E G & G Florida, Inc.

444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E G & G Florida, Inc. and Motion Picture Labora- tory Technicians, Local Union No. 780, Interna- tional Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO. Case 12- CA-10811 24 April 1986 DECISION AND ORDER BY MEMBERS JENKINS, BABSON, AND STEPHENS On 25 May 1984 Administrative Law Judge Ben- jamin Schlesinger issued the attached decision. The Charging Party filed exceptions and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and the Respondent thereaf- ter filed an answering brief to these exceptions and cross-exceptions. The National Labor Relations Board has delegat- ed 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,2 and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, E G & G Florida, Inc., Cocoa Beach, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Order. I The Respondent has filed no document styled as its exceptions or cross-exceptions We shall not consider as exceptions cognizable under Board Rule 102 46(a) and (b) the Respondent's conclusionary statements in its answering brief to the effect that it did not violate the Act in any way and its attempt to support such statements with arguments set forth in its attached brief to the judge We note that Board Rule 102 46(d)(2) limits an answering brief to questions raised in the exceptions and cross- exceptions Accordingly, we shall limit our considerations in this pro- ceeding to issues raised by the Charging Party's exceptions and the Gen- eral Counsel's cross-exceptions 2 In adopting in the absence of exceptions the judge's finding that the Respondent violated Section 8(a)(5) of the Act by failing to bargain over certain initial terms and conditions of employment, we note that the judge relied on evidence that the Respondent had on numerous occasions prior to its successorship assured its predecessor's employees and their Union that it intended to adopt the extant collective-bargaining agree- ment See especially fn 10 of the judge's decision Margaret J. Diaz, Esq., and C. Deke DeLoach, Esq, for the General Counsel. Susan K. McKenna, Esq., and Thomas C. Garwood Jr., Esq. (Akerman, Senterfitt & Eidson), of Orlando, Flor- ida, for the Respondent Bernard M. Mamet, Esq. (Bernard M. Mamet & Associ- ates, Ltd.), of Chicago, Illinois, for the Charging Party. DECISION PRELIMINARY STATEMENT BENJAMIN SCHLESINGER , Administrative Law Judge. The legal issue presented by the unfair labor practice complaint in this proceeding is whether E G & G Flori- da, Inc. (Respondent), as the continuing employing entity and successor employer of McGregor & Werner, Inc. (M&W), which was bound under a subsisting collective- bargaining agreement with Charging Party Motion Pic- ture Laboratory Technicians, Local Union No. 780, International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO (Union), violated Section 8(a)(5) and (1) of the National Labor Relations Act, by changing terms and conditions of employment on or about July 1, 1983, without bargaining with the Union.' 1. JURISDICTION Respondent is a Florida corporation, incorporated in late December 1982, with an office and place of business located at the John F. Kennedy Space Center, Florida (sometimes KSC), where it has been engaged in provid- ing ground support services to the National Aeronautics and Space Administration (NASA), an agency of the United States Government. During the calendar year preceding the issuance of the complaint, Respondent pro- vided services to NASA valued in excess of $50,000. I conclude, as Respondent admits, that it is and has been at all times material herein an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act I also conclude, as Respondent admits, that the Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Findings of Fact Since 1972, the Union has been the collective-bargain- ing representative of employees of M&W; and the latest collective-bargaining agreement, which became effective on February 15, 1982, and expires by its terms on Febru- ary 14, 1985, sets forth the following unit which is ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. All documentation, reproduction, and publication service employees employed by M&W at the John F. Kennedy Space Center in Coaco Beach, Florida and at its activities at Patrick Air Force Base, Flori- da, and the environs. These employees were primarily engaged in printing, mi- crographics, and reproduction of documents. In early 1982, NASA issued a request for proposal (RFP) soliciting bids for a base operations contract I The relevant docket entries are as follows The unfair labor practice charge was filed by the Union on July 14, 1983, and the complaint issued on August 31, 1983 Hearing was held in Cocoa Beach, Florida, on De- cember 8-10, 1983 279 NLRB No. 65 E G & G FLORIDA, INC. 445 (BOC), which contemplated the consolidation of all KSC work then being performed by 14 different contractors The successful bidder would be responsible for perform- ing all the various contractors' work, including security, safety, fire protection, maintenance of roads and grounds, and the work then being performed by M&W and would commence operations on January 1, 1983. The RFP looked to a minimum impact on the local labor force and as few labor problems as possible. To that extent, Re- spondent's president and general manager , James Dubay, testified- "[T]he RFP required hiring from the incumbent work force. The RFP required that any successful bidder hire its work force from the then current workers of Kennedy Space Center to the maximum practical extent." Finally, Dubay was aware of the general tenor of the Service Contract Act, 41 U.S.C. § 351 et seq., which mandates that a successor employer, providing "substantially the same services" as its predecessor, must pay wages and fringe benefits at least equal to those paid by its predecessor. In May 1982 Dubay, on behalf of Respondent's parent corporation, attended a conference of representatives in- terested in bidding for the BOC. Union Business Manag- er Andrew Younger attended that meeting, introduced himself, and offered to give and discuss with prospective bidders copies of the M&W collective-bargaining agree- ment. About a week later, Dubay contacted Younger and told him that he was heading up Respondent's team to bid on the BOC. Dubay stated that he had heard that Younger had contacts with other union business agents and wanted to relate the fact that Respondent had a unique concept to offer-to minimize management, to hire all incumbent employees, and to assume the various subsisting collective-bargaining agreements. He asked Younger to set up a meeting. Younger complied, and at a meeting within the next week were representatives not only of the Union but also of the electrical workers, plant guards, transport work- ers, machinists, and teamsters. Dubay explained to the group the same concept that he had previously told Younger and asked the representatives if they would co- operate with him regarding the gathering of documents and information to prepare Respondent's bid for the BOC. The union representatives agreed to help and agreed, pursuant to Dubay's request, that Respondent could inform NASA that the unions were cooperating with Respondent. In May 1982, Younger again met with Dubay and with Jack Story, another of Respondent's representa- tives. They told Younger that they were desperately in need of applications for employment to show NASA that Respondent could provide the manpower to support its bid They requested staffing charts, contracts, amend- ments to contracts, and work rules and asked Younger to obtain from the other unions copies of their collective- bargaining agreements and documents relating to staff- ing. Later, Story delivered to Younger a thousand blank job applications to be submitted to Respondent by not only the M&W employees whom Younger represented but also by the employees represented by the other unions. Younger retained a sufficient number of applica- tions for the M&W employees and distributed the re- mainder to the other unions. He then arranged for the M&W employees to complete the job applications and delivered the completed applications to Respondent's office in Cocoa Beach, Florida, on June 10, 1982.2 A week later, Respondent submitted its initial bid to NASA. On September 10, 1982, Dubay notified Younger that Respondent was going to submit its "best and final offer" on September 13 and, in preparation therefor, Dubay wished to meet with the other union representatives so that he could again commit labor support of Respond- ent's proposal and show to NASA that Respondent "had had substantive discussions with the labor people and that we opened up lines of communication " Younger ar- ranged for a meeting to be held on September 12 and Dubay there announced that he wanted to restate that Respondent was going to hire from the incumbent em- ployees, that Respondent would recognize and accept the existing collective-bargaining units, and that the col- lective-bargaining agreements would be preserved and would be adopted. If the unions agreed with these con- cepts, he wanted to tell NASA that.Dubay added that there might be a few little problems such as a little cross- utilization of employees in the job descriptions, but there was not going to be too much of that. It was agreed