Industrial Psychologist Dr. Sylvia Joure of Memphis, Ten- nessee, for the purpose of establishing the nonjob relatedness and/or invalidity of the testing process constructed by Dr. Bakr. It is unnecessary for me to even consider her testimony nor to pass judgment on either her or Dr. Bakr’s competency in their respective disciplines, i.e., industrial psychology vis- a-vis industrial engineering as it relates to the hiring process. I do note that she did not testify, as the General Counsel as- serts, that those tests were in fact invalid. What she did tes- tify to was that there had been no showing of test validity under industrial psychology norms as she recognizes them. 709 PRECISION INDUSTRIES The Respondent therefore attempted to adduce evidence to establish that many of the things that it had done, alone or in conjunction with Dr. Bakr, were, in fact, reasonable or at least not unreasonable. Much of that evidence is unnecessary. Of course, it is not inherently unreasonable to use employ- ment application forms, nor to utilize a testing-screening pro- cedure even in a plant acquisition, nor to subject employees to physical examinations nor to refuse to employ persons be- cause of physical conditions ascertained before or after a physical examination. As I had reiterated so many times dur- ing the course of the trial in an attempt to curtail unnecessary litigation, the issue is motivation, i.e., motivation of Re- spondent within its own peculiar fact context. The Respondent’s perception of its obligation of Wright Line appears to be that if it can be shown that had Respond- ent not been unlawfully motivated, it could have been moti- vated for business reasons because such business reasons exited in the abstract and could have been employed. How- ever, it is not sufficient to demonstrate that an almost infinite variety of possible nondiscriminatory reasons existed and were available, in retrospect, to the Respondent. It must be shown and demonstrated with preponderant evidence that Re- spondent at the time actually was aware of those reasons and at the time actually acted because of those business reasons and would have acted the same way even in the absence of a partial unlawful motivation. Respondent is not permitted to escape culpability simply by demonstrating that other busi- ness reasons might have been available to Respondent at the time of the decisional process. A review of those alleged nondiscriminatory business reasons fails to establish with a preponderance of evidence that they would have, in the ab- sence of unlawful motivation, inevitably and necessarily led to the establishment of the Malvern plant screening process. The analysis of evidence of Respondent’s motivation above has shown that Respondent failed to establish with evidence of any credibility that it had decided on an obliga- tory screening process because of its planned changes in the product mix at the Malvern plant, because of some prepurchase policy decision to do so, because of information or doubts of the incumbent employees’ abilities, or because of the sole recommendation of an independent industrial en- gineer. Assuming that Nowak is credited (which he is not) that he expressed his opinions as to certain aspects of Malvern em- ployees’ lack of experience and that they somehow moti- vated, retroactively through some extrasensory process, the decision to screen-test-physically examine and X-ray job ap- plicants, there is a failure of proof that this process was con- structed for or did in fact achieve its various purported objec- tives, i.e., SPC competent workers, workers with a ‘‘short learning curve,’’ ‘‘the best workers’’ or the ‘‘best possible workers,’’ or ‘‘appropriate’’ workers, or ‘‘competent’’ work- ers. As noted above, there was no explicit discussion of SPC with Nowak prior to the acquisition. That process emerged from a testimonial fog much later on. There is no credible evidence that the tests were specifically designed for nor were able to identify specific SPC skills. There is a failure of evidence that the screening process overall actually identi- fied the ‘‘best possible workers’’ for custom aluminum die casting. There is abundant evidence that PI at Malvern ac- quired a somewhat higher ratio of custom die casting work, much of which resulted in a higher mix of heavy and/or multifaceted castings. But the acquisition of such work was gradual in nature and not entirely unique, and it was admit- ted by Thigpen that a very large proportion of it was attrib- utable to the Skil account which did not require detailed ma- chining of the casting. The evidence supports a finding that the screening and testing were reasonably expected to iden- tify persons with certain general mental and physical abili- ties. But the evidence does not establish that it necessarily identified the precise skills required for custom die castings or SPC, nor that it did so in such a manner that it did not screen out persons who, despite the lack of generalized quali- ties identified by the screening, were perfectly capable of being the best available custom aluminum die cast workers at Malvern, Arkansas, especially so because of past experi- ence. The Respondent adduced evidence of the reasonableness of its screening procedure to identify certain general attitudes and qualities of employees on which it would presume suc- cess in the SPC process. It failed to adduce evidence that the SPC process necessarily mandates or