MSK Corp.-Main Event Food Service

MSK CORP. 43 MSK Corp.–Main Event Food Service and Local 4, Hotel Employees and Restaurant Employees Un- ion. Case 3–CA–22915 January 30, 2004 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND WALSH On February 14, 2002, Administrative Law Judge Howard Edelman issued the attached decision. The Re- spondent filed exceptions, a supporting brief, and reply briefs. The General Counsel and the Charging Party each filed an answering 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 briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions2 only to the extent consistent with this Decision and Or- der.3 A. The Relevant Facts For many years, New York Sportservice, Inc. (Sport- service) was the food service contractor operating con- cession stands and a restaurant at the Buffalo Raceway in Hamburg, New York. The Union represented a unit of approximately 20 Sportservice employees.4 Each year, the Raceway closed for a winter break from mid- December through late January. During the December 2000–January 2001 winter break, the Respondent re- 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance of all the relevant evidence convinces us that they are incorrect. 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. 2 We affirm the judge’s conclusion that the Respondent violated Sec. 8(a)(1) by systematically interrogating employees regarding their sup- port for the Union. 3 We shall modify the judge’s recommended Order to substitute January 21, 2001, the date of the Respondent’s first unfair labor prac- tice, for purposes of the contingent notice mailing obligation pursuant to Excel Container, Inc., 325 NLRB 17 (1997). 4 The Sportservice bargaining unit was: All persons employed in the categories or classifications of bartender, stand attendant, waiter/waitress, bus, cook, salad/pantry, and general utility at Buffalo Raceway regularly working forty (40) hours or more per month, excluding office and clerical employees, guards, profes- sional employees, trainees for management or supervisory positions, managerial employees, purchasing agents, managers, assistant manag- ers, and all supervisors as defined in the National Labor Relations Act, as amended, and all other employees not specifically included as em- ployees. placed Sportservice as the food service contractor at the Raceway. On January 5, 2001,5 Respondent officials attended a meeting of Sportservice employees arranged by Sport- service Office Manager Anne Miller.6 Shortly before the meeting began, Union President Paul Taylor had a pri- vate conversation with Respondent Official and Part- Owner Michael Chemotti. Taylor asserted to Chermotti that the Respondent was bound by the Sportservice col- lective-bargaining agreement pursuant to the successor clause in the agreement. Chemotti disagreed and said that he would talk with Sportservice officials. When the meeting began, Chemotti spoke to the as- sembled Sportservice employees, encouraging them to apply for jobs with the Respondent. During the meeting, the Union openly solicited authorization cards and ob- tained cards from 15 Sportservice employees. Chermotti observed authorization cards at the meeting, and Miller additionally informed him that employees had signed cards. In the weeks following the January 5 meeting, Re- spondent officials called the Sportservice employees in- quiring about their interest in working for Respondent, and, in most cases, offering them jobs. By January 21, the Respondent had hired a substantial and representative complement of employees, a majority of whom had been Sportservice bargaining unit employees.7 The Respondent commenced startup operations at the Raceway in mid-January with a small startup crew, and commenced regular operations with a full employee complement on January 25,8 the day before the Raceway reopened following the winter break. The Respondent continued the Sportservice operations with few if any operational changes. On January 26, the Union made oral and written rec- ognition demands to the Respondent. In early February, Respondent Official Chemotti systematically and unlaw- fully interrogated the employees regarding the employ- ees’ support for the Union.9 On February 5, the Respon- 5 All dates hereafter are 2001 unless otherwise indicated. 6 In mid-January, the Respondent hired Miller as its office manager. 7 See stipulation noted infra. 8 The record does not establish the exact number of employees hired by the Respondent to perform the Raceway food service work. Union President Paul Taylor testified that there were “between 18 or 20” employees. Respondent Official Chemotti testified that “about half a dozen” of the Sportservice employees “had gone on to find other work,” that the Respondent’s employee complement including “mana- gerial staff” was “more than 20 or 25 employees,” that the Respondent hired “about 18” Sportservice unit employees, that there were “34 paychecks” in the “first week’s payroll,” and that the Respondent hired “probably 16 to 18” Sportservice employees. 9 As noted supra, we affirm the judge’s finding that the Respondent violated Sec. 8(a)(1) by these interrogations. 341 NLRB No. 11 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 44 dent advised the Union that a majority of the employees did not want union representation and that the Respon- dent was refusing the Union’s recognition demand.10 B. The Good-Faith Doubt Analysis As found by the judge, and not disputed by the parties, the Respondent is a Burns11 successor to Sportservice, obligated to recognize and bargain with the Union unless the Respondent established that it had a good-faith doubt regarding the Union’s majority status. For the reasons set forth below, we find that the Respondent did not meet its burden of proving good-faith doubt. Initially, the evidence shows that the Respondent’s re- fusal to recognize the Union on February 5 was based in large part on the information received from employees during Chemotti’s unlawful early February systematic one-on-one interrogations of employees concerning their union sentiments. Because this evidence of employee dissatisfaction with the Union was tainted, the Respon- dent was not entitled to rely on that evidence to support its refusal to recognize the Union at that time. Accord- ingly, we find that the Respondent’s refusal to recognize the Union on February 5 violated Section 8(a)(5) and (1) of the Act. The Respondent, however, argues that it had a good- faith doubt of the Union’s majority status even before the unlawful February interrogations. Accordingly, it is nec- essary to analyze the evidence relied on by the Respon- dent to determine whether the Respondent had a good- faith doubt of the Union’s majority status at the time the Respondent’s bargaining obligation attached. We find, for the following reasons, that the evidence relied on by the Respondent to justify its refusal to recognize the Un- ion is insufficient to establish good-faith doubt of the Union’s majority status. 1. The applicable standards The standards to be applied here in assessing the Re- spondent’s claim of good-faith doubt are those set forth by the Supreme Court in Allentown Mack Sales & Ser- vice v. NLRB, 522 U.S. 359 (1998).12 Under that stan- 10 In March, employees Tim Rucker and Thomas Bapst, both former Sportservice employees, drafted and circulated an antiunion petition among former Sportservice employees still employed by the Respon- dent. They obtained signatures from 11 of 14 employees. Rucker showed the petition to Respondent Manager Robert Miles and took the petition to the Board’s Regional Office. When a Board agent explained that the petition would probably be blocked by pending unfair labor practice charges, Rucker decided not to file the petition with the Board. 11 NLRB v. Burns Security Service, 406 U.S. 272 (1972). 12 The judge analyzed the 8(a)(5) withdrawal of recognition allega- tion under St. Elizabeth Manor, Inc., 329 NLRB 341 (1999), which the Board subsequently overruled in MV Transportation, 337 NLRB 770 (2002). Accordingly, the appropriate analytical framework to be ap- plied in this case is Allentown Mack. See Williams Energy Services, dard, absent a contract bar, an employer is obligated to recognize and bargain with its employees’ bargaining representative unless the employer establishes that it has a “good faith reasonable doubt” about the union’s major- ity support. An employer seeking to defend its refusal to bargain on the basis of good-faith doubt, must demon- strate “doubt” in the sense of “uncertainty” rather than “disbelief.” Id. at 367. In assessing whether particular evidence proves good-faith doubt the Board, consistent with Allentown Mack, does not exclude classes of evi- dence–such as an employee’s hearsay assertion to the employer regarding the antiunion sentiments of other employees—but rather accords evidence the weight to which it is entitled based on its reliability. Id. at 368– 380. Accord: Torch Operating Co., 338 NLRB No. 143 (2003); Scepter Ingot Castings, 331 NLRB 1509 (2000), enfd. 280 F.3d 1053 (D.C. Cir. 2002). An employer as- serting good-faith doubt bears the burden of proof on this issue. Alcon Industries, 334 NLRB 604, 605 (2001); Nicholas County Health Care Center, 331 NLRB 970, 992–993 (2000). 