Sewell-Allen Big Star No. 52

1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sewell-Allen Big Star, Inc., No. 3 d/b/a Sewell- Allen Big Star No. 52 and United Food & Com- mercial Workers, Local 1529, AFL-CIO-CLC. Case 26-CA-11018 23 July 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 24 February 1986 Administrative Law Judge Philip P. McLeod issued the attached decision.' The Charging Party filed exceptions and a support- ing brief. 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 brief and has decided to affirm the judge's rulings, fmdings,2 and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. 1 The judge refers to the Respondent as Sewell-Allen Big Star, Inc. d/b/a Sewell-Allen Big Star No. 52 in the caption on his decision, in his finding of facts under jurisdiction, and in his first conclusion of law. The Respondent should be listed as Sewell-Allen Big Star, Inc., No . 3 d/b/a Sewell-Allen Big Star No. 52. f The Charging Party has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive law judge's credibility resolutions unless the clear preponderance 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 re- versing the findings. The judge inadvertently stated that Stafford's demeanor and lack of spontaneity indicated that Liles' testimony was rehearsed. The judge was obviously referring to Liles' demeanor and lack of spontaneity. Margaret Guill Theiner, Esq., for the General Counsel. Howard S. Linty, Esq. (Kullman, Inman, Bee & Downing), of New Orleans, Louisiana, for the Respondent. Deborah Godwin, Esq. (Gerber, Gerber & Agee), of Mem- phis, Tennessee, for the Charging Party. DECISION STATEMENT OF THE CASE PHILIP P. McLEOD, Administrative Law Judge. I heard this case on 29 and 30 July and 17 and 18 Septem- ber 1986 in Memphis, Tennessee. The charge in this case was filed on 8 February and amended on 13 March 1985. On 12 March 1985 a complaint and notice of hearing issued, which was later amended on 3 May. The com- plaint, as amended, alleges, inter alia, that Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act). In its answer to the complaint, Respondent admitted certain allegations, including the filing and serving of the charges, its status as an employer within the meaning of the Act, the status of United Food & Commercial Work- ers, Local 1529, AFL-CIO-CLC as a labor organization within the meaning of the Act, and the status of various individuals as supervisors and agents of Respondent within the meaning of Section 2(11) of the Act. Re- spondent denied having engaged in any conduct that would constitute an unfair labor practice within the meaning of the Act. At the trial, all parties were repre- sented and afforded full opportunity to be heard, to ex- amine and cross-examine witnesses , and to introduce evi- dence. Following the close of the trial, all parties filed timely briefs with me, which have been duly consid- ered.' On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION Sewell-Allen Big Star, Inc., d/b/a Sewell-Allen Big Star No. 52 is, and has been at all times material, a cor poration with an office and place of business located in Collierville, Tennessee, where it is engaged in the retail grocery business. Respondent purchases and receives at its Collierville, Tennessee facility products, goods, and materials in excess of $50,000 annually from points locat- ed outside the State of Tennessee. Respondent's gross revenues exceed $500,000. Respondent is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION United Food & Commercial Workers, Local 1529, AFL-CIO-CLC is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Information and Contentions of the Parties This case involves a grocery store located in Collier- ville, Tennessee, known as Big Star No. 52. Prior to Jan- 1 Briefs were originally due to be received on 23 October. Pursuant to requests by Respondent, the due date for briefs was extended first to 13 November and later to 25 November . The brief for the General Counsel was mailed to this office by regular mail and to the other parties by certi- fied mail. It was received by the Charging Party and Respondent on 25 and 26 November 1985, respectively The General Counsel 's brief ad- dressed to this office was never received. Following an inquiry by this office, the General Counsel supplied me with a copy of that brief, which I received on 15 January 1986, accompanied by photocopies of the return receipts for the briefs mailed to the Charging Party and Respondent. The brief is dated 22 November and contains a certificate of service showing that it was mailed to me, the Charging Party, and Respondent on that day. Having considered these facts, I conclude that the brief of the Gen- eral Counsel would have been received by this office in a timely fashion but for actions beyond its control Accordingly , I have decided to re- ceive the brief of the General Counsel as timely 280 NLRB No. 137 SEWELL-ALLEN BIG STAR NO. 52 uary 1985, this store was owned and operated by Whit- ney Chambers. In January, Chambers sold the business as a going concern to Sewell-Allen Big Star, Inc., No. 3, a corporation owned jointly by Lex Sewell and Dan Allen. Chambers employed approximately 60 nonsupervi- sory employees and 8 management employees. Cham- bers' employees in the grocery section were not repre- sented for purposes of collective bargaining , but the five employees in the meat department were represented for purposes of collective bargaining by the Union . A collec- tive-bargaining agreement existed between Chambers and the Union, which was due to expire on 9 November 1985. The complaint alleges that Respondent has continued the employing entity and is a successor of Chambers; that the