even suggests that an incumbent work force of an acquired business must be sub- jected to an open employment hiring process rather than be retained and retrained to achieve an overlayment of new skills on old employee skills demonstrated by experience as described by Respondent’s own expert, Warner Baxter. It is insufficient for Respondent to merely establish the retrospec- tive reasonableness of its hiring decisions. Assuming, which I do not find to be fact, that Nowak timely raised concerns about employee sanding abilities, the Respondent failed to demonstrate that the screening process addressed itself to that rather simplistic task. Moreover, Re- spondent failed to demonstrate what basis there was for Nowak’s conclusion that employees who had been doing one kind of sanding might not be able to do another simple kind of sanding, even assuming that it was cosmetic and required more care. In any event, Nowak’s credibility, like Alford, Gaddy, and Watson, was impeached, and his explanations are of no probative value in any event. With respect to medical screening and physical examina- tion and back X-rays, the evidence disclosed that it had been implemented as an integral part of an unlawfully motivated employment screening process, i.e., the employees of UDC would have simply been retained at their jobs to maintain on- going production needs as Respondent intended to do at ‘‘I’’ and which it did at its other acquisitions. Respondent failed to prove that it had any prepurchase business motivated pol- icy practice or mind-set to institute medical screening, phys- ical examinations, and back X-rays; assuming again that Nowak and Watson, to the extent they admit any involve- ment, are credible witnesses with respect to the subject of planned employee rotation of job function (which testimony I discredit) and its relevance to the screening-testing-physical examination process. There is a failure of evidence that the planned and actual rotation of employees was such as to necessitate the expan- siveness of the screening, testing, and physical examinations over the initial recommendations of Dr. Bakr. There had pre- viously been UDC job interchange and UDC cross-training, and the new work process described by Nowak, Watson, and/or Thigpen in their testimony fail to demonstrate the pur- ported universality of postacquisition job rotation. The phys- 710 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ical examinations and concomitant back X-rays were the re- sult of Nowak’s recommendation to expand on the very lim- ited recommendation of Dr. Bakr for a simple physical test for material handlers, whose job, he was told, would be sub- ject to rotation. There is a failure of credible evidence that such did in fact occur at PI. Thus the explanation for the idea of physical ability screening, physical examinations, and back X-rays were not proven to be the result of an objective consideration and discussion by the test constructors in rela- tion to known existence of actual physical disabilities. It was rather an integral part of hiring process which was instituted for unlawful motivation and was not shown to have been in- stituted for any other nondiscriminatory reason. As such, it was, therefore, discriminatorily motivated and would not have been instituted except for the fact that it was part of the discriminatorily motivated screening process. Had the physical screening, examination, and X-ray process not been employed, UDC applicants who had been actively employed by UDC up to closure would have been hired by PI, and it is a matter of conjecture whether any subsequently discov- ered physical problem would have interfered with their abil- ity to remain actively employed. Evidence of physical prob- lems of certain UDC applicants adduced by Respondent in consequence of an unlawfully motivated examination cannot retroactively support a decision made in ignorance of those conditions. I therefore find that the Respondent refused to hire those 62 former Malvern UDC employees because they had been represented by the Union, and their hiring by PI was feared to have necessitated recognition and bargaining with the Union, and thus violated Section 8(a)(1) and (3) of the Act as alleged in the amended complaint. 3. PI operations at Malvern as successor to UDC Although the Respondent adduced evidence of changes in work flow and product mix at the Malvern plant, its ex- pressed purpose for that proffer is directed to the justification of the need for employees of greater adaptability and skills which, in turn, purportedly warranted the in-depth screening- testing-medical examination process instituted by PI on its acquisition of the UDC Malvern plant. As noted elsewhere, I find those proffered justifications to have been false and pretextuous. The changes effectuated by PI, however, have another significance, assuming no change in employee com- plement. If those other changes are substantial enough, the nature of the employing industry would not be the same, and new conditions of employment would be such as to cause the employees to view their jobs as essentially altered, so as to impact their attitude toward continued union representation. NLRB v. Burns, 406 U.S. 2872 (1972); Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973); Love’s Barbeque Res- taurant, 245 NLRB 78 (1979), enfd. in relevant part sub nom. Kallman v. NLRB, 640 F.2d 1094 (9th Cir. 1981); U.S. Marine Corp., 293 NLRB 669 (1989), enfd. 