that if there were a little cross-utilization, that could be worked out with the unions' representatives. One union agent asked how Respondent intended to handle fringe benefits for the various units because all had different benefits; Dubay responded that Respondent's parent had the same situation at other locations and that would create no problem. Dubay added that Respondent was going to hire its staff in stages and asked the union repre- sentatives to assist him in selecting the best employees for initial hire. The electrical workers' union representa- tive, however, maintained that hiring should be governed by straight seniority; and Dubay replied, "I'm awfully disappointed in that, but so be it." On the following day Respondent submitted its "best and final offer," in which it acknowledged its obligations under the Service Contract Act. The offer stated, among other things: Presently, it is our intent to offer employment to the majority of the service personnel at the site in- cluding those represented by the various bargaining units. We, of course, intend to recognize the respec- tive bargaining units and embrace the respective bargaining agreements. E G & G has met with each of the labor unions having bargaining units in the BOC. We have a mutual understanding that we plan to assume all ap- propriate existing agreements. In the short term, during the first year, our ob- jective will be to consolidate good working rela- tionships with all appropriate business representa- x Younger inadvertently did not obtain completed applications from three or four employees who were on vacation He subsequently obtained those applications and transmitted them and one updated application to Respondent on January 14, 1983 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives and to demonstrate a reputation for fairness, firmness, honesty, and integrity. This will be ac- complished by addressing problems immediately and openly.3 For the near term (approximately the first three years), our objective will be to improve the current agreements that appear to have many areas of lan- guage that are not conducive to the Company's and Government's best interests. After a brief study of the agreements, we see many areas that would have to be eliminated or modified, including leave policies, grievance and ar- bitration procedures, and particularly language re- lating to automatic cost-of-living allowance in- creases. We would intend to consolidate several of the existing individual agreements into specific Project Labor Agreements. With the exception of the key E G & G manage- ment staff, it is our firm commitment that we will use incumbent employees to the maximum extent in staffing the BOC. Our commitment to and concern for employees and the employment situation in the KSC area cannot be overstated. Any incumbent employees who are displaced by E G & G personnel transfer, approximately 20, or whose position has been eliminated due to consoli- dations and redefinition, approximately 550 posi- tions, will be afforded an opportunity to continue with the organization in similar positions if they so desire, or qualify, and openings are available. In answer to the RFP's request for Respondent's un- derstanding of the Board's "successorship doctrine" and its effect on Respondent's proposed immediate and long- range labor relations, respondent replied: With respect to our obligations under the "successorship doctrine" our proposed approach offers total compliance while at the same time con- templating that degree of flexibility necessary for in- novative project management. We have researched the applicable sections of the United States Code, the Code of Federal Regulations, and the NASA Procurement Regulations, as well as decisions of the Comptroller General, several Boards of Con- tract Appeals and various federal courts and believe 3 Throughout this proceeding, either in documentary evidence or in oral testimony, the adjective "appropriate" was used by Respondent and particularly by Dubay The word means, according to Webster's Seventh New Collegiate Dictionary "especially suitable or compatible ", but it ap- pears obvious that the word has a different meaning when modifying "business representatives " Both the Union and the General Counsel con- tend that what was really intended was "respective," as that word is used in the first paragraph of the quoted portion of the "best and final offer " It appears that, at least in these instances, Respondent was using the word as a reference to particular persons or things, for example, a ma- chinists agreement would be appropriate to the craft represented by the machinists union I find it difficult to believe that the many references Respondent relies on are indications that Respondent would review docu- ments before deciding to adopt them "[A]ppropriate business representa- tives" must be a reference to the union agents whose unions had agree- ments with Respondent's predecessors, and "appropriate" agreements are those which encompassed particular work we understand both our obligations under the doc- trine and Congress' desire in adding the successor- ship doctrine amendments to the Service Contract Act. Presently, it is our intent to offer employment to the majority of the service personnel at the site in- cluding those represented by the various bargaining units. We are aware that when a successor employ- er hires a majority of its predecessor's work force and preserves to some substantial extent, that prede- cessor's operational structures and practices, it may find itself in the position of having to recognize unions previously certified as the bargaining units for its predecessor's employees. Should this be so it does not mean, however, that as a successor em- ployer we would necessarily be bound by the con- tracts between those unions and the predecessor employer or that we would be absolutely required to hire all personnel of the predecessor employer. The purpose of the successor employer doctrine is to guarantee a wage base for employees which all contractors must honor; it is not designed to guar- antee continuation of employment of specific serv- ice workers. In our view therefore, it will be possi- ble to fulfill our obligations under that doctrine and at the same time make personnel assignments or reassignments in keeping with our assessment of the program needs as outlined elsewhere in this propos- al. In November 1982, Respondent was awarded the ex- clusive right to commence final negotiations with NASA concerning the BOC. On December 9, 1982, at a lunch- eon of labor and management representatives in the KSC area, Dubay stated that he desired to affirm that Re- spondent would hire from the incumbent personnel and that only if it was unable to hire from incumbents would it look to other applicants for hire. Dubay also stated that Respondent would absorb all collective-bargaining agreements and units. In attendance was Younger, who asked Dubay what Respondent was going to do about subcontracting, specifically mentioning his own interest in the M&W unit. Dubay answered that subcontracting was still subject to negotiations with NASA.4 Later in the month, about December 13, Younger told Gerard McGhee, newly appointed by Dubay to handle Respondent's relations with labor unions, that Dubay had committed Respondent to hire incumbent employees and honor the collective-bargaining agreements and asked what Respondent intended to do with M&W with re- spect to subcontracting. McGhee professed his ignorance In crediting this testimony , I have discredited the testimony of Dubay Harold Gooch, NASA's chief of labor relations since 1972, sup- ported the essence of Younger's testimony As one experienced in labor relations, he was "surprised" at Dubay's comments because "you don't expect a company to assume, verbatim, collective-bargaining agreements on taking over new contracts It just is rarely done Because there are things in those agreements that the new company feels it must change to put its own stamp on the work at hand" Furthermore, Gooch was wholly disinterested in the instant controversy and was circumspect about having to support the Union's position in this matter and to take a position contrary to one of NASA's prime subcontractors E G & G FLORIDA, INC. 447 and promised to get Younger an answer. On the follow- ing day, McGhee met with Younger and other business agents and announced that he was happy that he was not an attorney and that he was used to dealing with con- struction contracts and not with a 50-percent rule on successorship. Some of the business agents, apparently sensing that Respondent was reneging on its prior com- mitments, began to taunt McGhee, who immediately pla- cated them by reaffirming Dubay's commitment: "Don't care if we hire ten percent of the incumbents or a hun- dred percent of the incumbents, you've got a unit there now, you're going to have a unit when we take over." McGhee noted to the Teamsters' representative that his agreement expired on December 30, but he said not to worry and he would work it out. Younger then raised the issue of subcontracting; McGhee replied that he was still negotiating with NASA but felt confident that there would be a subcontract awarded to M&W. McGhee also discussed staffing, stating that Respondent would hire from the incumbent