Union has requested Respondent to recognize and bargain with it as the representative of its employees in the meat department ; that Respondent has refused to recognize and bargain with the Union ; that Respondent refused to hire four of the five employees working in Chambers' meat department because they were repre- sented by the Union and to avoid a bargaining obligation with the Union; and that but for its refusal to hire these employees to avoid any bargaining obligation, Respond- ent would have employed in its own meat department a majority of employees who had previously worked for Chambers, thereby making Respondent a successor to Chambers with a resulting obligation to recognize and bargain with the Union. Respondent denies that it failed to hire a majority of Chambers' meat department employees to avoid succes- sorship status, which would result in it having to recog- nize and bargain with the Union . Respondent contends that it failed to hire two of the four for reasons related to their work, including recommendations Respondent re- ceived from others, and that it did not hire the other two simply because they did not apply for and seek work with Respondent when it took over from Chambers. Re- spondent argues that because it did not hire a majority of employees from the bargaining unit at Chambers for rea- sons which are nondiscriminatory , Respondent cannot be found to be a successor to Chambers and it therefore has no duty to recognize and bargain with the Union as the exclusive collective-bargaining representative of its em- ployees in its meat department. As described in full below, I find that Respondent 's reasons for not hiring these individuals were nondiscriminatory and, as a result, Respondent is not obligated as a successor to recognize and bargain with the Union as the exclusive collective- bargaining representative of employees in its meat de- partment. B. Chambers' Relationship with Malone & Hyde, Inc. Chambers operated Big Star No. 52 pursuant to a supply agreement with Malone & Hyde , Inc., a large food wholesaler. Chambers subleased the building from Malone & Hyde, Inc. and, according to Chambers, there was a written franchise agreement between him and Malone & Hyde, Inc. Malone & Hyde was Chambers' primary supplier of all grocery products , including both dry groceries and perishables . Chambers also used a number of other services offered by Malone & Hyde, 1245 Inc., including accounting, advertising, and financial services. Malone & Hyde was the primary holder of all Chambers' fixture and equipment notes. Malone & Hyde also provided Chambers with property and casualty in- surance. C. Respondent and Its Relationship with Malone & Hyde, Inc Sewell-Allen Big Star, Inc., No. 3 is a corporation owned jointly by Lex Sewell and Dan Allen. It was ap- parently formed to purchase and take over the operation of Chambers' store. Sewell and Allen are also joint owners of two other Big Star grocery stores in the Mem- phis area. In addition, Sewell is the sole owner of certain other grocery facilities in the Memphis area. Malone & Hyde is the primary supplier of all grocery items for the three Big Star stores operated by Sewell and Allen. Sewell and Allen testified that there is no written fran- chise agreement between it and Malone & Hyde regard- ing use of the Big Star name. Respondent acknowledges, however, that it utilizes many of the same services of- fered by Malone & Hyde that were used by Chambers. Sewell testified that Respondent utilizes accounting serv- ices to provide profit-and-loss statements and to provide information concerning the reporting of sales tax. Re- spondent utilizes coordinated advertising with other Big Star stores through Malone & Hyde. Respondent, like Chambers, subleases the Collierville store from Malone & Hyde. Malone & Hyde also provides Respondent with property and casualty insurance. Certain significant em- ployee benefits, however, including health coverage and a pension plan, are not secured through Malone & Hyde but rather are purchased and operated independently by Respondent. D. The Sale by Chambers to Respondent In November 1985 Chambers became interested in sell- ing his store . Chambers informed Leonard Kay, division manager of Malone & Hyde, Inc. Kay, in turn , informed Sewell and Allen that Chambers wanted to sell his store, and negotiations began toward that end. Chambers re- called that he had approximately three conversations with Sewell and Allen by telephone . The first took place in December with Allen. Chambers could not recall the date of the second conversation, but it too was a conver- sation with Allen. The third conversation was between Chambers and Sewell . Sewell and Allen were provided information by Malone & Hyde concerning profits and losses of Chambers' store. On 26 December 1984, Sewell, Allen, and Chambers met at the offices of Malone & Hyde and executed a written purchase agreement for the sale of Chambers' store to Sewell and Allen. This pur- chase agreement was drafted and typed by Malone & Hyde. Present at the 26 December meeting in addition to Sewell, Allen, and Chambers were Peter Pettit, house counsel for Malone & Hyde, Leonard Kay, and Ken Kenworthy, corporate attorney for Sewell and Allen. Chambers testified that there were two meetings with Sewell and Allen before the sale closed. He could not recall the date of the first meeting, but estimated it to be 15 to 20 days before closing. According to Chambers, 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this first meeting occurred at the offices of Malone & Hyde, and Leonard Kay had been present. Chambers may well have been referring to the meeting on 26 De- cember. Chambers testified that