916 F.2d 1183 (7th Cir. 1991); Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987). If the changes are not substantial and a majority of former employees were hired, or would have been hired but for discriminatory reasons, then the em- ploying industry remains the same and successor employer relationship exists under which arises the obligation to recog- nize and bargain with the predecessor employees’ designated collective-bargaining representative. Love’s Barbeque Res- taurant, supra; Shortway Suburban Lines, 286 NLRB 323 (1987), enfd. 862 F.2d 309 (3d Cir. 1988); State Distributing Co., 282 NLRB 1048 (1987). After the acquisition of the totality of UDC assets, PI re- sumed its production at Malvern as soon as a sufficient num- ber of employees survived the screening process. As found elsewhere, that resumption was delayed and production com- mitments were disrupted because of the inability of the hiring process to produce enough personnel. Furthermore, produc- tion was only possible even at that delayed rate because about 20 of the former 103 UDC employees managed to qualify. The employees hired worked for the same supervisors, quality control personnel and other salaried personnel and managers as had the UDC employees. They immediately worked in the same plant with the same machinery and tools and continued with the production necessary to satisfy UDC customers assumed by PI, with the exception of one account worth $146,000 in the period July 1, 1987, to October 14, 1988, which was transferred to the Pace Harrison plant. Pursuant to the preacquisition consultations with Industrial Engineer Dr. Bakr, the flow of work was altered by the rear- rangement and relocation of certain machines to effectuate greater expediency on the shop floor. In January and Feb- ruary, minor structural changes accommodated an expanded tool room and office space. PI continued on thereafter as UDC had, in the same or very similar basic production functions of aluminum die cast- ing. The same basic functions were carried on by die cast machine operators, tool and die makers, operators of trim presses, tappers, lathes and wheelabrators, painters, packers, inspectors, set up workers, furnace tenders, shopping and re- ceiving department workers, supply room workers, mainte- nance employees and custodians. As concluded elsewhere, the duties of PI employees witnessed an evolutionary and gradual change only to the extent that newer products were acquired, and the charting, graphing, and quality control functions of plantwide SPC were taught and applied. New equipment, including such production monitoring de- vices as the spectrograph, was also a matter of gradual acqui- sition through the spring and summer of 1989. As late as September 1990, Nowak testified that work flowing through the paint room remained 50-percent proprietary. As of that date, PI employees had run no part over 18 pounds, and the 18-pound part run was, itself, only a 2-month run of a light- ing fixture housing. The next heaviest part run was 10 pounds, but the overall average was 4 pounds of which, with excess metal or flash removal, amounted to 7–8 pounds and 2–3 pounds, respectively. Thus, neither the acquisition of new work nor the transfer of heavier die casting machine production from Little Rock in February 1989 dramatically affected the weight of castings processed in the Malvern plant. The small handwheels were not cast individually but, rather, were found in large sets of many handwheels con- nected by excess metal. Somewhat heavier new products of a more complicated, multifaceted nature than handwheels (but not totally different from some UDC custom work) re- quired a slower but more careful work effort, but the bodily movements, general hand-eye coordination, visual observa- tion, and mental judgmental functions were generically and essentially the same, albeit more demanding in some casting configurations according to testimonial admissions of Re- 711 PRECISION INDUSTRIES spondent witnesses, and testimony of employee witnesses whom I find more reliable than that of Respondent’s wit- nesses for reasons stated elsewhere in this decision. If modernization of plant, addition of more rigorous qual- ity control, and acquisition of more responsible, complicated but essentially the same general type of labor required prod- uct line can terminate a bargaining relationship in an other- wise successor employer of a majority of the same employ- ees, what would be the justification to presume a continued obligatory bargaining relationship in business or industries where the employer and employees remain the same but where such changes are ongoing constantly in a competitive industrialized society, e.g., the automobile and what is left of high tech and electronics industry? Compare Morton Devel- opment Corp., 299 NLRB 649 (1990), where a drastic change from an operation of a health care facility for a young population of retarded persons of hyperactive charac- teristics to a nursing home for sedentary, aged, often coma- tose persons, after a 4-month hiatus and physical changes in the building, was deemed insufficient to warrant withdrawal of recognition by the same owner-operator. There is no ra- tional basis to distinguish a successorship situation where such changes are gradually ongoing but where they are caused by a new ownership under the form of asset purchase rather than stock purchase. In the instant case, at what point after PI’s