2. The date for testing the Respondent’s alleged good- faith doubt As a Burns successor that refused to recognize and bargain with the Union, the Respondent must demon- strate that it had a good-faith reasonable doubt on the date that its bargaining obligation matured. That obliga- tion matured when two conditions were met: (1) the Re- spondent had hired a substantial and representative com- plement of employees, a majority of whom had been Sportservice unit employees; and (2) the Union had made an effective demand for recognition and bargaining. See Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 52 (1987). These two conditions need not occur in any par- ticular order. Thus, where a union demands recognition from a prospective successor employer before that suc- cessor has hired a substantial and representative com- plement of employees, the union’s demand is deemed to be a continuing one and the successor’s bargaining obli- gation matures once it hires a substantial and representa- tive employee complement. See Simon DeBartelo Group, 325 NLRB 1154, 1156 (1998), enfd. 241 F.3d 207 (2d Cir. 2001). The parties here stipulated that the Respondent hired a substantial and representative complement of employees by January 21 and that a majority of those employees had been Sportservice unit employees. The issue in dispute is when the Union first made its bargaining demand. 340 NLRB No. 87 fn. 7 (2003) (noting prospective applicability of withdrawal standards announced in Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). MSK CORP. 45 The judge found that the Union demanded recognition and bargaining on January 5, during Union President Taylor’s conversation with Respondent Official Chemotti, at the start of Respondent’s meeting with the former Sportservice employees. The Respondent excepts to this finding, contending that Taylor’s assertion to Chemotti during the conversation—that the Respondent was bound by the successor clause in the Sportservice collective-bargaining agreement—did not constitute a demand for recognition and bargaining. We reject this argument and adopt the judge’s finding. The Board has long recognized that “a valid request to bargain need not be made in any particular form . . . so long as the request clearly indicates a desire to negotiate and bargain on behalf of the employees in the appropriate unit concerning wages, hours, and other terms and condi- tions of employment.” Stanford Realty Associates, 306 NLRB 1061, 1066 (1992), quoting from Marysville Travelodge, 233 NLRB 527, 532 (1977), enfd. 637 F.2d 1309 (9th Cir. 1981). Here, Taylor told Chemotti that the Union represented the Sportservice employees and gave Chemotti a copy of the Union’s contract with Sportservice. Taylor also called Chemotti’s attention to the successor clause in the Sportservice contract.13 Tay- lor made these statements in the context of the Respon- dent’s meeting with Sportservice employees to explain that it: was taking over Sportservice’s food service, in- tended to continue the Sportservice operation largely unchanged, and wanted the former Sportservice employ- ees to apply for employment. In these circumstances, Chemotti understood or reasonably should have under- stood that Taylor was asking that the Respondent, as a prospective Burns successor to Sportservice, recognize the Union and sign a union contract covering the Re- spondent’s former Sportservice bargaining unit.14 13 The successor clause provided: This Agreement shall be binding upon the parties hereto, their successors, administrator, executors, and assigns. In the event an entire operation is sold, issued, transferred, or taken over by sale, transfer, lease assignment, receivership, or bankruptcy proceed- ings, such operations shall continue to be subject to the terms and conditions of this Agreement for the life thereof. 14 Contrary to the judge and his colleagues, Chairman Battista finds that Taylor’s January 5 statements to Chemotti did not constitute a demand for recognition and bargaining. Initially, Chairman Battista notes that the Union’s February 7 unfair labor practice charge alleged January 26 rather than January 5 as the date of its bargaining demand. Furthermore, during the January 5 Taylor-Chemotti conversation, Tay- lor made no reference to the Respondent’s recognizing the Union, to the Respondent’s bargaining with the Union, to any claim of majority status, or to any specific terms of employment such as wages, hours, or benefits. See Atlas Graphics, Inc., 227 NLRB 136, 140 (1976) (union’s demand that successor sign predecessor’s contract not bargaining de- mand where union did not claim majority status among successor’s employees or demand bargaining). Moreover, Taylor merely cited the Contrary to our colleague, our finding that Taylor’s January 5 statements constituted a bargaining demand is not undercut by Taylor’s failure to use the term “recogni- tion,” expressly mention bargaining, or offer alternate contract terms. The Board has held that a union’s de- mand that a successor employer honor the predecessor’s union contract subsumes a demand for recognition and bargaining. See Metro Toyota, 318 NLRB 168, 177 (1995), enfd. mem. 104 F.3d 353 (2d Cir. 1996); Stan- ford Realty Associates, supra, 306 NLRB at 1066; Ster- ling Processing Corp., 291 NLRB 208, 216 (1988). Nor do we agree with our colleague that Taylor, in cit- ing the Sportservice contract’s successor clause during his conversation with Chemotti, thereby merely asserted to Chemotti that the Respondent had a contractual obli- gation to the Union rather than a statutory duty to recog- nize it. Indeed, Chemotti’s response to Taylor belies that argument. Chemotti told Taylor that Chemotti had been informed that there was no union at Sportservice and that the union contract at Sportservice had expired–comments going to the broader issue of the Union’s status as bar- gaining representative, rather than the narrower issue of the Respondent’s contractual obligation under the suc- cessor clause. Accordingly, we find that Taylor’s January 5 state- ments constituted a continuing union demand for recog- nition and bargaining, which matured into a bargaining obligation on January 21 when the Respondent employed a representative complement of unit employees. Having determined that the Respondent’s bargaining obligation arose on January 21, we next address the Re- spondent’s assertion that it had a good-faith doubt at that point as to the Union’s majority status. In evaluating the Respondent’s claim, we must consider evidence demon- strating both union support and alleged good-faith doubt. See Allentown Mack Sales & Service v. NLRB, supra, 522 U.S. at 369 (“countering evidence of union support” relevant in determining existence of reasonable doubt); contract’s successor clause. This successor clause, in turn, addressed the situation where a new employer took over Sportservice’s operations “by sale, transfer, lease assignment, receivership, or bankruptcy pro- ceedings.” These terms do not reflect the situation in this case. There- fore, in the Chairman’s view, Taylor’s statements constituted at most an assertion—not shown to have merit—that the Respondent owed a con- tractual obligation to the Union; they did not constitute an assertion that the Respondent owed a statutory bargaining obligation to the Union as a Burns successor. In addition, a demand for contract adherence is not the same as a demand for bargaining. Indeed, if there is a contract, there is no need to bargain for a contract. For these reasons, Chairman Battista finds that the Union did not make a valid bargaining demand until January 26 and that the Respon- dent’s bargaining obligation accordingly matured on January 26, not January 21. Since the critical date is January 26, the issue is whether the Respondent had a good-faith doubt on that date. See fn. 28, infra. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 46 Transpersonnel, Inc., 336 NLRB 484, 485 (2001), enfd. in part 349 F.3d 175 (4th Cir. 2003) (employer knew that some employees opposed union but also knew that some other employees joined union-sponsored strike and there- fore supported union). 3. Evidence tending to show majority status We note that some former Sportservice employees signed union authorization cards during the Respondent’s January 5 meeting, that the Respondent knew that em- ployees signed cards at the meeting, and that the Re- spondent hired many of the employees who attended the meeting. The Respondent should have given some weight to this fact—that some employees had recently signed union authorization cards—in reaching its opinion regarding the Union’s continued majority status.15 4. Evidence tending to show good-faith doubt In support of its claim that it had a good-faith doubt regarding the Union’s continued majority status, the Re- spondent relies on both direct and indirect evidence ar- guably showing employee opposition to union represen- tation–that is, statements by employees to Respondent officials stating the declarant’s opposition to union repre- sentation (direct evidence) and statements by employees to Respondent officials stating other employees’ opposi- tion to union representation (indirect evidence). a. The direct evidence of employee opposition to union representation The Respondent’s direct evidence tending to show loss of majority status consists of statements by six employ- ees directly to Respondent officials that each of them opposed union representation.16 This evidence regarding these six employees is entitled to substantial weight. The direct evidence also includes statements express- ing opposition to the Union that former Sportservice em- ployees purportedly made to Respondent Official Chemotti during his mid-January telephone calls to the 15 In concluding that the Respondent had not demonstrated a good- faith doubt regarding the Union’s majority status, the judge relied heav- ily on the fact that a majority of the predecessor’s employees signed union authorization cards at the January 5 meeting. However, in de- termining whether the Respondent had a good-faith doubt regarding the Union’s majority status, the issue is not simply how many employees signed cards but, rather, what the Respondent knew about that card signing. The record establishes only that the Respondent knew that some employees had signed cards at the meeting; it did not establish that Respondent knew that a majority of employees had signed cards. Therefore, although we give weight to the fact that the Respondent knew some employees had signed cards at the meeting, we do not adopt the judge’s reliance on the fact that a majority of the Respondent’s employees signed cards at the meeting. 