employees, but would also look to other employees. Younger balked at that statement, and McGhee hedged by saying that Respondent would hire outside employees only if it could not find qualified in- cumbent employees; but he insisted that Respondent was going to hire without regard to seniority. When objec- tion was made, he said it was duly noted, but he main- tained his position. Respondent began directly performing much of the BOC work on January 1, 1983. Some work, however, was subcontracted, such as the M&W work, which con- tinued to be performed by M&W pursuant to a 6-month subcontract from Respondent, dated December 31, 1982 However, Brian Betters, manager of Respondent's infor- mation services division, monitored the M&W work for Respondent. Respondent also assumed various collective- bargaining agreements of other unions; and on January 26, 1983, Dubay wrote to Younger that McGhee had earlier "advised the Unions that [Respondent], in keeping with its commitment, would recognize the appropriate labor agreements only after [Respondent] assumed the BOC contract."5 Thereafter, on March 30, 1983, Re- spondent notified M&W that its subcontract would not be extended beyond its 6-month term and, the following day, wrote to M&W, as follows: As you know by now it is our intent to assume the functions currently being performed by McGre- gor-Werner, 1 July 1983. We at E G & G want to assure you and your people that it is our intent to accomplish the smoothest transition possible in the next three (3) months. I am sure that your people are curious about our policies and approach to this transition. We anticipate that the existing function will be staffed primarily with the existing people. With this in mind, we are actively soliciting applications from your people. I want to encourage all existing per- 5 Dubay also wrote that McGhee had "advised all of the Unions ex- plicitly that seniority accrued under prior contracts with prior contrac- tors would not be the governing factor in determining which individuals would be hired, rather, ability , work history, capability and similar fac- tors would be weighted in the selection process " sonnel to complete applications and forward them to our Cocoa office at their earliest convenience. I am sure that many have already filed applications, but they may wish to update them. We encourage this also. In order to avoid any undermining of your orga- nization, we will delay official hiring until the June time frame. We feel that this approach will be in the best interest of both McGregor-Werner and E G & G. Please give this information the widest dissimina- tion [sic] in your company so that all people are in- formed. After this announcement was made, Betters told M&W employees that Respondent was an employee-oriented company and a good company to work for. And, pursu- ant to the letter, on April 25, 1983, Younger again sub- mitted completed applications for employment for all or almost all the M&W unit employees, not only those then working but also those who had been laid off by M&W on December 31, 1982. On April 26 or 27 Betters invited union steward and M&W employee Carol McCombs and other employees to Respondent's cocktail party, sched- uled for April 28, noting that he wanted her and others to meet his bosses and that the employees "will enjoy working with them." Dubay, who told Betters to extend the invitation, thought it was important to develop a re- lationship with the employees "since we knew they were going to become E G & G employees within a couple of months . . . [and] in the near term." At the cocktail party, Dubay introduced himself to the employees and stated: "[W]e're going to take your operation in-house July 1, and we're going to pick all you people up." He touched the forehead of one employee and said, "I'm going to put E G & G right there on your forehead." Later in the evening, when M&W employees were se- lecting various of Respondent's promotional materials, such as hats and T-shirts, McComb stated that the em- ployees should receive jackets, too. Dubay's assistant, Jackie Cooper, said that the hats were on order; he was working on the T-shirts; and "The Jackets, when every- body comes on board July 1, we'll take care of that. I'll put you in charge." Despite the frivolity and good-naturedness of the party, the relationship between Respondent and the Union soon showed some strain . In May 1983 Younger met with Lawrence Stanton, Respondent's manager of labor relations, and James Waltron, Respondent's direc- tor of industrial relations. To Younger's various inquiries, they replied that they did not know the process by which employees would be hired, whether a smaller staff would be hired, and whether Respondent would pay pension fund contributions weekly or monthly. I credit Stanton's testimony that he told Younger that Respond- ent would not hire by seniority, as stated in Respondent's letter to Younger, dated January 26, 1983; but I also find, discrediting Stanton, that there was nothing said in the meeting that made Younger believe that the Union's agreement would not be continued in full force. Young- er, I find, would not have quietly said, "I didn't think you would" if Stanton had announced that the agree- 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment would not be assumed, especially after all the com- mitments that had been made earlier . The meeting ended with Younger wondering aloud that everything still seemed to be under consideration and asked Respond- ent's representatives to get him the information he re- quested. They did not. Interviews of prospective employees began on June 6 and continued for 2 to 3 weeks. Successful applicants were advised of offers of employment about a week and a half after their interviews. A full complement of em- ployees were hired 4 or 5 days prior to Respondent's takeover of M&W's subcontract, and each employee was required to sign various papers, including Respondent's rules of conduct. However, little was mentioned during the interviews of changed terms and conditions of em- ployment. Rather, Betters testified that he told those he interviewed what the salary was and whether it was "the same as the previous salary had been at M&W for that function" and that fringe benefits, sick leave, vacation, and insurance "would be consistent with what they had before under the terms of the Service Contract Act." The only new item raised was a different job description, which some employees were very briefly shown and which they were not permitted to retain, setting forth a different title for their jobs, which included the same equipment that they then operated and added to their duties certain less difficult equipment which they were expected to operate, either presently or through on-the- job training. Because only a minute or so was given to employees to examine the description and because em- ployees had in the past been required to operate equip- ment other than that to which they had been normally assigned, I find that employees could hardly appreciate what, if any, difference there was between their old jobs and the new ones for which they were being hired. Ob- viously, those who were being hired into supervisory po- sitions or those who were losing their "lead" positions must have known of some change, but no witness, either an employee or one of Respondent's four interviewers, related the content of those conversations. On June 30, 1983, M&W employed 129 unit employ- ees. On July 1 Respondent commenced doing M&W's work at M&W's premises, using basically the same equipment as M&W had used6 and employing 105 unit employees, of whom 91 were formerly M&W employ- ees.' Seventeen lead positions at M&W, occupied by unit employees, were eliminated by Respondent, leaving only three lead positions in the graphics department within the unit. Nine M&W unit employees, eight of whom held lead positions, were hired by Respondent as supervisors; and some of these, as well as those who held lead posi- tions and who were hired as unit employees by Respond- ent, took reductions of pay. Finally, although the basic wages of most employees' positions remained the same, pursuant to the obligations of the Service Contract Act, the following alleged terms and conditions of employ- ment were changed by Respondent, effective as of July 8 The premises occupied by Respondent and the equipment used by it are owned by NASA 7 These computations are based on the parties ' conflicting stipulations at the hearing and my analysis of G C Exh 4, which does not list 115 employees as stipulated by the parties 1, 1983, unilaterally and without consultation with the Union: new job descriptions and classifications were es- tablished; all lead positions, except in the graphics de- partment, were eliminated ; the positions of production control specialist, lead production control specialist, and supply technicians were eliminated; the prior practice of allowing a 15-minute washup time for employees in cer- tain job classifications was disregraded ; a new group life and health insurance plan was adopted ; seniority rights were given effect only for the calculation of vacations and number of sick days and as a tie -breaker in the event of equal merit and qualifications; the work schedule of the second shift was changed; the third shift was aban- doned; a different