acquisition and continuation of the UDC business can it be said that there had been sufficient change in actual product mix and quality control processes that PI ceased to be a successor and/or the changes were so impactive that it could not be presumed that the employees desired union representation? The facts found here disclosed that PI would have continued in place the en- tire complement of former UDC employees had it not been for the fear that it might have had to recognize and bargain with the Union. PI would have, therefore, continued with the exact same operations of UDC, serving the same customers, until a subsequent time when new and/or more complicated product lines could be acquired. Thus PI would have become overnight UDC but with a different name, ownership, and top corporate management. No significant changes would have occurred until well after a majority or at least represent- ative complement of PI’s ultimate Malvern plant production and maintenance employees had been hired in late December and early January. Compare Aquabrom, Inc., 280 NLRB 1131, 1133 (1986), enfd. 855 F.2d 1174 (6th Cir. 1988). In any event, the difference in product mix and all other changes effectuated by PI did not change the eventual nature of the work performed, how it was performed, the general market served, the general nature of machines and tools used, nor were they of such a nature as to diminish the employees’ perspective that there was a ‘‘substantial continuity’’ be- tween UDC and PI. Capitol Steel & Iron Co., 299 NLRB 484 (1990). Respondent may not, by bootstrap argument, rely on job rotation or other unilateral changes in working conditions to support a conclusion that the employing industry has so sub- stantially changed to have disrupted the employee-union rela- tionship. The Supreme Court in Burns, supra, did observe that an otherwise successor employer is free to set initial wages and terms and conditions of employment on which it intends to offer those persons it ultimately hired, except where ‘‘it is perfectly clear that the new employer plans to retain all of the employees in the unit’’ and therefore must first consult with the employees’ bargaining representative before changing old wage rates and terms and conditions of employment. The Board holds, accordingly, that where the successor employer would have hired the predecessor’s em- ployees but for their representation by a union, it may not lawfully unilaterally set the initial terms on which it will hire those employees. Shortway Suburban Lines, supra; State Dis- tributing Co., supra; Love’s Barbeque Restaurant, supra; Sys- tems Management, 292 NLRB 1078 (1989), enfd. in relevant part but remanded as to the remedial order 901 F.2d 297 (3d Cir. 1990); Honda of Hayward, 307 NLRB 340 (1992). As found in this decision, Respondent would have hired all of the UDC discriminatees, except for unlawful discriminatory motivations, and did not clearly tell them in advance that they would be hired only on condition of their acceptance of predetermined changes in their conditions of employment. Accordingly, it would have had to notify and bargain with their collective-bargaining representative with respect to changes in wages, hours, and other preexisting terms and conditions of employment. On the facts in this record, I find that Respondent PI was a successor employer and, as such, was under the obligation to notify and bargain with the Union as to changes in wages, hours, terms, and conditions of employment. There is no dis- pute that Respondent unilaterally and without notice to or bargaining with the Union effectuated changes in those con- ditions of employment of the Malvern plant employees as al- leged in the complaint. It did so at a time when it was aware that the Union had represented UDC Malvern plant employ- ees up to the time of closure. Respondent may not now claim that the Union did not officially demand recognition. Its cal- culated effort to destroy the representational status of the Union by virtue of an unlawful hiring process rendered any such effort a futility. Moreover, but for the discriminatory hiring procedure, the Union’s presumption of majority status would have continued inasmuch as PI would have continued the employment of bargaining unit employees, whether active or temporarily laid off, including the 84 former employee ap- plicants who were stipulated to have been employed by UDC on October 14, 1988. Testimony as to 35 ‘‘active’’ employ- ees at closure is meaningless, and all doubts of hiring inten- tions must be resolved against Respondent. Love’s Barbeque Restaurant, supra; and Honda of Hayward, supra; State Dis- tribution Co., supra; Freemont Ford Sales, 289 NLRB 1290, 1295 (1988). Respondent’s reliance on Freemont is misplaced. There, the Board explicitly adopted the ‘‘but for’’ successorship analysis but went on to discuss an alternative ‘‘representative complement’’ theory of successorship relied on by the judge for whom the facts of the case found ‘‘problematic’’ suffi- cient continuity of employee complement. Accordingly, the judge specifically found that a ‘‘substantial and representa- tive complement’’ of employees existed on a certain date and that an ensuing obligation arose and was met by the labor organization to demand recognition. The instant case is gov- erned not by a ‘‘representative complement’’ theory of bar- gaining obligation but, rather, the ‘‘but for’’ theory adopted by the Board in