16 The six employees who made such statements are Thomas Bapst, Tim Rucker, Janice Janus, Anita Averill, Donna Kozma, and Sandra Brown. employees offering them jobs. This evidence is based on Chemotti’s testimony. However, the judge discredited Chemotti’s testimony that those statements were ex- pressed on the employees’ own initiative and were not initiated by Chemotti. The Respondent excepts to this credibility resolution but we find no basis for rejecting it. Further, even assuming Chemotti’s testimony were to be credited, we find, for the following reasons, that Chemotti’s testimony would not establish the Respon- dent’s good-faith doubt defense. The testimony is un- clear in at least three important respects: (1) whether the employees who expressed opposition to the Union during the calls included some or all of the six “direct- statement” employees; (2) the exact number of employ- ees who expressed opposition to the Union; and (3) whether those employees who expressed opposition to the Union accepted jobs in the bargaining unit. With regard to the first concern, Chemotti’s testimony does not identify any of the employees who expressed opposition to the Union during the calls. Therefore, it is possible—indeed likely—that some and perhaps all of the employees who expressed opposition to the Union during the calls were the same six employees who sepa- rately made antiunion statements directly to Respondent officials. Such double-counting provides no additional support for the Respondent’s claimed good-faith doubt regarding the Union’s majority status. With regard to the second concern, the evidence does not show how many employees actually expressed oppo- sition to the Union during the phone calls. Although the judge stated that Chemotti testified that “at least half” of the employees he contacted asked whether the Union would be representing them and expressed their dissatis- faction with the Union, Chemotti’s testimony does not clearly indicate that at least half of the employees actu- ally expressed dissatisfaction with the Union rather than merely inquiring as to whether the Union would continue to represent the employees. Rather, Chemotti testified that “a good portion” of the employees made references to the Union and that the subject of the Union came up “more often than not.” In his affidavit to the Board (relevant portion read at the hearing), Chemotti admitted that he did not recall how many employees had made antiunion statements during the telephone calls. More importantly, Chemotti’s testimony blurs together em- ployee questions regarding whether the Union would continue to represent the employees with employee statements expressing opposition to the Union.17 There- 17 Chemotti testified that “there was a good portion of people that had asked on the phone, most importantly, was the Union going to have representation there and express its dissatisfaction with the Union and certain things that were in place before we came.” This somewhat MSK CORP. 47 fore, Chemotti’s testimony provides, at best, a rough approximation of how many employees made statements referring to the Union during the calls and provides little evidence regarding the number of employees who ex- pressed opposition to the Union during the calls. With regard to the third concern, the record suggests that some of the employees whom Chemotti called did not accept the job offer.18 The record further suggests that some of those who did accept the job offer went to work for the Respondent in nonbargaining unit posi- tions.19 The record accordingly suggests that at least some of the former Sportservice employees who ex- pressed opposition to the Union during the phone calls may have declined Chemotti’s job offer or may have come to work for the Respondent in nonbargaining unit positions. For these reasons we find that, even assuming Chemotti’s testimony regarding the telephone calls were credited in full, that testimony would add little to the Respondent’s evidence of good-faith doubt regarding the Union’s majority status.20 b. The indirect evidence of employee opposition to union representation As noted supra, pursuant to the Supreme Court’s teaching in Allentown Mack, the Board—in assessing an employer’s claim of good-faith doubt regarding a union’s unfocused testimony could be parsed and read literally as Chemotti testifying that “a good portion” of the employees “express[ed] . . . dissatisfaction with the Union.” However, the testimony must be read in context. During his testimony immediately before the quoted pas- sage, Chemotti focused almost exclusively on his discussions with the employees during the telephone calls regarding the issues of whether the Union would continue to represent the employees and whether the union contract would apply to the employees—issues that were related to the Union but that were largely unrelated to the issue of whether the employee opposed the Union. We find that the quoted passage, read in context, shows at most that “a good portion” of the employees either asked questions about the Union or expressed opposition to the Union; it does not show that “a good portion” of the employees expressed opposition to the Union. Accordingly, we do not adopt the judge’s statement that Chemotti testified that “at least half” of the employees contacted by Chemotti expressed their dissatisfaction with the Union. 18 Although the Respondent’s bargaining unit contained only about 20 employees, Chemotti testified that the Respondent made “more than 30, 35 phone calls” to former Sportservice employees (apparently call- ing some employees more than once); he further testified that some of the former Sportservice employees had found jobs elsewhere and did not come to work for the Respondent. 19 The record shows that the Respondent employed individuals in nonbargaining unit positions including hostess, part-time hostess, ex- ecutive chef, assistant manager, office manager, and manager. The record also shows that at least some of these nonbargaining unit em- ployees had worked for Sportservice. 20 Chairman Battista finds no basis for rejecting the judge’s discred- iting of Chemotti regarding these phone calls. Accordingly, he relies solely on that credibility resolution, and does not reach issues that would be raised if Chemotti were credited. continued majority support—gives weight to statements by an employee asserting that other employees oppose union representation. However, in determining how much weight to give to such statements, the Board con- siders “all the circumstances” and is particularly “skepti- cal” when the declarant employee “has little basis for knowledge, or has some incentive to mislead” regarding the purported anti-union views of the declarant em- ployee’s fellow employees. See Allentown Mack Sales & Service v. NLRB, supra, 522 U.S. at 379.21 The Board accordingly gives greater weight to statements where the declarant employee is a union official who, as such, is likely to be knowledgeable regarding employees’ atti- tudes towards the union and whose statements indicating employees’ opposition to union representation are in the nature of statements against the declarant’s interest. See Torch Operating Co., supra (declarant was union stew- ard); Rodgers & McDonald Graphics, 336 NLRB 836, 844 (2001), remanded on other grounds 331 F.3d 1002 (D.C. Cir. 2003) (declarant was union steward). Con- versely, the Board gives less weight to statements where the declarant is known to oppose union representation or where the statements are vague and fail to identify the other employees who allegedly oppose union representa- tion. See Sceptor Ingot Castings, supra, 331 NLRB at 1509, 1512–1514 (statements failed to identify other em- ployees; declarants were proemployer witnesses includ- ing former union official who had transferred to nonbar- gaining unit position); Nova Plumbing, Inc., 336 NLRB 633, 636–637 (2001), enf. denied on other grounds 330 F.3d 531 (D.C. Cir. 2003) (statements were vague; decla- rants were management officials); Horizon House Devel- opmental Services, 337 NLRB 22, 25 (2001), enfd. 57 Fed. Appx. 110 (3d Cir. 2003) (declarant was union steward, but statements were vague regarding number of employees opposing union representation). In this case, the Respondent’s indirect evidence tend- ing to show loss of majority status consists of hearsay statements that employees Bapst and Rucker made to Respondent officials to the effect that other employees opposed union representation.22 However, Bapst and 21 The Court said that the Board was “entitled” to take this position. Id. 