pension plan was adopted and Re- spondent failed to contribute to the union pension plan; different work rules, overtime policies, and grievance procedures were effected; and a new system of accrual for vacation and sick leave benefits was instituted.8 On July 13, 1983, Respondent recognized the Union as the exclusive bargaining agent of its employees in the following areas: "Documentation, Graphics, Writers, Il- lustrators & Clerks, as defined in NLRB Certification No. 12-RC-3953 [and] Printing and Reproduction, as de- fined in NLRB Cert No. 12-RC-1859." Respondent of- fered to bargain with the Union; and negotiating sessions have been held, but without agreement. B. Credibility The preceding findings of fact have been based pri- marily on the testimony of Younger and other witnesses called by the General Counsel. I found that they were reliable and candid and clearly recollected what tran- spired. Of equal importance, the tenor of their testimony was supported generally by the words of Respondent's representatives both in letters and notices which came to the attention of the Union when they were written, as well as in Respondent's "best and final offer," to which the Union did not have access but which, nonetheless, supports the testimony of the General Counsel's wit- nesses. I have not arrived at the same conclusion about Dubay and other witnesses who testified on behalf of Respond- ent. Usually, I would be forgiving of witnesses who did not recall clearly dates (as, indeed, did Younger) or transferred important events from one time to another, but it is yet another situation when a witness clearly recollects dates based on concurrent important events. Dubay clearly lacked candor in relating that the labor- management meeting at which he spoke occurred in Jan- uary 1983 and that he made no comments about the hiring of incumbent employees or adopting agreements and recognizing collective-bargaining representatives be- cause the BOC was already in effect and employees had 8 The parties stipulated to these unilateral changes The stipulation did not include the date or dates that the changes were announced or imple- mented However, the summary plan description of Respondent's group insurance policy was distributed to the employees on July 14, 1983 Re- spondent's policies regarding vacation benefits were distributed on August 3 and December 5, 1983 Respondent's procedures for the alloca- tion of overtime work were set forth in two memoranda, dated Decem- ber 5 and 6, 1983 Descriptions of Respondent's job bidding policies were issued by Respondent on September 27 and October 17, 1983 E G & G FLORIDA, INC 449 already been hired. He maintained his denials , despite ef- forts to jog his memory on cross-examination, including being shown and identifying a sign-in sheet for the De- cember meeting and despite his knowledge that Younger had testified about that meeting, which he incorrectly identified as occurring in November. It was only after Gooch's testimony on rebuttal, and perhaps the corrobo- rating testimony of another witness, that Dubay finally recalled that the meeting had been held prior to Re- spondent's assumption of the BOC. It was then that Dubay recognized that the basis of his testimony could not be accurate. Even when Dubay was recalled, however, he was not completely candid and failed to admit what was by then obvious. Rather, he testified that he merely had mistaken the date of the meeting and what he had testified to as occurring in January 1983 actually took place in Decem- ber 1982. But the date was critical, inasmuch as Re- spondent had not assumed the BOC and had not hired employees. Without denying why his initial testimony had lost its very basis of truth, he then corrected his tes- timony (and all his testimony seemed to be equally cau- tious and lacking clarity), as follows: "I believe I assured the group that, in all probability, if they had a-if they were the recognized bargaining agent for the work then going on, that, in all likelihood, they would be the rec- ognized bargaining agent for the work under contract .... It certainly was my intent at that meeting to couch any assurances which I might have perceived to have made in terms of appropriateness. And I believe I did that." Similarly, with respect to the assumption of agreements, "I believe my response there was couched in terms of appropriateness . . . that we would recognize appropriate bargaining units, bargaining agreements." Gooch's only recollection of the word "appropriate" was that Dubay announced his intention to recognize those units coming over under successorship rules and to live within the collective-bargaining agreements appro- priate to those units. Later, he recalled Dubay pledging to recognize the unit coming over under successorship rules and to live within the existing bargaining agree- ments that controlled those units.9 Finally, Dubay testified during his second appearance as a witness that the question of recognition of bargain- ing agreements "had been a question of concern even way back in our initial meeting in April [1982]"; but it was Younger, corroborated by Teamsters Business Rep- resentative Samuel Casella, who testified to that occur- ring in April, whereas Dubay had earlier denied it. And Dubay, denying that anything of substance had been raised at the April meeting, insisted that he had not even read the RFP, only minutes after testifying that: "The RFP looked good, it looked like the type of work that we had in a number of other areas across the country." Although there was some truth to Dubay's testimony on recall, his entire testimony was hardly the model of candor. Rather, Dubay consistently answered his own questions and made arguments rather than answers to questions. On the whole, unless otherwise corroborated 9 This comports with my understanding of Respondent 's use of "ap- propriate " See fn 3 above. by the General Counsel's witnesses, I have not credited him. I have similar problems with Betters, who appeared angry, hostile, and adversarial. Although not all ques- tions put to him on cross-examination had the desired precision, Betters frequently expressed his lack of under- standing of questions which, I find, were easily capable of comprehending. His attitude was belligerent and eva- sive. He amplified the changes which Respondent made to M&W's operation, changes which I find were not nearly as monumental as he attempted to suggest. Having monitored M&W's operations for a half-year and familiarizing himself with the work of M&W's employ- ees, he nonetheless maintained the position that the em- ployment interviews were held to make the judgment of whether the applicants should be hired. That could not be so. By his own admission and the admission of the one other interviewer who testified, a job classification was prepared for each applicant. The job interviews were so innocuous that they could not be helpful in as- certaining who was qualified. I conclude that, even prior to the interviews, Respondent had determined who was going to be hired and for what position. Indeed, Betters testified that he knew who would staff Respondent's jobs 3 weeks before offers of employment had been complet- ed; and I find that, with his daily contact with M&W's employees since January, he must have been aware of the qualifications of employees long before the time which he admitted. I discredit his testimony that he ad- vised all applicants during their interviews that Respond- ent did not intend to adopt M&W's collective-bargaining agreement, which he said was common knowledge and had been told to employees prior to the interviews. When asked to identify those, Betters named only one M&W supervisor and three M&W employees who were subsequently interviewed for supervisory positions with Respondent. Finally, Betters said he made some state- ments that the agreement would not be in effect as early as February, when no decision had been made by Re- spondent to take back the work from M&W. I have also considered testimony concerning a March 8, 1983 meeting attended by Younger, Union Attorney Sidney Mamet, Respondent Attorney Thomas Garwood, and Robert Camparatro, Respondent' s assistant manager of labor relations. Garwood testified on direct examina- tion that the meeting involved Respondent's recognition of the Union and adoption of the agreement, if M&W's work were taken "in house." Garwood alleged that he made clear that recognition depended on successorship criteria and that he did not believe that the agreement would be assumed. Both Mamet and Younger vehement- ly denied Garwood's testimony and insisted that the dis- cussion centered around wholly unrelated problems of other units represented by the Union and current l itiga- tion involving them. I credit their denials, not only be- cause I was impressed with the clarity of their recollec- tions, but also because Garwood's comments are incon- sistent with Respondent's contrary positions expressed both orally, and in writing, both before and soon after this alleged incident. At that point in time, I find it im- probable that, in light of Respondent's prior assurances, 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mamet would have made a special trip to Respondent's office to talk about matters that the Union deemed closed and settled. Finally, Garwood's testimony