Freemont, i.e., but for the unlawful discrimi- nation, a majority of UDC’s union-represented employees would have been employed without any hiatus and without any screening process on the immediate continuation of 712 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD UDC’s operations by PI in October 1988, and the bargaining obligation continued with the Union’s presumed majority sta- tus. Respondent’s PI’s business records reflect correspondence from a law firm representing it to the union attorney dated February 20, 1989. That letter alluded to the union attorney’s prior letter of February 7 questioning PI’s changes in the Malvern plant retirement income plan. It is recited there that PI disclaimed obligation to bargain with the Union concern- ing any conditions of employment at the Malvern plant. Thus PI recognized and understood prior union communication to be a demand for recognition and bargaining, which it re- fused. In any event, the union attorney, Deborah Jeon, by let- ter dated May 2, 1989, reiterated that demand. By both dates, Respondent maintained a ‘‘representative complement’’ but was still in the process of changing its product mix and evolving its SPC program. However, the Union was under no obligation to demand recognition because its majority status would have continued, and the burden was on Respondent to notify it and provide opportunity for negotiating changes in employment conditions. By failing to do so on the very first unilateral change, Respondent failed to recognize and bargain with the Union as employee bargaining agent and thus vio- lated Section 8(a)(1) and (5) of the Act. The undisputed evi- dence reveals that on the very first employment of employees in former bargaining positions, PI changed not only wage rates but also health and life insurance, pension benefit plans, job classifications, and subcontracted bargaining unit work while it struggled to attain a sufficient employee com- plement. 4. The Little Rock alleged discriminatees In February 1989, the Little Rock employees commenced filing job applications at the Malvern plant. Half of those 45–50 employees failed a drug abuse test. Apparently, for public policy reasons, the General Counsel alleges no drug abuse test-failed applicant as a discriminatee at either plant. Of the remaining applicants, between 5 and 7 qualified for transfer, only 3 actually transferred and 16 are alleged as discriminatees. The General Counsel’s theory of violation is that they, as innocent victims, suffered adversely by being subjected to the discriminatory Malvern hiring process as an act of concealment of unlawful motivation. The General Counsel cites Howard Johnson Co., 207 NLRB 1122, 1123 (1974); and Dawson Carbide Industries, 273 NLRB 382, 389 (1984), enfd. 782 F.2d 64 (6th Cir. 1986). The General Counsel’s theory assumes that those 16 Little Rock employees would have been hired at Malvern in the absence of the discriminatory hiring practice there. However, the finding here is that the former UDC Malvern plant em- ployees would have been hired intact on acquisition of UDC’s ongoing business but for the unlawful discriminatory motivation. The remedial order sought by the General Coun- sel of reinstatement of 62 UDC Malvern plant discriminatees precludes a remedial order for any Little Rock discrim- inatees. In the absence of the unlawful hiring procedure, not only would 84 former UDC Malvern plant employees, in- cluding 62 discriminatees, had been employed, either actively or on temporary layoff in February 1989, but also all other former UDC Malvern plant employees of a total of 103, who applied for jobs there but who were not alleged as discriminatees. In view of undisputed testimony and stipulations in the record that the Little Rock plant was closed for reasons not alleged to be discriminatory nor an act of concealment of discriminatory motivations, I cannot find that the nonemploy- ment of Little Rock employees at Malvern was not causally related to the unfair labor practices there. According, I find no merit to the Little Rock plant allegations in the amended complaint. CONCLUSIONS OF LAW 1. Respondent Pace Industries, d/b/a Precision Industries, Inc., Pace Industries, Inc., Pace Industries, Inc., d/b/a General Precision Tool & Die, Inc., Pace Industries, Inc., d/b/a Auto- matic Castings, Inc. is a single employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) is a labor organization within the meaning of Section 2(5) of the Act. 3. For 20 years or more prior to October 14, 1988, and at all times material, the Union has been and is the exclusive collective-bargaining representative by virtue of Section 9(b) of the Act for purposes of rates of pay, wages, hours of em- ployment, and other terms and conditions of employment for employees in the following appropriate unit: All production and maintenance employees, including leaders and truck drivers employed at Respondent’s Malvern, Arkansas plant, but excluding direct represent- atives of management, such as executives and super- intendents, office and clerical employees, engineers, timestudy men, draftsmen, laboratory employees, cafe- teria help, professional employees, timekeepers, guards, First Aid employees, foremen and other supervisory employees as defined in the Act. 4. By refusing on and after October 1988 to hire employ- ees formerly employed by Universal Die Casting, Inc. be- cause those employees were represented by the Union, and in order to avoid