22 The testimony describing Bapst’s antiunion statements to Respon- dent Officials Miller and Miles is as follows: (1) “We really didn’t want the Union” (to Miller); (2) “Most of us did [didn’t want the Union], pretty much, everyone I talked to that day [January 5] did” (to Miller); (3) “We didn’t want [the Union] there” (to Miles); (4) “Most of the employees didn’t want the Union here” (to Miles); and (5) “The good majority of us didn’t want the Union here, if not everyone” (to Miller and separately to Miles). The testimony describing Rucker’s antiunion statements to Respondent Official Miles is as follows: (1) “I don’t feel the need for [the Union] to be there . . . most of the employees I’ve DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 48 Rucker were the principal employee opponents of union representation. Accordingly, they had an incentive to exaggerate their fellow employees’ opposition to the Union.23 Furthermore, Bapst’s and Rucker’s opposition to the Union was longstanding and notorious.24 There- fore, the Respondent was aware of Bapst’s and Rucker’s bias and for this reason should have discounted their claims regarding the extent of employee opposition to the Union. In any event, Bapst’s and Rucker’s hearsay state- ments—as well as the testimonial evidence regarding the hearsay statements—are deficient in several respects. In none of the hearsay statements did the speaker (Bapst or Rucker) identify the other employees who al- legedly opposed union representation.25 Therefore, the Respondent did not know whether the other employees who allegedly opposed the Union included the same six employees who separately announced their opposition to the Union directly to the Respondent. Similarly, Bapst’s and Rucker’s hearsay statements (to the effect that “most of the employees I talked to” opposed the Union) have little value absent a showing that the Respondent knew who Bapst and Rucker had been talking to—particularly a showing that the Respondent knew Bapst and Rucker had been talking to employees other than the six employ- ees who separately announced their opposition to the Union directly to the Respondent. Furthermore, with regard to some of the hearsay statements to the effect that “most of the employees op- talked with feel the same way” (on two occasions); and (2) “Most of the wait staff didn’t want the Union and the concession attendants.” 23 By contrast, one of the employees in Allentown Mack who made statements conveying to the employer his fellow employees’ opposition to the union was a prounion shop steward who had an incentive to minimize the extent of opposition to the union and his statements sug- gesting employee opposition union representation were therefore enti- tled to substantial weight. 522 U.S. at 371. See also Torch Operating Co., supra (union shop steward Munoz’ statement that other employees opposed union); Alcon Fabricators, supra (union negotiating committee member Raymond’s statement that other employees opposed union). 24 Bapst and Rucker had each tried to start a decertification cam- paign while working for Sportservice. Bapst had discussed his decerti- fication efforts with a Sportservice manager. Rucker told Respondent Official Miles that he had “complained before” about the Union. The Respondent hired longtime Sportservice Office Manager Miller to be the Respondent’s office manager. In these circumstances, we find that the Respondent was aware of Bapst’s and Rucker’s longstanding oppo- sition to the Union. 25 With regard to Rucker’s statement to Respondent Official Miles that “most of the wait staff and concession attendants” opposed the Union, the statement identified a group of employees. However, the statement did not identify the employees by name and did not assert that all of the employees in the group opposed union representation. Furthermore, the record does not show how many employees were included in the wait staff and the concession attendants. pose the Union,”26 the record suggests that the speaker was referring to “most” of the small startup crew as op- posed to “most” of the full bargaining unit. Since the start-up crew was composed of only five or six employ- ees and since the startup crew included at least three of the six employees who separately announced their oppo- sition to the Union directly to the Respondent, a state- ment that “most” of the startup crew opposed the Union added little to the Respondent’s doubt regarding the Un- ion’s majority status. Moreover, with regard to some of the statements,27 the record suggests that the statements were made after January 21—the date when the Respondent’s bargaining obligation matured and the closing date for the Respon- dent’s receipt of evidence of loss of majority status.28 In these circumstances, we find that the Respondent’s indirect evidence arguably showing loss of majority status is entitled to little weight. In sum, the Respondent knew that at least some em- ployees had recently signed union authorization cards and the Respondent’s reliable evidence of employee op- position to the Union shows only 6 of 20 bargaining unit employees opposed to the Union. Therefore, for the rea- sons set forth above, we find that the Respondent has failed to demonstrate that it had a good-faith doubt re- garding the Union’s majority status on January 21 when the Respondent’s bargaining obligation matured.29 Ac- 26 Bapst’s statement that “we didn’t want [the Union] there” (to Miles) and Rucker’s statement that “I don’t feel the need for [the Un- ion] to be there . . . most of the employees I’ve talked with feel the same way” (to Miles). 27 Bapst’s statements that “the good majority of us didn’t want the Union here, if not everyone” (to Miller and to Miles), Bapst’s statement that “most of the employees didn’t want the Union here” (to Miles), and Rucker’s statement that “most of the wait staff didn’t want the Union and the concession attendants” (to Miles). 28 As noted above, Chairman Battista finds that the Union did not make an effective bargaining demand until January 26. Chairman Battista accordingly would find that the Respondent’s bargaining obli- gation matured on January 26 and that the closing date for the Respon- dent’s receipt of evidence of doubt of majority status was January 26, not January 21. Although we find that the date for evaluating Respondent’s evidence in support of its good-faith doubt is January 21, instead of January 26 as found by the Chairman, we agree with him that—even if the closing date for the Respondent’s receipt of evidence of doubt of majority status were January 26—he Respondent would still not have estab- lished its good-faith doubt regarding the Union’s majority status. 29 In concluding that the Respondent did not demonstrate that it had a good-faith doubt regarding the Union’s majority status, Chairman Battista also relies on the fact that the record does not show that Re- spondent Officials Miller and Miles, who heard most of the statements expressing employee opposition to the Union, relayed this information to Chemotti, who made the decision not to recognize the Union. See Nova Plumbing, Inc., 336 NLRB 633, 637 (2001), enf. denied on other grounds 330 F.3d 531 (D.C. Cir. 2003) (unclear that supervisors Eck- roth, Banks, and Hall told employer president Robbins, who made MSK CORP. 49 cordingly, we find that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union.30 C. The Affirmative Bargaining Order Analysis We further find, for the reasons fully set forth in Caterair International, 322 NLRB 64 (1996), and Wil- liams Enterprises, 312 NLRB 937, 940–942 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995), that an affirmative bargaining order is warranted in this case as a remedy for the Respondent’s unlawful refusal to recognize and bar- gain with the Union. We adhere to the view, reaffirmed by the Board in Caterair, that such an order is “the tradi- tional, appropriate remedy for an 8(a)(5) refusal to bar- gain with the lawful collective-bargaining representative of an appropriate unit of employees.” Id. at 68. In several cases, however, the United States Court of Appeals for the District of Columbia Circuit has required that the Board justify, on the facts of each case, the im- position of such an order. See, e.g., Vincent Industrial Plastics, Inc. v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Building Material Corp. v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos, Inc. v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vin- cent, the court summarized the court’s law as requiring that an affirmative bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the employees’ Section 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Id. at 738. Although we respectfully disagree with the court’s re- quirement for the reasons set forth in Caterair, we have examined the particular facts of this case as the court requires and find that a balancing of the three factors warrants an affirmative bargaining order.31 (1) An affirmative bargaining order in this case vindi- cates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by the Re- decision to withdraw recognition, about employee statements to super- visors expressing employees’ opposition to union). 30 The judge noted that the Respondent in early February systemati- cally interrogated employees regarding their support for the Union; the judge then inferred from this fact that the Respondent must have lacked a good-faith doubt at the time that it conducted the systematic interro- gations. In concluding that the Respondent did not prove good faith doubt, we find it unnecessary to rely upon any inference drawn from the systematic interrogation. 