that Younger did not vehemently protest Garwood's com- ments convinces me that the discussion related by Gar- wood is wholly improbable. C. Discussion All the parties recognize that the controlling decision dealing with the issues in this proceeding is NLRB v. Burns Security Services, 406 U.S. 272 (1972). There, the Supreme Court held that the mere finding of a successor- ship did not require the successor employer to assume and be bound by the subsisting collective-bargaining agreement of its predecessor; but the successor had an obligation to recognize and bargain with the collective- bargaining representative of its employees. The Court found that Burns, by initially employing 42 security guards, of whom 27 formerly worked for its predecessor, was a successor to Wackenhut. However, because Burns had no previous relationship with Wackenhut's unit and no outstanding terms and conditions of employment, it could not have unilaterally changed existing terms and conditions of employment when it specified the initial basis on which it would hire employees when it inaugu- rated its protection services. In dicta, the Court also stated, id. 294-295: Although a successor employer is ordinarily free to set initial terms on which it will hire the employ- ees of a predecessor, there will be instances in which it is perfectly clear that the new employer plans to ietain all of the employees in the unit and in which it will be appropriate to have him initially consult with the employees' bargaining representa- tive before he fixes terms. In other situations, how- ever, it may not be clear until the successor em- ployer has hired his full complement of employees that he has a duty to bargain with a union, since it will not be evident until then that the bargaining representative represents a majority of the employ- ees in the unit as required by § 9(a) of the Act, 29 U.S.C 159(a). Here, for example, Burns' obligation to bargain with the union did not mature until it had selected its force of guards late in June. The Board quite properly found that Burns refused to bargain on July 12 when it rejected the overtures of the union. It is true that the wages it paid when it began protecting the Lockheed plant on July 1 dif- fered from those specified in the Wackenhut collec- tive-bargaining agreement, but there is no evidence that Burns ever unilaterally changed the terms and conditions of employment it had offered to potential employees in June after its obligation to bargain with the union became apparent. If the union had made a request to bargain after Burns had complet- ed its hiring and if Burns had negotiated in good faith and had made offers to the union which the union rejected, Burns could have unilaterally iniated such proposals as the opening terms and conditions of employment on July 1 without committing an unfair labor practice. The first issue herein is whether Respondent made the hire of M&W's employees "perfectly clear." There can be no doubt of that. From the mandates of NASA to hire from the incumbent work force to the maximum practical extent, to Dubay's understanding of that man- date, to Respondent's commitment in its "best and final offer" to do so-a commitment which "cannot be over- stated"-to its promises not only to the Union but all other involved unions, to its letter to M&W, to its invita- tion of M&W employees to its cocktail party, Respond- ent made its intentions "perfectly clear" that it would hire M&W's employees to the maximum extent practical. There was, of course, a limitation to Respondent's promise. I find that the totality of Respondent' s actions did not indicate that each and every M&W employee would be employed by Respondent Changes were possi- ble; not all employees might have the skills that Re- spondent desired; some reorganization was planned. And Younger was aware of it, questioning whether positions would be eliminated and questioning whether his wife would be retained by Respondent in light of its general rule against nepotism . At first blush, the Supreme Court's words might be interpreted to mean that before a prehire institution of changes could take place it had to be "per- fectly clear" that all the predecessor's unit employees had to be hired. But the Board has interpreted that lan- guage not to require that all employees be hired. In Spitzer Akron, 219 NLRB 20, 22 (1975), enfd. 540 F.2d 841 (6th Cir. 1976), cert. denied 429 U.S. 1040 (1977), the Board wrote: Clearly, the phrase "plans to retain all the employ- ees in the unit," when read in the light of the sen- tence which follows, would cover not only the situ- ation where the successor's plan includes every em- ployee in the unit, but also situations where it in- cludes a lesser number but still enough to make it evident that the union's majority status will contin- ue. There, 10 of 11 employees were hired. Here, 91 M&W employees were hired to fill unit positions and only 14 employees were hired from elsewhere, so that 87 percent of the Respondent's unit employees were previously em- ployed by M&W. Machinists v. NLRB, 595 F.2d 664, 669-670 fn. 29 (D.C. Cir. 1978). Respondent's intent to hire a substantial portion of M&W's employees is also made "perfectly clear" by the fact that Respondent also hired 9 former unit employees as supervisors, so that it hired 78 percent of M&W's employees. In Howard Johnson, 198 NLRB 763 (1972), enfd. 496 F.2d 532 (9th Cir. 1974), and Good Foods Mfg., 200 NLRB 623 (1972), enfd. 492 F.2d 1302 (7th Cir. 1974), the Board found an 8(a)(5) violation when the successor employer, without prior warning, unilaterally changed the terms and conditions of employment prevailing under the predecessor's agreement, after the successor had committed itself to hire almost all the old unit employees with no notice that they would be expected to work under new and different terms and conditions of employ- ment. However, in Spruce Up Corp., 209 NLRB 194, enfd. 90 LRRM 2025 (4th Cir 1974), the Board found no E G & G FLORIDA, INC. 451 violation when the successor, in advance of its takeover, clearly announced its intent to establish a new set of terms and conditions of employment prior to inviting former employees to accept employment. It held, id. at 195, as follows: When an employer who has not yet commenced operations announces new terms prior to or simulta- neously with his invitation to the previous work force to accept employment under those terms, we do not think it can fairly be said that the new em- ployer "plans to retain all of the employees in the unit," as that phrase was intended by the Supreme Court. The possibility that the old employees may not enter into an employment relationship with the new employer is a real one, as illustrated by the present facts. Many of the former employees here did not desire to be employed by the new employer under the terms set by him-a fact which will often be operative, and which any new employer must re- alistically anticipate. Since that is so, it is surely not "perfectly clear" to either the employer or to us that he can "plan to retain all of the employees in the unit" under such a set of facts. We concede that the precise meaning of the Court's caveat is not easy to discern. But any interpretation contrary to that which we are adopting here would be subject to abuse, and would, we believe, encour- age employer action contrary to the purposes of this Act and lead to results which we feel sure the Court did not intend to flow from its decision in Burns For an employer desirous of availing himself of the Burns right to set initial terms would, under any contrary interpretation, have to refrain from commenting favorably at all upon employment prospects of old employees for fear he would there- by forfeit his right to unilaterally set initial terms, a right to which the Supreme Court attaches great importance in Burns. . . . We believe the caveat in Burns, therefore, should be restricted to circum- stances in which the new employer has either ac- tively or, by tacit inference, misled employees into believing they would all be retained wihtout change in their wages, hours, or conditions of employment, or at least to circumstances where the new employ- er, unlike the Respondent here, has failed to clearly announce its intent to establish a new set of condi- tions prior to inviting former employees to accept employment. [Footnote omitted.] Here, Respondent repeatedly assured Younger, among others, orally and in writing, that it would adopt the Union's collective-bargaining agreement. Furthermore, the Service Contract Act required Respondent to main- tain wages and benefits at a level at least equivalent to those contained in the M&W agreement. Unlike the facts in Spruce Up, there was no doubt that employees would not accept offers of employment because of reductions of wages and benefits. In Arden's, 211 NLRB 501 (1974), a Board plurality (Chairman Miller and Member Kennedy) dismissed the complaint because it found that the successor employer gave no advance commitment that its predecessor's em- ployees would continue to be employed and no advance notice that it was going to change the terms of their em- ployment. Thus, it was proper, even on the day of the successor's takeover, for the successor to offer employ- ment to employees and, at the same time, advise them of newly established