recognition of and bargaining with the Union, Respondent has violated Section 8(a)(1) and (3) of the Act. 5. By refusing on and after October 14, 1988, to recognize and bargain with the Union as the collective-bargaining rep- resentative of its employees employed in the aforesaid unit, Respondent has violated Section 8(a)(1) and (5) of the Act. 6. By on and after October 14, 1988, unilaterally changing the preexisting conditions of employment of its bargaining unit employees without prior notification to and bargaining with the Union, Respondent has violated Section 8(a)(1) and (5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Except as specifically found here, Respondent has not violated the Act as alleged in the amended complaint. THE REMEDY Having found that Respondent has engaged in certain un- fair labor practices in violation of Section 8(a)(1), (2), (3,) and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to ef- 713 PRECISION INDUSTRIES 5 If no exceptions are filed as provided by Sec. l02.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. l02.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. fectuate the purposes of the Act, of which the restoration of the status quo ante is essential. Cf. Freemont Ford, supra. I shall recommend that Respondent offer to the unit em- ployees formerly employed by Universal Die Casting, Inc., at Malvern, Arkansas, listed below, to whom it did not offer employment, immediate and full employment without preju- dice to their seniority and other rights previously enjoyed, discharging if necessary any employees hired in their place. Baker, Charline W. Jordan, Charles W. Ballentine, Ronnie T. Kelly, Velma M. Berryhill, G. Tom Lackey, Frances E. Berryhill, Marvin Lackey, Smitty Bowman, Gerald F. Lowe, Allen Brooks, Willie McCollum, Maude H. Burnett, Henry R. McCollum, Stella P. Burroughs, Willene McDougal, Larry D. Bryant, Tom H. McWhorter, Jackie L. Clark, William Malone, Dorothy J. Cotton, Treva R. Mitchell, Ernestine B. Dial, Elsie Lee Nugent, Elmer Dial, Marvin Ollison, Elaine Diffee, Carrol C. Parish, Verna E. Dixson, Bill B. Pilcher, Donald F. Dyess, Rita Ramsey, Elaine Eason, Doss A. Rogers, A. J. Fain, Kent Rowland, Harold G. Gray, Gerald E. Stewart, Buddy F. Gregory, Naydean C. Thomason, Franklin D. Hardy, Joy G. Turner, Floyd E. Henderson, Jimmie A. Turner, Rachel A. Hill, G. Dexter Wallace, Kathryn A. Hill, Maude Wedsted, Vance Hilligoss, Dick O. Westphall, Charles W. Honold, Brenda J. White, Pearl Hood, Theresa Wilson, Pat Jackson, Henry A. Womack, Dorothy G. Jackson, Jimmie F. Zeigler, George Jackson, Michael D. Zgleszewski, Henry Jones, Laura I shall further recommend that Respondent make whole the above-listed employee applicants for any loss of earnings and benefits in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and New Horizons for the Retarded, 283 NLRB 1173 (1987). I shall further order Respondent to give all unit employees written notice that it will recognize and bargain with the Union as the exclusive representative of em- ployees in the unit. I shall also order Respondent to remove from its records all references to its refusal to employ the ap- plicants listed above and notify each of them in writing that this has been done and the fact of their original nonhire will not be used against them in the future. I shall order Respondent to recognize and, on request, bar- gain with the Union as the exclusive representative of all its employees in the unit. I shall also order Respondent to re- scind, on the Union’s request, the unilateral changes in unit employees’ wages, hours, and terms and conditions of em- ployment implemented in October 1988 and subsequently, in- clusive of health and life insurance benefits, pension plan benefits, job classifications, and subcontracted bargaining unit work, to make all affected unit employees whole for losses they incurred, including George W. Deimel’s pension plan benefits, by virtue of its unilateral changes to their wages, fringe benefits, and other terms and conditions of em- ployment in accordance with Ogle Protection Service, 183 NLRB 682 (1970), with interest as prescribed in New Hori- zons for the Retarded, supra. Respondent shall remit all pay- ments it owes to the employee benefit funds and reimburse its employees in the manner set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661 F.2d 940 (9th Cir. 1981), for any expenses resulting from Respond- ent’s failure to make these payments. Any amounts that Re- spondent must pay into the benefit funds shall be determined in the manner set forth in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1970). In view of the widespread and egregious nature of Re- spondent’s conduct, I shall also include a broad cease-and- desist order. See Hickmont Foods, 242 NLRB 1357 (1979). On the above findings of fact and conclusions of law and on the entire record, I issue the following recommended5 ORDER The Respondent, Pace Industries, d/b/a Precision Indus- tries, Inc., Pace Industries, Inc., Pace Industries, Inc., d/b/a General Precision Tool & Die, Inc., Pace Industries, Inc., d/b/a Automatic Castings, Inc., a single employer, Malvern, Arkansas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to hire the former Universal Die Casting, Inc. employees of its Malvern, Arkansas plant, listed in subsection 2 below, in order to avoid recognition of and bargaining with their exclusive-collective bargaining rep- resentative. (b) Refusing