31 Chairman Battista agrees with the District of Columbia Circuit Court of Appeals that a case-by-case analysis is required to determine if the remedy of an affirmative bargaining order is appropriate. See Eden Gardens Nursing Home, 339 NLRB No. 12, slip op. at 2–3 fns. 9 and 10 (2003). On the facts of this case, he finds a bargaining order is warranted. spondent’s unlawful refusal to recognize and bargain with the Union. At the same time, an affirmative bar- gaining order and its attendant bar to raising a question concerning the Union’s continuing majority status for a reasonable time does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation, because the duration of the order is no longer than is reasonably necessary to remedy the ill ef- fects of the violations. The Respondent never recognized or bargained with the Union after it commenced operations at the Raceway, despite the Union’s explicit demands for recognition and bargaining. Furthermore, the Respondent conducted systematic one-on-one interrogations of most bargaining unit employees inquiring into each employee’s prior and current support for the Union. These actions signaled to the employees the Respondent’s continuing disregard for their bargaining representative and would likely have a long-lasting effect. (2) An affirmative bargaining order also serves the policies of the Act by fostering meaningful collective bargaining and industrial peace. That is, it removes the Respondent’s incentive to delay bargaining in the hope of discouraging support for the Union. It also ensures that the Union will not be pressured, by the possibility of a decertification petition or a withdrawal of recognition, to achieve immediate results at the bargaining table fol- lowing the Board’s resolution of its unfair labor practice charge and issuance of a cease-and-desist order. Provid- ing this temporary period of insulated bargaining will also afford employees a fair opportunity to assess the Union’s performance in an atmosphere free of the Re- spondent’s unlawful conduct. (3) A cease-and-desist order, without a temporary de- certification bar, would be inadequate to remedy the Re- spondent’s violations because it would permit a decerti- fication petition to be filed before the Respondent had afforded the employees a reasonable time to regroup and bargain through their representative in an effort to reach a collective-bargaining agreement. Indeed, permitting a decertification petition to be filed immediately might very well allow the Respondent to profit from its own unlawful conduct. We find that these circumstances outweigh the temporary impact the affirmative bargain- ing order will have on the rights of employees who op- pose continued representation. For all of the foregoing reasons, we find that an af- firmative bargaining order with its temporary decertifica- tion bar is necessary to fully remedy the violations in this case. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 50 CONCLUSIONS OF LAW 1. By refusing to recognize and bargain with the Union since January 21, 2001, the Respondent violated Section 8(a)(5) and (1) of the Act. 2. By coercively interrogating employees regarding their support for the Union in early February 2001, the Respondent violated Section 8(a)(1) of the Act. 3. The Respondent’s unfair labor practices described above affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER The National Labor Relations Board orders that the Respondent, MSK Corp.–Main Event Food Service, Hamberg, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating its employees about their membership in or activities on behalf of Local 4, Hotel Employees and Restaurant Employees Union (the Union). (b) Refusing to recognize and bargain collectively in good faith with the Union as the exclusive representative of the unit employees. (c) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on the request of the Union, bar- gain with the Union as the exclusive representative of the employees in the following appropriate unit and, if an understanding is reached, embody the understanding in a signed agreement: All persons employed in the categories or classifica- tions of bartender, stand attendant, waiter/waitress, bus, cook, salad/pantry, and general utility at Buffalo Race- way regularly working forty (40) hours or more per month, excluding office and clerical employees, guards, professional employees, trainees for manage- ment or supervisory positions, managerial employees, purchasing agents, managers, assistant managers, and all supervisors as defined in the National Labor Rela- tions Act, as amended, and all other employees not specifically included as employees. (b) Within 14 days after service by the Region, post at its Buffalo Raceway facility copies of the attached notice marked “Appendix.”32 Copies of the notice, on forms 32 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- provided by the Regional Director for Region 3, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained 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 no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 21, 2001. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps that 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit or protection Choose not to engage in any of these protected ac- tivities. WE WILL NOT interrogate our employees about their membership in or their activities on behalf of Local 4, Hotel Employees and Restaurant Employees Union. WE WILL NOT refuse to recognize and bargain with the Union in the appropriate unit: All persons employed in the categories or classifica- tions of bartender, stand attendant, waiter/waitress, bus, cook, salad/pantry, and general utility at Buffalo Race- way regularly working forty (40) hours or more per month, excluding office and clerical employees, ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” MSK CORP. 51 guards, professional employees, trainees for manage- ment or supervisory positions, managerial employees, purchasing agents, managers, assistant managers, and all supervisors as defined in the National Labor Rela- tions Act, as amended, and all other employees not specifically included as employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL recognize and, on request, bargain with the Union as the exclusive representative of the employees in the appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. MSK CORP.–MAIN EVENT FOOD SERVICE Beth Mattimore and Lillian Kleingardner Esqs., for the General Counsel. John T. McCann, Esq. (Hancock Estabrook, LLP), for the Re- spondent. DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on October 24, 2001, in Buffalo, New York. On August 24, 2001, an amended complaint and notice of hearing issued in this case, which was based on a charge filed on February 7, 2001, by Hotel Employees and Restaurant Em- ployees, Local 4 (the Union). The charge alleges that MSK– Main Event Food Service (the Respondent), a “successor” em- ployer, violated Section 8(a)(1) and (5) of the National Labor Relations Act by refusing to recognize and bargain with the Union, and by interrogating employees regarding their union support and activities. The amended complaint alleges that Respondent violated Section 8(a)(1) and (5) of the Act by inter- rogating employees about their union activities and sympathies, and by refusing to recognize and bargain with the Union. Respondent admits each of the facts which establish that it is a “successor” employer. Respondent’s defense is based on an alleged good-faith doubt of majority support for the Union, which arose between January 6 and 25, 2001. The General Counsel asserts that even if Respondent is able to establish that it had reasonable uncertainty regarding the Union’s majority status, it is foreclosed from this defense by the successor bar doctrine. Based on the entire record herein, including my observations of the demeanor of the witnesses and the excellent briefs sub- mitted by counsel for the General Counsel and counsel for Re- spondent, I make the following findings of fact, and conclu- sions of law. New York Sportservice, Inc. (Sportservice) was up until De- cember 31, 2000, an employer admittedly engaged in interstate commerce as defined by Section 2(2), (6), and (7) of the Act. Sportservice was a corporation, which provided restaurant and food service operations at the Buffalo Raceway in Ham- berg, New York. The Union is admittedly a labor organization within the meaning of Section 2(5) of the Act. The Union and Sportservice were parties to successive col- lective-bargaining agreements from the mid 1960’s up and until December 31, 2000, covering a unit of: All persons employed in the categories or classifications1 set forth in the Wage Schedule attached . . . [January 1, 1998 through December 31, 2000 collective[-]bargaining agree- ment between the Union and New York Sportservice, Inc.] at Hamburg Raceway regularly working forty (40) hours or more per month, excluding office and clerical employees, guards, professional employees, trainees for management or supervisory positions, managerial employees, purchasing agents, managers, assistant managers, and all supervisors as defined in the National Labor Relations Act, as amended, and all other employees not specifically included as employees. As of December 2000, Sportservice employed 18–20 bar- gaining unit employees. In