wages and terms of employment. Member Jenkins concurred solely in the result Member Fanning agreed with the result, but on the basis that the union had constructive notice of the fact of the turnover and that it had an adequate opportunity to request bar- gaining or to inquire about the successor's intentions prior to the commencement of its operations. Further- more, Member Fanning saw little difference between Burns, in which the Supreme Court found no violation, and the successor's institution of its terms and conditions of employment along with its stated willingness to bar- gain with the union. In both there was, in his view, no obstruction of the collective-bargaining process. Member Penello dissented, finding that it was perfectly clear that the employer planned to retain all the employees in the unit and that there was no prior notice to the employees that any change of their terms of employment was con- templated. These decisions demonstrate, as do some cited below, that Respondent had the choice of maintaining silence, hiring employees at the last moment, and unilaterally in- stituting new terms and conditions of employment. But, as indicated by Spruce Up, Respondent could not mislead employees into believing that they would be retained with no change of their employment conditions or could not fail to clearly announce its intent to establish new conditions prior to hiring employees. Respondent's ac- tions fall within both these exceptions. It indicated that M&W's employees would be hired with no change, and it failed to announce clearly any new conditions. L.A.X. Medical Clinic, 248 NLRB 861 (1980); Starco Farmers Market, 237 NLRB 373 (1978); Denham Co, 218 NLRB 30 (1975); Bachrodt Chevrolet Co., 205 NLRB 784 (1973), enfd. 515 F.2d 512 (7th Cir. 1975), cert. denied 423 U.S. 927 (1975). Respondent contends, however, that its status as a suc- cessor arose only when it hired M&W's employees, a process that I have found was completed about June 25 or 26, 1983. Even if that be so, the changes were an- nounced no earlier than July 1, so that there was an obli- gation to bargain 4 or 5 days prior to that date. In any event, Respondent's contention does not accurately re- flect Board law. In Roman Catholic Diocese of Brooklyn, 222 NLRB 1052 (1976), enf. denied in relevant part sub nom. Nazarath Regional High School v. NLRB, 549 F.2d 873 (2d Cir. 1977),10 the Board concluded that the em- 10 The court of appeals took exception to the Board's interpretation of Burns that an employer must clearly announce changes to the employees' terms and conditions of employment, holding that "The important con- sideration in determining whether it is perfectly clear that a successor in- tends to retain all of the employees is whether they have all been prom- ised re-employment on the existing terms " (549 F 2d at 881 ) Even under that rule, Respondent, by coupling its intention to retain incumbent em- ployees with its promise to adopt the M&W agreement , made it perfectly clear that existing terms were not going to be changed Continued 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployer was a successor, having employed by September 1, 1974, the date it commenced operations, 55 laid-off teachers, of whom 48 were employed by its predecessor. The Board also concluded that this was one of the "per- fectly clear instances referred to in Burns , because the chairman of the employer's board of trustees had ex- pressed the intention on March 25, 1974, to retain all the predecessor's teachers. Because his intention became a reality, the Board held that it became appropriate on the March date for the employer to consult with the union before imposing initial terms of employment, despite the fact that the promise to rehire was disavowed in late April. In C.M.E., Inc., 225 NLRB 514 (1976), the Board agreed with the administrative law judge that the em- ployer was a successor and violated Section 8(a)(5) and (1) by unilaterally changing terms of employment with- out prior notice to or opportunity for bargaining by the union, but disagreed that the obligation commenced on May 6, 1975, the date that the Union demanded recogni- tion. Again finding the "perfectly clear" exception from the successor's expressed intention on February 25 to rehire all the predecessor's employees by seniority, the Board found that the duty to bargain commenced on that date rather than on later dates when applications for em- ployment were solicited or when the union and the em- ployer met to discuss contract revisions. See also Stewart Granite Enterprises, 255 NLRB 569, 575 (1981). Under the facts in this proceeding, there is no doubt that the retention of M&W's employees became "perfect- ly clear" long before Respondent's hiring was completed. Respondent built up the Union's and employees' expecta- tions from the very beginning of its involvement with NASA. Respondent actively solicited the Union's help to obtain a favorable response to its proposal for the BOC so that NASA would be satisfied that there would be both sufficient manpower to perform and labor peace and stability. Respondent "put out the word that we The Court of Appeals for the District of Columbia appears to disagree with the views of the Second Circuit, although disclaiming consideration of the above quotation Machinists v NLRB, supra, 595 F 2d at 672 fn 40 Id 674-675, the court wrote Even when Burns is read, as the Board does, to limit compulsory initial-terms bargaining to situations wherein the successor has indi- cated that incumbents will be retained and has not concurrently an- nounced downward changes in employment terms, predecessor-em- ployees are afforded an important measure of protection Once the duty to bargain has thus attached, the successor is obliged to consult the incumbent union before institution of less satisfactory terms That is significant because unconditional retention-announcements engen- der expectations, ofttimes critical to employees, that prevailing em- ployment arrangements will remain essentially unaltered Even when incumbents are not affirmatively led to believe that existing terms will be continued, unless they are apprised promptly of impending reductions in wages or benefits, they may well forgo the reshaping of personal affairs that necessarily would have occurred but for an- ticipation that successor conditions will be comparable to those in force The Board was hardly at liberty to ignore these concerns, and its construction of Burns is responsive to them On the one hand, in- cumbents informed of the availability of employment with the suc- cessor entity but contemporaneously notified of substantial changes in the conditions thereof are not lulled into a false sense of security When, on the other hand, the announcement of job-availability is un- accompanied by any such warning, incumbents may resolve to cast their lot with the successor, secure in the knowledge that they can invoke the aegis of collective bargaining should alterations in the terms of the employment be proposed [Footnotes omitted l would hire to the maximum extent practical from the in- cumbent work force." Respondent kept leading the Union on with its promises and so advised NASA. When it was granted the BOC, Dubay once again advised the Union, as well as others, that it would hire the incum- bents and adopt the collective-bargaining agreements; and in late March 1983, when it finally determined to take M&W's work "in house," it assured the employees that they would be offered employment and sought their applications. Their hire was delayed until later, but that was only a formality. It was intended, at least by March 30, 1983, that they would be hired. If it were not "per- fectly clear" by then, it was on that date that it became "perfectly clear." No actions by Respondent after that date and until July 1, 1983, or after, indicated in any way that Respondent did not intend to hire substantially all M&W's employees, under the same terms and conditions that they had been previously employed. I i Accordingly, under Burns and its progeny, I conclude that Respondent was required to consult with the Union before it fixed employees' terms of employment. That does not mean, however, that all the relief requested by the General Counsel should be granted. One of the issues raised is the scope of relief, the Union contending that Respondent assumed M&W's collective-bargaining agree- ment. Thus, it claims, for example, that Respondent laid off M&W's employees without regard to their seniority and requests that senior employees be reinstated and made whole, permitting Respondent to simultaneously lay off less senior employees for whom it has no need. The General Counsel does not support the Union's con- tention, insisting that there was no adoption of the con- tract and that the Union specifically withdrew that por- tion of its unfair labor practice charge alleging an adop- tion. However, because the Union's claim goes to the 11 Contrary to Respondent's contentions, the answer to the RFP's in- quiry about Respondent's understanding of the "successorship" doctrine, above, does not support Dubay's denials of expressing intentions of main- taining the same terms of employment that prevailed under M&W's con- tract First, it must be noted that the full answer appears to be directed in great part to Respondent's