to recognize and bargain in good faith with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) as the exclusive representative of the employees in the unit set forth below in subsection 2 below. (c) Unilaterally setting and changing terms and conditions of bargaining unit employees without prior notification to or bargaining with their exclusive bargaining representative. (d) In any other manner interfering with, restraining, or co- ercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act. (a) Offer, in writing, to the extent that it has not already done so, immediate and full reinstatement to all employee applicants named below to the the positions they held with the predecessor or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed while working for its predecessor, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them as described in the remedy sec- tion of this decision, discharging if necessary the persons hired into bargaining unit positions who had not previously worked in the Universal Die Casting, Inc. bargaining unit. 714 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 If 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.’’ With reinstatement offers, Respondent shall notify these indi- viduals that it will recognize and bargain with the Union as their exclusive representative. Baker, Charline W. Jordan, Charles W. Ballentine, Ronnie T. Kelly, Velma M. Berryhill, G. Tom Lackey, Frances E. Berryhill, Marvin Lackey, Smitty Bowman, Gerald F. Lowe, Allen Brooks, Willie McCollum, Maude H. Burnett, Henry R. McCollum, Stella P. Burroughs, Willene McDougal, Larry D. Bryant, Tom H. McWhorter, Jackie L. Clark, William Malone, Dorothy J. Cotton, Treva R. Mitchell, Ernestine B. Dial, Elsie Lee Nugent, Elmer Dial, Marvin Ollison, Elaine Diffee, Carrol C. Parish, Verna E. Dixson, Bill B. Pilcher, Donald F. Dyess, Rita Ramsey, Elaine Eason, Doss A. Rogers, A. J. Fain, Kent Rowland, Harold G. Gray, Gerald E. Stewart, Buddy F. Gregory, Naydean C. Thomason, Franklin D. Hardy, Joy G. Turner, Floyd E. Henderson, Jimmie A. Turner, Rachel A. Hill, G. Dexter Wallace, Kathryn A. Hill, Maude Wedsted, Vance Hilligoss, Dick O. Westphall, Charles W. Honold, Brenda J. White, Pearl Hood, Theresa Wilson, Pat Jackson, Henry A. Womack, Dorothy G. Jackson, Jimmie F. Zeigler, George Jackson, Michael D. Zgleszewski, Henry Jones, Laura (b) Remove from its files any reference to the unlawful re- fusal to hire the above-named unit employees, and notify these employees in writing that this has been done and that this unlawful conduct will not be used against them in any way. (c) On request, bargaining with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) as the exclusive representative of the employees in the following appropriate unit concern- ing terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement: All production and maintenance employees, including leaders and truck drivers employed at Respondent’s Malvern, Arkansas plant, but excluding direct represent- atives of management, such as executives and super- intendents, office and clerical employees, engineers, time-study men, draftsmen, laboratory employees, cafe- teria help, professional employees, timekeepers, guards, First Aid employees, foremen and other supervisory employees as defined in the Act. (d) On request of the Union, rescind the unilateral changes in the unit employees’ wages, hours, and working conditions implemented in the hiring of unit employees in October 1988 and thereafter, including health and life insurance benefits, pension plan benefits, job classifications, and subcontracted unit work, and make whole affected employees, including those who employment is directed above, and with respect to pension plan benefits of George W. Deimel, for any and all losses they incurred by virtue of the unilateral changes to their wages, fringe benefits, and other terms and conditions of employment from the initial hire of unit employees in Oc- tober 1988 and thereafter, until it negotiates in good faith with the Union to agreement or to impasse, in the manner set forth in the remedy section of this decision. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records and other records and documents necessary to analyze the amount of backpay and other moneys due under the terms of this Order and to ensure that this Order has been fully complied with. (f) Post at its Malvern, Arkansas facility copies of the at- tached notice marked ‘‘Appendix.’’6 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize. To form, join, or assist any union. To bargain collectively through representatives of their own choosing. To act together for other mutual aid or protection. To choose not to engage in any of these protected concerted activities. The National Labor Relations Act holds that an employer who employs a majority of employees from a bargaining unit employed by the former employer, whose operations the new employer takes over, must recognize and bargain with the labor organization that represented the predecessor’s unit em- ployees. 