in none of the conversa- tions preceding the 26 December meeting nor during the 26 December meeting itself was there any discussion re- garding individual employees who had worked for Chambers. The purchase agreement, signed in the meet- ing on 26 December, provides in pertinent part: Employees. Seller agrees to terminate its employees prior to inventory date [27 January 1985]. Buyer shall not be obligated to employ any of seller's present or former employees, nor shall buyer be ob- ligated to continue in effect any group insurance, employee retirement or welfare plans which it has in effect on the closing date. According to the terms of the purchase agreement, clos- ing was scheduled to take place at 1 p .m. on 28 January 1985 at the offices of Malone & Hyde. Sewell and Allen both freely admitted that at some point prior to the closing date they had a telephone con- versation with Howard Linzy, Esq., Respondent's coun- sel, regarding the legal effect of hiring Chambers' bar- gaining unit employees. Both admit that at the time they spoke to Linzy, they knew Chambers' employees in the meat department were represented by the Union . Neither Sewell nor Allen knew the date of their conversation with Linzy, but Sewell placed the conversation sometime in December 1984. According to Sewell, Linzy told him that Respondent could hire anyone they wanted to or not hire anyone they wanted to, that it was strictly up to them. Linzy also told Sewell "What was considered a unit in that store and that if we hired a majority of the unit there was a possibility that we might have to negoti- ate" with the Union. At some point in time not long after the purchase agreement was signed on 26 December, Allen requested Chambers to supply Respondent with a list of Chambers' employees and their wage rates . Soon after that, a meet- ing was arranged by Leonard Kay between Chambers and Respondent at Malone & Hyde 's Southhaven, Missis- sippi warehouse facility on the afternoon of 24 January 1985. According to Chambers, whom I found to be a credible witness, Kay asked Chambers to bring two blank pieces of paper and a copy of his collective-bar- gaining agreement with the Union to the meeting. Cham- bers did so. The meeting on 24 January consisted of two fairly distinct parts . During the first part, Sewell and Allen met with Chambers, and together the three dis- cussed the list of Chambers' employees. The second part of the meeting included Sewell, Allen, Chambers, and Linzy, Respondent's counsel. In this portion of the meet- ing, Chambers prepared a letter to his employees inform- ing them of the store having been sold to Respondent and of their impending termination. At the same time, Respondent drafted a letter to employees inviting them to apply for positions with it. Linzy apparently oversaw the wording of both letters . Although there is some dis- agreement on this, which I consider to be a minor point, it appears that in the second part of this meeting the par- ticipants also discussed obligations owed by Chambers to employees such as pension and health and welfare pay- ments. Chambers acknowledges that he brought a copy of the collective-bargaining agreement with him to this meeting. He testified, however, that there was no specif- ic discussion regarding the contract and that he simply left a copy of the contract at the meeting. It appears probable that Chambers gave a copy of the collective- bargaining agreement to Linzy in the second part of the meeting on 24 January, but that any discussion regarding the contract was minimal . The main purpose of the second portion of this meeting was for Chambers and Respondent to draft letters to employees advising them of Chambers' sale to Respondent. Much controversy surrounds this meeting on 24 Janu- ary. After 2 days of hearing on 29 and 30 July 1985, this case was adjourned so that the General Counsel could initiate proceedings to enforce a subpoena , which it had served on Chambers. Sometime after selling the store to Respondent, Chambers moved from Memphis to Kansas City. Chambers did not appear for the hearing on 29 July, although subpoenaed. After the subpoena was en- forced, the hearing reconvened on 17 September and concluded on 18 September . Chambers was on the wit- ness stand almost the entire day on 17 September. All parties agree that Chambers' testimony is at times both confused and confusing . At times his testimony is self- contradictory, or appears to be so at first blush. It was Chambers who revealed that a meeting had taken place between him and Respondent on 24 January . During their testimony in the prior days of hearing, neither Sewell nor Allen had mentioned that meeting . In his tes- timony, Chambers consistently maintained that during the discussion between him, Sewell, and Allen regarding the list of his employees, he made no recommendations to Sewell or Allen about whether to hire any of his em- ployees. Nevertheless, Chambers described at length and in some detail comments and evaluations he made of var- ious employees for the benefit of Sewell and Allen. Re- spondent takes the position that it relied in large part on some of these evaluations in deciding not to hire Lane and Liles. The General Counsel and the Charging Party question whether this meeting took place at all as well as all the accounts of it, which have been given by Cham- bers, Sewell, and Allen. During the investigation of this case, the investigating Board agent secured an unsigned affidavit from Cham- bers, which read in part: I had only one meeting in person with Sewell and Allen. . . . No employment issues were dis- cussed.... I recall that Allen asked if all the em- ployees were good, and I responded that I