August 2000, the Union notified Sportservice that it wished to begin negotiations for a new contract. In response, Sportservice requested bargaining proposals from the Union and agreed to meet and negotiate. In preparation for negotia- tions, on September 16, the Union met with the unit employees to discuss upcoming contract proposals and appoint a negotiat- ing committee. Thirteen unit employees attended the Septem- ber 16th meeting. On September 29, the Union submitted its contract proposals to Sportservice. In November, Sportservice and the Union began negotiations for a new contract and held a negotiating session on November 9, 2000. Thereafter, two negotiating sessions were scheduled between the parties, but canceled for personal reasons by Angelo Gonzalez, labor rela- tions representative at Sportservice. Respondent is a small corporation performing the same type of services as Sportservice, for other employers. It is admit- tedly engaged in interstate as defined in Section 2(2), (6), and (7), of the Act. It has three owners who are the corporate offi- cers; Michael Chemotti, Steven Jankieweicz, and Kevin Jankieweicz. In November, Denny Lane, the CEO for the Erie County Ag- riculture Society (ECAS), contacted Kevin Jankieweicz and informed him that ECAS was looking to make a change in the provider of food and beverage service at the Raceway. Subse- quent phone conversations and meetings were held between ECAS and Respondent representatives throughout November, during the course of which Chemotti was told by Lane the ECAS was definitely ending its relationship with Sportservice, then responsible for food and beverage service at the Raceway. Lane also informed Chemotti that Sportservice had a contract with the Union, but that the contract expired on December 31, 2000. A contract was subsequently signed between Respondent 1 Classifications include bartenders, stand employees, waiters, wait- resses, bus employees, cooks, salad-pantry, and general utility employ- ees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 52 and ECAS, the effective date of which was January 1, 2001, although operations at the Raceway were not to commence until January 26, 2001. The Raceway is usually closed from mid-December until late January each year. When it became evident to the Union that negotiations would not conclude prior to expiration of the contract, on December 20, the parties executed a memorandum of contract extension that indefinitely extended the existing collective-bargaining agreement, subject to termination upon 14-day advance written notice by either party. Subsequently, by letter dated December 27, 2000, Sportser- vice notified the Union’s business agent, Paul Taylor, that it would cease to operate the restaurant and food service business at the Buffalo Raceway in early January 2001. In early January 2001, Anne Miller, the office manager for Sportservice, informed Sportservice employees employed at the Buffalo Raceway at the time Sportservice ceased operations that Sportservice was no longer the food service operator at the raceway. Miller also informed employees that Respondent would assume operations, that it was interested in hiring back those employees who would like to return, and that it would hold an informational meeting at the raceway clubhouse on January 5, 2001. Nearly all of the former Sportservice employees attended the January 5 meeting, including Miller, who secured from em- ployees closing paperwork for Sportservice, and distributed employment applications for Respondent. Miller later became Respondent’s office manager. Taylor also attended this meet- ing, uninvited, on behalf of the Union. During the meeting, Michael Chemotti, introduced himself to the employees and explained that he expected that almost everyone would be re- tained by Respondent, that he sought a smooth transition, and that there would not be many operational changes. In response to employees’ questions, Chemotti stated that wages would be good, employees would receive pay raises, and seniority would remain the same. Respondent collected employment applica- tions and W-4 forms from employees at this time. Early in the meeting, Taylor introduced himself to Chemotti as the union representative. He told Chemotti that the Union represented the unit employees at the racetrack and that there was a collective-bargaining agreement in effect through a con- tract extension. Taylor also advised Chemotti that the collec- tive-bargaining agreement contained successor language that would apply to Respondent. Chemotti seemed surprised and told Taylor that he had been advised by Sportservice that the union contract had expired, and that the employees were not represented by a union. Taylor replied that the contract had expired but that there was a contract extension. Taylor pro- vided a copy of the contract and extension to Chemotti. Chemotti took the contract and began to make telephone calls. Later on in the meeting, Taylor approached Chemotti again and asked him how he felt about their earlier conversation. Chemotti replied that he would contact a Sportservice represen- tative. During the meeting, Union Stewards Robert Gunning and Pat Castiglione passed out union authorization cards for the employees to sign. As Gunning passed out the cards, he testi- fied that he told each employee that if they wanted union repre- sentation to fill out the card, sign it, and he would be back to collect it. Chemotti saw the union cards at the meeting and was informed by Anne Miller that employees had signed union cards. Fifteen employees signed union cards at the meeting. Respondent witnesses Jim Rucker, Thomas Bapst, and Janice Janus, employees who openly opposed the Union testified that Grunning and Castiglione told the employees that signing the Union was only for a head count, and that a number of employ- ees told them they didn’t want the Union to represent them. Although, the Union never presented such signed cards to any Respondent representative, they were filled out by the em- ployees and I find the cards speak for themselves. The following day, Chemotti spoke with Ann Miller con- cerning the prior evening’s meeting. Miller was not employed by Respondent until sometime in mid-January. Miller informed Chemotti that she was surprised that Paul Taylor had shown up at the meeting, and that a number of employees had spoken with her about the Union and stated that they thought the Union would not be coming back and that once Sportservice was out of the picture, they would not have to be represented by the Union. The following week, Chemotti spoke once again with Miller, and Miller informed Chemotti that a few people had contacted her about possible employment with MSK and that those employees were asking whether the Union would still be around after MSK began operations. On January 10, 2001 Sportservice notified the Union it was terminating its collective-bargaining agreement with the Union. On or about January 15, 2001, Chemotti began making phone calls to those former Sportservice employees who had filled out an application for MSK. The purpose of these initial phone calls was to gauge who was still interested in working for MSK. A few days later, Chemotti began calling employees back and making offers of employment. Chemotti testified that a frequent topic raised by the prospective employees that he called was with respect to whether the Union was going to be back. Chemotti testified that of the 30–35 employees he con- tacted at least half asked whether the Union would be repre- senting them and expressed to Chemotti their dissatisfaction with the Union. Chemotti testified that in each case it was the potential employee that brought up the union topic, and that he did not initiate any conversation concerning the Union. I do not credit Chemotti’s testimony that the employees brought up their dissatisfaction with the Union on their own initiative in view of his later testimony concerning his interro- gations of employees in February as to their feelings about the Union. On direct examination Chemotti testified untruthfully that it was evident how employees felt about the Union by January 26, 2001, and so he did not attempt to try and find out from employees how they felt about the Union. Only when confronted by evidence of his interrogation in the form of nota- tions on an employee list, did Chemotti admit that he had asked employees in early February 2001, about their union sympa- thies and whether they signed union cards. Thus, I conclude that his testimony that during the above pe- riod of time about 50 percent of the 35 employees he tele- phoned as to jobs volunteered that they were dissatisfied with the Union was untruthful as to the number of individuals who allegedly expressed such dissatisfaction, and that such views MSK CORP. 53 were expressed with the question being initiated by Chemotti. In fact, Christine Kempf testified in response to Chemotti’s question as to whether she signed a card that if “he was trying to find out if I was in favor for Unions, I am.” Thus, I conclude that between January 5 and 21, the date Re- spondent admits it had employed a substantial majority of unit employees, alleged knowledge of employees dissatisfaction were statements by Rucker, Bapst, and Janus and his conversa- tions with Miller, described above. Respondent opened to the public on January 26, in conjunc- tion with the regular raceway schedule. Most of the former Sportservice employees reported to work on that day. On Janu- ary 26, 