715 PRECISION INDUSTRIES The Act further holds that an employer may not refuse to hire a predecessor’s employees because it wishes to avoid recognizing and bargaining with a labor organization. When Pace Industries, Inc., d/b/a Precision Industries, Inc., acquired the assets and business operation of Universal Die Casting, Inc. in Malvern Arkansas, in October 1988, it un- lawfully refused to hire the vast preponderance of its collec- tive-bargaining unit employees in the unit named below. Ac- cordingly, Pace Industries, Inc., d/b/a/ Precisions Industries, Inc. was obligated to recognize and bargain with the Inter- national Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW) as the exclu- sive representative of bargaining unit employees. Given these facts, we give you the following assurances: WE WILL NOT fail and refuse to hire employees of the predecessor employer, Universal Die Casting, Inc., at Mal- vern, Arkansas, in order to avoid becoming obligated to rec- ognize and bargain with the Union as representative of bar- gaining unit employees. WE WILL NOT refuse to recognize and bargain in good faith with the Union as the exclusive representative of the employees in the bargaining unit set forth below. WE WILL NOT unilaterally set terms and conditions of em- ployment for bargaining unit employees and, thereafter, uni- laterally change those terms and conditions of employment without notifying the Union or providing it an opportunity to bargain respecting proposed changes. WE WILL NOT in any other manner interfere with, restrain, or coerce employees and/or employee applicants in the exer- cise of the rights guaranteed them in Section 7 of the Act. WE WILL offer, in writing, to the extent that we have not already done so, immediate and full reinstatement to all em- ployees named below to the the positions they held with the predecessor or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed while work- ing for our predecessor, and WE WILL make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them as described in the remedy section of this decision, discharging if necessary the persons hired into bargaining unit positions who had not previously worked in the Universal Die Casting, Inc., Malvern, Arkan- sas bargaining unit. WE WILL notify these individuals that we will recognize and bargain with the Union as their exclusive representative. Baker, Charline W. Jordan, Charles W. Ballentine, Ronnie T. Kelly, Velma M. Berryhill, G. Tom Lackey, Frances E. Berryhill, Marvin Lackey, Smitty Bowman, Gerald F. Lowe, Allen Brooks, Willie McCollum, Maude H. Burnett, Henry R. McCollum, Stella P. Burroughs, Willene McDougal, Larry D. Bryant, Tom H. McWhorter, Jackie L. Clark, William Malone, Dorothy J. Cotton, Treva R. Mitchell, Ernestine B. Dial, Elsie Lee Nugent, Elmer Dial, Marvin Ollison, Elaine Diffee, Carrol C. Parish, Verna E. Dixson, Bill B. Pilcher, Donald F. Dyess, Rita Ramsey, Elaine Eason, Doss A. Rogers, A. J. Fain, Kent Rowland, Harold G. Gray, Gerald E. Stewart, Buddy F. Gregory, Naydean C. Thomason, Franklin D. Hardy, Joy G. Turner, Floyd E. Henderson, Jimmie A. Turner, Rachel A. Hill, G. Dexter Wallace, Kathryn A. Hill, Maude Wedsted, Vance Hilligoss, Dick O. Westphall, Charles W. Honold, Brenda J. White, Pearl Hood, Theresa Wilson, Pat Jackson, Henry A. Womack, Dorothy G. Jackson, Jimmie F. Zeigler, George Jackson, Michael D. Zgleszewski, Henry Jones, Laura WE WILL remove from our files any reference to the un- lawful refusal to hire the above-named unit employees, and WE WILL notify these employees in writing that this has been done and that this unlawful conduct will not be used against them in any way. WE WILL, on request, bargain with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) as the exclusive representative of the employees in the following appropriate unit concern- ing terms and conditions of employment and, if an under- standing is reached, embody the understanding in a signed agreement. The appropriate bargaining unit is: All production and maintenance employees, including leaders and truck drivers employed at our Malvern, Ar- kansas plant, but excluding direct representatives of management, such as executives and superintendents, office and clerical employees, engineers, time-study men, draftsmen, laboratory employees, cafeteria help, professional employees, timekeepers, guards, First Aid employees, foremen and other supervisory employees as defined in the Act. WE WILL, on request of the Union, rescind the unilateral changes in the unit employees’ wages, hours, and working conditions that we implemented in the hiring of unit employ- ees in October 1988 and thereafter, including health and life insurance benefits, pension plan benefits, job classifications, and subcontracted unit work, make whole affected employ- ees, including those who are employed as directed above, and with respect to pension plan benefits of George W. Deimel, for any and all losses they incurred by virtue of the unilateral changes to their wages, fringe benefits, and other terms and conditions of employment from the initial hire of unit employees in October 1988 and thereafter, until we ne- gotiate in good faith with the Union to agreement or to im- passe, in the manner set forth in the remedy section of this decision. 716 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL preserve and, on request, make available to the Board or its agents for examination and copying, all payroll records and other records and documents necessary to ana- lyze the amount of backpay and other moneys due under the terms of this Order and to ensure that this Order has been fully complied with. PACE INDUSTRIES, INC., D/B/A PRECISION IN- DUSTRIES, INC., PACE INDUSTRIES, INC., PACE INDUSTRIES, INC., D/B/A GENERAL PRECISION TOOL & DIE, INC., PACE INDUSTRIES, INC., D/B/A AUTOMATIC CASTINGS, INC., A SINGLE EMPLOYER