understanding of its obligations under the Service Contract Act However, when Board law appears to apply, I read Respondent's analysis as a reflection of Burns, that is, as a successor, it is not necessarily bound by its predecessor's contract Furthermore, the successorship doctrine does not require Respondent to hire all employees of its predecessor What is important is what it did, and the Union co- gently argues that Respondent's approach offered total compliance with the successorship doctrine, noting in its brief that Respondent went beyond the minimum requirements of the successorship doctrine because it represented that it would assume all existing agreements and, of course, this, although not required by the doctrine, is not prohibited by it Its reference to maintaining a degree of flexibility and its objective with re- spect to improving "the current agreements," rather than limit the intent to assume the agreements, emphasizes such intent Respondent replied that "For the near term (approximately the first three years), our objec- tive will be to improve the current agreements that appear to have many areas of language that are not conducive to the Company's and the Gov- ernment's best interests " All collective-bargaining agreements would have expired during that time and the changes, if any, were clearly in- tended to be proposed at the expiration of each agreement Otherwise, why say "the first three years " I find that there is nothing in Respondent's "best and final offer" which precluded it from assuming the various agreements and then bargaining with the various unions for the changes it thought were necessary to carry out its functions in accordance with the aims and desires reflected in the offer E G & G FLORIDA , INC. 453 remedy herein, its contention is certainly cognizable in the circumstances of this case. Burns holds that a successor is not to be presumed bound to its predecessor's collective-bargaining agree- ment. However, a successor is free to adopt voluntarily its predecessor's contract . The Board has interpreted Burns as "[counseling] utmost restraint in applying an adoption theory , absent clear and convincing evidence of consent, either actual or constructive." All State Factors, 205 NLRB 1122, 1127 ( 1973). There, the Board found that although the successor , a secured creditor in posses- sion of its collateral-the predecessor's business-com- plied with the predecessor's contractual wage scale and contributed to the health and welfare and pension fund, in view of the short time that the successor would be "on the scene," it could not be deemed "to have ob- served the . . . agreement to an extent and in a manner sufficient to have become bound in a constructively con- sensual way to the terms of the agreement ." Id. at 1127. In all Board decisions finding adoption, the successor employed virtually all the predecessor's employees at the time the conduct demonstrating the adoption occurred. In Eklund 's Sweden House Inn, 203 NLRB 413 (1973), relied on by the Union , the Board found that even though the successor expressly disavowed the collective- bargaining agreement in its contract of sale with the predecessor, it constructively adopted the agreement by consulting the contract to ensure that a raise was con- tractually permissible , checking off dues for I month, and considering the contract a base from which negotiat- ing would begin . In Stockton Door Co., 218 NLRB 1053 (1975), enfd . 547 F.2d 489 (9th Cir . 1976), the Board found that the successor had adopted its predecessor's collective-bargaining agreement by paying contractually prescribed wages, making pension contributions , follow- ing the contract's grievance procedures, and assuring the Union that it would abide by the contract , thus render- ing negotiations for a new contract unnecessary. In World Evangelism , 248 NLRB 909 (1980), enfd . 656 F.2d 1349 (9th Cir. 1981), the Board found that the successor's express promise to sign the contract in the face of a walkout constituted adoption of the predecessor's con- tract. Here, Respondent did not adopt the union agreement after it commenced its operations on July 1, 1983. To the contrary, its failure to abide by the terms of the agree- ment gives rise to this proceeding . The most that can be found is that generally Respondent complied with the re- quirements of the Service Contract Act, paying its em- ployees wages and fringe benefits at least equal to those paid by the predecessor . To find that Respondent adopt- ed M&W's collective-bargaining agreement by merely doing what it was obligated to do by statute would have the anomalous result of binding it to M&W's agreement involuntarily Such a result, however, clearly impinges on a successor's freedom to contract-a freedom the Su- preme Court has refused to restrain. See NLRB v. Jones & Laughlin, 301 U S . 1, 41 (1937); Porter Co. v. NLRB, 397 U. S. 99 (1970). Although I have relied above on Respondent's repeat- ed promises to adopt the union agreement, that finding was to support the principle that Respondent did not intend to change employees' terms and conditions of em- ployment; but it did not constitute a valid and binding contract adopting M&W's agreement . Even if it did, at the time when Respondent made the commitment, it had no employees and thus the agreement would constitute an invalid prehire agreement. Ladies Garment Workers v. NLRB, 366 U.S. 731 (1961 ); Majestic Weaving Co., 147 NLRB 859 (1964), enf. denied on other grounds 355 F.2d 854 (2d Cir. 1966). Because there was no adoption or assumption of M&W's contract , either actual or constructive or legal, the Union's claim that certain of M&W's employees were illegally laid off cannot be sustained. Until July 1, 1983, Respondent had no employees and could not lay off its predecessor's employees . Similarly, because a basis for a finding of successorship is the employment of a majority of its predecessor's employees, no successorship can be found until the hire . For this reason, certain allegations of the complaint must be dismissed . It is clear that Re- spondent did not hire a production control specialist, a lead production control specialist, and supply technicians and that all lead positions, except three, were eliminated. Many of those who occupied lead positions became su- pervisors, and others became employees, although not in their lead positions. Although it was "perfectly clear" that Respondent intended to offer employment to M&W's employees long before July 1, 1983 , no succes- sorship became effective until that latter date, when Re- spondent commenced its operations . The hire of employ- ees, in this context, became paramount, and even Young- er assumed that Respondent would not hire as many em- ployees as M&W had on its payroll. The parties have cited no decision in which it has been held that a successor employer did not have the right to reduce the number of jobs which it desired to offer; nor does the General Counsel allege that the failure to fill other positions of M&W violated the Act. To do so would mean that Respondent has assumed M&W's agree- ment, a legal position which the General Counsel specifi- cally disavows. If Respondent were permitted to hire one less equipment operator, it is difficult to support its claim that Respondent was not entitled to hire 1 less, or even 17 less, lead operators. By hiring less employees, a successor may decide to produce less or decide that it might be able to produce the same amount by utilizing fewer employees more efficiently . Until the employees have been hired, I conclude that there was no duty, either, to maintain a third shift, and Respondent was within its rights not to hire a third shift, if it saw no need for it and hired no one to work on it. Accordingly, I find no violation of the Act in these unilateral acts-the elimination of the named postions, the lead positions, and the third shift-all of which are decesions not to hire employees. However, concerning the remaining changes, most of which had never been mentioned to the employees before their hire and many of which, I find, were made long after employees wre employed albeit retroactive to July 1 , 1983, I conclude that Respondent has violated Section 8(a)(5) and (1) of the Act. No later than March 31 , 1983, Respondent made it perfectly clear that it intended to hire M&W's 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees withoug indicating that their terms and condi- tions of employment would be altered. That gave rise to Respondent's obligation to bargain collectively with the Union. Although I have found that there was no con- comitant obligation to hire employees in the same posi- tions as they held with M&W, once they were to be gov- erned by the same employment terms and conditions that they had before, unless their bargaining representative agreed otherwise. It is true that when employees were interviewed, they were shown different job duties, but in the short period they had to examine them, I find it natural that they would have assumed that they were going to be per- forming the same tasks as before. It is also true that when they were hired, they were asked to sign Respond- ent's unilaterally imposed rules of conduct, and I infer that they did. But Respondent by then, and long before, was bound to bargain collectively about