2001, Taylor delivered a letter to Chemotti at the race- way, again demanding recognition. In response, Chemotti told Taylor that he would call him the following week. Taylor tried several times, unsuccessfully, to contact Chemotti over the course of the next week. After em- ployees received their first paychecks from Respondent, in early February, Chemotti approached employees one-on-one at the track and questioned them about their union sympathies. Chemotti asked employees if they had signed a union au- thorization card, how they felt about the Union, and if they understood what they were signing. On or around February 5, 2001, Chemotti told Taylor that he had spoken with the em- ployees and that 80 percent did not want to be represented by the Union. Taylor disagreed. When Taylor asked if he would recognize and bargain with the Union, Chemotti replied that he would not. As set forth above Chemotti testified on direct that the em- ployees volunteered their union sentiments. It was only on cross-examination, when confronted with Respondent docu- ments that he had to admit it was he who initiated the interroga- tion concerning the employees’ views as to the Union. Soon after, on February 12, 2001, the Union sent a meeting notice to unit employees to discuss union recognition at the raceway and negotiations with Sportservice over separation benefits. Twelve unit employees attended. Thereafter, the Union continued to represent the unit in effects bargaining with Sportservice throughout the winter and spring of 2001. Sometime in either February or March 2001, Tim Rucker became aware that the Union was attempting to represent the employees at MSK. Rucker contacted Tom Bapst and sug- gested circulating a decertification petition. Rucker and Bapst then drafted a petition which stated, in effect: “We the former employees of Sportservice, current employees of Main Event and Local 4 members, do not feel the need for Union represen- tation at this time.” Bapst signed the petition and on March 23, 2001, Rucker took it around to the 14 or 15 MSK employees who were previously employed by Sportservice. Of those em- ployees, 11 signed the petition. After receiving the signatures on the petition, Rucker showed it to both Dale Miles and Ann Miller. Either Miles or Miller told Rucker words to the effect that he could take the petition to the National Labor Relations Board. A few days later, Rucker took the petition to the Buffalo National Labor Relations Of- fice. He spoke with a National Labor Relations Board attorney, who informed Rucker that he could file the petition, but be- cause the Union had already filed unfair labor practice charges against Respondent, Rucker’s petition would just hit a dead end. Based on these alleged statements by the National Labor Relations Board attorney, Rucker decided not to file the peti- tion. Analysis and Conclusions Until mid-December 2000, Sportservice had operated the food and beverage services at the raceway. Sportservice and the Union had a longstanding collective-bargaining relationship in existence for over 30 years. The historical unit, comprised of food and beverage service employees, remains an appropriate unit. Respondent stipulated that, for the purposes of this pro- ceeding, the Sportservice unit is an appropriate unit. Respon- dent made virtually no operational changes, which would ren- der the historical unit inappropriate. See Banknote Corp., 315 NLRB 1041 (1994) (in historical units, respondent has heavy burden to show, as a successor, that changes it made in opera- tions rendered inappropriate the longstanding unit). It is undisputed that Respondent is a successor to Sportser- vice. Respondent admits that on January 26, 2001, it began providing the food and beverage service formerly provided by Sportservice at the Buffalo Raceway, operated the business in a basically unchanged form, and since January 21, 2001, em- ployed as a majority of its employees, individuals who were previously employed by Sportservice, and members of the Un- ion. Respondent admits that as of January 21, it became a suc- cessor employer. Where an employer assumes the operations of another em- ployer, there is a substantial continuity in operations, and the majority of the new employer’s work force consists of the predecessor’s employees at a time when the employer has hired its full employee complement, the employer is deemed to be a successor. Fall River Dyeing Corp., 482 U.S. 27 (1987); NLRB v. Burns Security Services, 406 U.S. 272 (1972). A successor employer is obligated to bargain with the Union upon receiving a valid demand for recognition. Fall River Dyeing, 482 U.S. at 52. A union’s demand to bargain, even when premature, is deemed to continue in a successorship situation. Thus, a suc- cessor employer’s duty to bargain with a union commences at the moment it hires a full complement of the predecessor’s employees and it is in receipt of a union’s demand to bargain, regardless of which event occurs first. See Burns, supra, 406 U.S. at 295; Fall River Dyeing, supra, 482 U.S. at 52. The bargaining obligation attached on January 21, 2001, when Re- spondent hired the full complement of its work force, a major- ity of which was comprised of the predecessor’s bargaining unit employees, and were members of the Union. Counsel for the General Counsel contends that on January 5, during the above described employees meeting, Taylor pre- sented to Chemotti with a copy of its collective-bargaining agreement, told him that his Union represented the Sportservice employees and that Respondent would have to apply the collec- tive bargaining agreement to its employees in the same unit covered by the agreement. Counsel for Respondent contends this conduct did not con- stitute a valid demand for recognition. In this regard he argues in his brief: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 54 In any event, Taylor’s brief conversation with Chemotti cannot be deemed a valid demand for bargain- ing. Although both the Board and the Courts have held that a valid request to bargain need not be made in any particular form, the request must at least clearly indicate a desire to negotiate and bargain on behalf of the employees in the appropriate unit concerning wages, hours, and other terms and conditions of employment. See Yolo Transport, Inc., 286 NLRB 1087 (1987); Marysville Travelodge, 233 NLRB 527, 532 (1977). Here Taylor did nothing more than inform Chemotti that he represented the Sportservice employees, present the Union’s contract with Sportservice to Chemotti, and state that there was a successorship clause in the contract. Taylor did not make any mention of a desire to negotiate and bargain with MSK on behalf of the bargaining unit employees, but rather suggested at most, and at best by implication, that MSK owed some contractual obligation to the Sportservice employees. He and Chemotti then had an exchange concerning the contract’s expiration date. Chemotti possessed no prior experience with any union, but informed Taylor that his understanding from Sportser- vice executives was that the Union’s contract with Sport- service expired on December 31, 2000. Taylor responded by handing Chemotti a one-page document, which he al- leged constituted an extension to the contract with Sport- service. At no time did Taylor request the MSK bargain with the Union, nor did Taylor even express a desire to negotiate. As such, Taylor’s comments on January 5 can- not be deemed a valid bargaining demand. The same argument was made in Stanford Realty Associates, 306 NLRB 1061, 1066 (1992). The administrative law judge in that case stated: Respondent contends therefore that here the Union’s sole demand upon Respondent was a request that it sign the industrywide contract, and that at no time did the Un- ion request that Respondent recognize it or bargain with it concerning the terms and conditions of Respondent’s em- ployees. Thus, since under Burns, supra, Respondent as the successor is not obligated to sign the contract previ- ously executed the predecessor employer, Respondent contends that the Union has not made an appropriate de- mand for recognition or bargaining, and Respondent has not unlawfully refused to do so. However, it is has been repeatedly held “that a valid request to bargained not be made in any particular form, or in haec verba, so long as the request clearly indicates a de- sire to negotiate and bargain on behalf of the employees in the appropriate unit concerning wages, hours, and other terms and conditions of employment.” Marysville Travelodge, 233 NLRB 527, 532 (1977). Here, the Union made four demands on Respondent to execute the contract, accompanying some of them with a request to provide medical benefits. Thus, the Union’s demands here, in my view, contemplate and subsume a demand for recognition and sets [sic] forth a bargaining proposal on behalf of the employees. Yolo Transport, 286 NLRB 1087 (1987). See also Sterling Processing Corp., 291 NLRB 208, 216 (1988). Moreover, the Union subsequently filed charges and amended charges against Respondent, which further dem- onstrates and clarifies its request for recognition and bar- gaining. Williams Enterprises, 301 NLRB 167, 174 (1991); Fall River, supra; IMS Mfg. Co., 278 NLRB 538, 541 (1986). (3) The first phrase of the first sentence of the fourth paragraph on p. 10 should read: “Respondent shall recog- nize the Union,” (4) The Respondent’s name in the first sentence of the Order on p. 10 should read: “MSK—Main Event Food Service.” Accordingly, I find counsel for Respondent’s contention is without merit. I also find that the Union made a demand for recognition on January 5. As set forth above such demand when made at a time before the successor employer has hired any unit employees continues, and the bargaining obligation attaches when the employer has hired its full employer work force, in the instant case it is admitted such date was January 21. In light of the outstanding bargaining demand, Respondent would have become obligated to bargain with the Union on January 21, 2001, when it completed hiring its full complement of employees. Burns, supra, 406 U.S. at 280. In St. Elizabeth Manor, 329 NLRB 341 (1999), the Board adopted the “Succes- sor bar” rule, holding that once a successor’s obligation to rec- ognize an incumbent union attaches, a union is entitled to a reasonable period of time for bargaining without challenge to its majority status. Respondent could have no reasonable doubt about the Un- ion’s majority support prior to December 31, 2000. In this regard, the Union had a long 30-year relationship with Sport- service. In September 2000, in preparation for collective- bargaining negotiations, the Union met with 13 of Sportservice unit employees to discuss its bargaining proposals. Bargaining proposals were thereafter formulated and the Union submitted these proposals to Sportservice. On November 9, the parties met to discuss these proposals. Thereafter, the parties agreed to meet on two subsequent occasions. These sessions were can- celed by Sportservice for alleged personal reasons, but no doubt they were canceled because ECAS had made a decision to dis- continue its relationship with Sportservice as of December 31, 2000. The Union then engaged in “effects” bargaining as a result of its shutdown and closure at the raceway on December 31. Respondent contends that as of October 31, 2000, 16 out of 18–20 unit employees had not paid recent union dues. I find the decision to enforce the dues requirement of its union secu- rity clause is a lawful arbitrary choice of the Union, and clearly not evidence of a loss of majority. This is especially true in this case, where a majority of the unit employees met with the Un- ion, formulated bargaining proposals, and the Union thereafter engaged in collective-bargaining proposals with the Union. Accordingly, I conclude that as of December 31, Respondent had absolutely no reason to doubt the Union’s majority support. MSK CORP. 55 With respect to Respondent’s alleged doubt as to union sup- port between January 5, when Respondent met with the unit employees to discuss job applications and received the Union’s valid demand for recognition and January 21 when it hired its total work force and admittedly became a successor, I conclude Respondent did not have a reasonable doubt as to the Union’s majority support. I do not find the statements of two to three employees dissat- isfaction with the Union nor the hearsay statements of Miller, who shortly after the January 5 meeting became Respondent’s office manager concerning employee dissatisfaction to consti- tute sufficient evidence to establish sufficient doubt of union majority. In this connection, 13 unit employees hired by Re- spondent on January 21 signed union authorization cards during the January 5 meeting. I attach little or no significance to Re- spondent witnesses who testified that they were told by the union stewards that these cards were merely for a head count of the employees present. I conclude the cards were filled out by the employees, who presumably read them, and that they estab- lish that a majority of the unit employees supported the Union as of January 5. That Respondent had no reasonable doubt as to the Union’s majority support as of January 21, when its bargaining obliga- tion attached is conclusively established by its systematic inter- rogation of its unit employees sometime during the first week in February 2001, when Chemotti questioned them as to if they wanted the Union to represent them. Further, at the time of the interrogation, in February 2001, Respondent could not challenge the Union’s majority status and could have no lawful motive in the questioning of employees. See Capitol Transit, 289 NLRB 777 (1988) (interrogating em- ployees as to whether they had signed union cards, unlawful, where interrogations were initiated by the employer’s owners); Hudson Neckware, 302 NLRB 93 (1991) (employer violated Sec. 8(a)(1) of the Act by asking employee if she had signed a union authorization card, since employee was not an open/active union supporter, interrogation was conducted by one of the owners, was not done in joking tone, and therefore reasonably tended to restrain, coerce or interfere with employ- ees’ Sec. 7 rights); Polynesian Hospitality Tours, 297 NLRB 228 (1989) (supervisor’s interrogating employees about whether or not they had been forced to sign union authorization cards unlawful, since questions would compel employees to reveal their sentiments regarding unionization; further, the su- pervisor failed to give assurances against retaliation or explain the need for the information before interrogation). Thus, I con- clude Chemotti’s interrogation of employees violated Section 8(a)(1) of the Act, and also serves to establish that Chemotti, as late as early February 2001, did not have a good-faith uncer- tainty about employees’ sentiments about the Union, as re- quired by Allentown Mack, supra. The Board’s decision in St. Elizabeth Manor, supra, and Crown Textile Co., 335 NLRB 201 (2001), require that once a successor relationship is established, Respondent must recog- nize and bargain with the Union for a reasonable period of time. As noted earlier, in St. Elizabeth Manor, the Board adopted the “successor bar” rule, holding that once a successor’s obliga- tion to recognize an incumbent union attaches, a union is enti- tled to a reasonable period of time for bargaining without chal- lenge to its majority status. Id. at 344. The Board in St. Elizabeth Manor reasoned that the same concerns that supported the recognition bar doctrine applied in successorship cases. In particular, parties in a successorship situation “are in a stressful transition period.” Id. at 343. Em- ployees “have not had the opportunity to learn if the incumbent will be effective with the successor” and may “fear that the successor employer will not want the union or would give them a better deal without it.” Id. The Board also noted that, as in the case of voluntary recognition, the parties are “embarking on a new relationship,” which presents a “greater challenge than bargaining between partners in a[n] established relationship” because all issues are being negotiated. Id. And a successor with knowledge that the union’s majority status could be chal- lenged during this delicate time” may be reluctant to commit itself wholeheartedly to bargain.” Id. The Board also noted that the Supreme Court had articulated those same concerns in Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987). The Court in Fall River reasoned that employ- ees in this transitional period may feel that their choice of a union “is subject tot the vagaries of an enterprise’s transforma- tion” and “might be inclined to shun support for their former union, especially if they believe that such support will jeopard- ize their jobs with the successor.” Id. at 39–40. Finally, the Board reasoned that applying an irrebuttable pre- sumption of majority status for a reasonable period would properly balance employees’ Section 7 rights with the Act’s overriding policy of encouraging industrial peace and stability in collective-bargaining relationships. Based upon the facts and analysis described above, it is clear that as of January 21 Respondent has no reason to believe that the Union had lost its majority support, and I conclude that Respondent, a “successor,” was obligated to bargain with the Union as of January 21, at which time the Union had made a valid demand for recognition, and Respondent employed its full work force, a majority of which were comprised of the prede- cessor’s bargaining unit employees, who were represented by the Union. Under the Board’s holding in St. Elizabeth Manor, any evi- dence of disaffection with the Union from January 21, 2001, on is not relevant. The bargaining obligation had attached, and the Union’s majority status could not be challenged. Statements of disaffection made January 21, 2001, and thereafter, including the decertification petition circulation on March 23, 2001, are irrelevant. Thus, even if Respondent establishes it had a good- faith doubt of majority status under Allentown Mack, the “suc- cessor bar” doctrine requires that Respondent recognize and bargain with the Union for a reasonable period of time. Accordingly, I conclude that by its failure to bargain with the Union upon the Union’s demand, Respondent violated Section 8(a)(1) and (5) of the Act. REMEDY Having found Respondent has engaged in certain unfair la- bor practices, I find Respondent must be ordered to cease and DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 56 desist and take certain action designed to effectuate the policies of the Act. Respondent shall recognize the Union, and on request by the Union, bargain in good faith with the Union in the unit set forth and described herein concerning terms and conditions of em- ployment and, if an understanding is reached, embody such understanding in a signed agreement. [Recommended Order omitted from publication.]