any such changes and did not do so. In these circumstances, I concur with Machinists Y. NLRB, supra, 595 F.2d at 675 fn. 49, in which the court stated: When the employment offer and a subsequent an- nouncement of changed terms both occur prior to actual hiring, the announcement could deter some employees from accepting, notwithstanding that it is made some time after the successor first makes known his plan to retain incumbents. If, for exam- ple, the successor indicates that he intends to reem- ploy his predecessor's work force a month hence, and when employees arrive to submit applications 2 weeks later he informs them that substantially dif- ferent terms will be instituted, some incumbents may decide to look for work elsewhere. Neverthe- less, a duty to bargain with respect to the proposed changes could possibly be properly imposed on either of two grounds. For lack of sufficient time to rearrange their affairs, incumbents might be forced to continue in the jobs they held under the succes- sor employer, notwithstanding notice of diminished terms and perpetuation of the work force-, as well the representational status of the incumbent union- may be assured. Even were that less plain, a bar- gaining obligation may be essential to protect the employees from inposition resulting from lack of prompt notice Thus a prospective employment re- lationship may be presumed when a successor has boldly declared an intention to retain incumbents but has not concurrently proposed substantially re- duced benefits. And such an inference may be left undisturbed by revelation of employment terms after the employer's initial announcement but before actual hiring commences. The successor would have no legitimate complaint about mandatory bar- gaining in such circumstances because its necessity is a product of his own misleading conduct. Although under the Service Contract Act Respondent was not permitted to reduce its wage and fringe benefit levels, important issues were nonetheless involved, such as job security, altered by Respondent's unilaterally im- posed rules of conduct and seemingly destroyed by its rejection of arbitration. Respondent had a duty to bar- gain with the Union before making such critical changes. Indeed, in September 1982, when Dubay mentioned to the union representatives the possibility of greater utiliza- tion of employees, Dubay promised to resolve the prob- lem in consultation with the unions . My conclusion and recommended remedy will ensure that his promise is kept. THE REMEDY I conclude that the unfair labor practices found herein affect commerce within the meaning of Section 2(6) and (7) of the Act. I shall therefore recommend that Re- spondent cease and desist from violating Section 8(a)(5) and (1) of the Act, post an appropriate notice, and take certain affirmative action designed to effectuate the pur- poses and policies of the Act, including, on request, to bargain in good faith with the Union 12 and to rescind the unilateral changes of terms and conditions of employ- ment affecting Respondent's employees once they had been hired. I shall also recommend that Respondent make whole its employees for any loss of pay or other employment benefits which they may have suffered com- mencing on July 1, 1983, by reason of its unilateral changes of its employees' terms and conditions of em- ployment, as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). In addition, I shall also recommend that Respondent make contributions to the pension plan required by M&W's agreement with the Union, together with such additional amounts as may he required as a "make-whole" remedy, as prescribed by Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). On these findings of fact and conclusions of law and on the entire record,12 I issue the following recommend- ed14 ORDER The Respondent, E G & G Florida, Inc., Cocoa Beach, Florida, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain in good faith with Motion Pic- ture Laboratory Technicians, Local Union No 780, International Alliance of Theatrical Stage Employees and Moving Picture Operators of the United States and 12 M&W had recognized the Union as the representative of its employ- ees located not only at KSC but also at the Patrick Air Force Base, Flor- ida, and the environs Because Respondent became the successor of M&W only at KSC and because M&W employed no employees at the other locations , it is unnecessary to resolve the parties' disagreement about the scope of the unit It suffices for the purposes of this decision to limit the unit for which bargaining is ordered to the KSC location 13 The General Counsel moved to amend the official transcript in vari- ous respects There being no opposition, the motion is granted and the transcript is amended accordingly 14 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses E G & G FLORIDA, INC. 455 Canada, AFL-CIO, by unilaterally changing the job de- scriptions of employees, changing from a 15- minute washup period for employees in certain job classification to no washup time policy, changing group life and health plans, eliminating seniority rights except for purposes of vacation and sick leave accrual and as a tie-breaker in the event of equal merit and qualifications, changing the hours of the second shift, failing to contribute to the union pension plan, instituting new rules of conduct, changing the manner in which overtime is assigned, changing the manner in which vacations and other al- lowable absences are accrued, and eliminating the formal grievance prodedure, or changing any other terms or conditions of employment contained in the collective- bargaining agreement effective on February 15, 1982, be- tween the Union and McGregor & Werner, Inc., without notifying, consulting, or bargaining with the Union as the exclusive representative of its employees in the fol- lowing unit which is appropriate for collective bargain- ing: All documentation, reproduction, and publication service employees employed by E G & G Florida, Inc. at the John F. Kennedy Space Center in Cocoa Beach, Florida. In any like or related manner interfering with, restrain- ing, or coercing 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) On request, rescind the above unilateral changes until such time as the Respondent negotiates in good faith with the Union to agreement or impasse. (b) Make contributions to the pension plan as required by the above collective-bargaining agreement, to be computed as described in the remedy section of this deci- sion (c) Make whole the employees in the above unit for all other losses they may have suffered as a result of Re- spondent's unilateral changes, with interest thereon, to be computed as described in the remedy section of this deci- sion. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its John F. Kennedy Space Center place of business copies of the attached notice marked "Appen- dix." i s Copies of the notice, on forms provided by the Regional Director for Region 12, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately on receipt and 18 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 Nation- al 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 " maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act other than those found herein. 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 violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT refuse to bargain in good faith with Motion Picture Laboratory Technicians, Local Union No. 780, International Alliance of Theatrical Stage Em- ployees and Moving Picture Machine Operators of the United States and Canada, AFL-CIO, by unilaterally changing the job descriptions of our employees , chang- ing from a 15-minute washup period for our employees in certain job classifications to no-washup -time policy, changing group life and health plans, eliminating seniori- ty rights except for purposes of vacation and sick leave accrual and as a tie-breaker in the event of equal merit and qualifications , changing the hours of the second shift, failing to contribute to the Union 's pension plan, in- stituting new rules of conduct, changing the manner in which overtime is assigned, changing the manner in which vacations and other allowable absence are ac- crued, and eliminating the formal grievance procedure, or changing any other terms or conditions of employ- ment contained in the collective-bargaining agreement ef- fective on February 15, 1982, between the Union and McGregor & Werner, Inc., without notifying , consulting, or bargaining with the Union as the exclusive representa- tive of our employees in the following unit which is ap- propriate for collective bargaining: All documentation, reproduction, and publication service employees employed by E G & G Florida, Inc. at the John F . Kennedy Space Center in Cocoa Beach, Florida. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL, on request, rescind the above unilateral changes until such time that we can negotiate in good faith with the Union to agreement or impasse. 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make contributions to the pension plan as re- WE WILL make whole our employees in the above unit quired by the above collective-bargaining agreement. for all other losses they may have suffered as a result of Respondent's unilateral changes, with interest E G & G FLORIDA, INC.