thought the employees were all good.... I said I thought the fairest way to do it would be for Allen to just interview all the employees to see which ones he wanted to keep. . . . Allen did not ask for any spe- cific recommendations concerning any particular employee, and I did not make any comments about any particular employees. SEWELL-ALLEN BIG STAR NO. 52 I never told Sewell or Allen about any problems I had with any particular employees, nor did I ever make any recommendations to them regarding the hiring of any employees. Later, apparently in preparation of this case for trial, the General Counsel requested certain information from Chambers. Chambers wrote the General Counsel on 6 June, stating in part: As for personnel information, on the job perform- ance, work and/or recommendations for or against employment or continued employment of all em- ployees of Chambers Big Star No. 52 to anyone on any level, there was no recommendation made. I do not know how they received their information or if they did, or from whom, but I know I did not. The only material I provided was payroll ac- counts, and all the company's Big Star No. 52 had service contracts with, such as equipment, etc. I for- warded most all of the information to Malone & Hyde. The only information I did turn over personally was just a complete list of everyone that was em- ployed and their titles and wage scale. After the General Counsel obtained an order requiring Chambers to obey the subpoena previously served on him and to testify in this proceeding, Chambers met with an agent of the Board's Kansas City office. At that time, Chambers and an attorney, which Chambers brought with him, reviewed the earlier unsigned affidavit, made some corrections and additions to it, and signed the affi- davit. The portion of the unsigned affidavit quoted above remains substantively intact in the signed affidavit. On the morning of 17 September, shortly before this hearing was to reconvene, Chambers first advised the General Counsel of the fact that he had discussed his employees individually with Sewell and Allen prior to their taking over the store. Obviously, the General Counsel and the Charging Party argue that Chambers' description of these comments should not be credited. I am confronted here with what is fortunately a rarity: a reluctant, if not recalcitrant, witness who substantially alters, if not abrogates, an earlier signed statement who I am, nevertheless, convinced testified truthfully to the best of his ability before me. During his testimony, there was no question whatever in my mind that Chambers perceived any reason or need to protect or promote Re- spondent. It became apparent from observing Chambers that he had ignored the earlier subpoena not because of some identity with Respondent, but out of a belief that this proceeding did not involve him, and he did not want to get involved if at all possible . To characterize Cham- bers as anything other than a disinterested third party is both unreal and unfair . Even after the General Counsel had obtained enforcement of the subpoena requiring Chambers to appear and testify, Chambers met with an agent of the Board and signed the earlier unsigned affida- vit. Chambers had no obligation to do this, and if his in- terest was to promote or protect Respondent , he could easily have refused. 1247 While Chambers operated Big Star No. 52, he contrib- uted to a fund along with other owners of Big Star stores in the Memphis area, which was administered by Malone & Hyde, and from which they jointly retained the law firm representing Respondent for purposes of ob- taining legal advice on labor relations issues . Chambers testified before me that in June or July 1985, he was con- tacted by an attorney from this firm named Crutcher. Chambers testified that it was during this conversation he realized that the firm no longer represented him. Chambers testified that Crutcher tried to lead him into some questions with respect to the instant case, and he tried not to be led into any questions. I am firmly con- vinced that Chambers was telling the truth, and I consid- er it significant evidence of the fact that Chambers has remained nothing more than a disinterested third party. In the final analysis, I conclude that Chambers is a truth- ful witness and that the vast majority of his testimony is accurate if taken in the proper context and , for the most part, if taken literally . From having observed Chambers, I am also convinced that to some extent, his recollection of the meeting on 24 January was refreshed even as he testified. With these observations in mind, I conclude that the following transpired at this meeting on 24 Janu- ary. Chambers, Sewell, and Allen had with them the copy of the list of employees which Chambers had been asked to supply. Sewell and Allen asked Chambers to tell them what he could about the abilities, performance , and work record of Chambers' employees. Using the list of em- ployees which he had supplied, Chambers discussed most, although not all, his employees. I credit Chambers that looking at this list of employees on cross-examina- tion triggered his memory of what had been said during this meeting about the various individual employees. Sewell and Allen testified that each full-time employee was discussed. Chambers, however, stated that due to the number of employees and his inability to comment on the capabilities and performance of certain employees, not everyone was discussed individually. I find Cham- bers' testimony in this regard to be more accurate. I find that Chambers commented on the abilities and perform- ance of every full-time employee for whom he was able to do so, and that this constituted the vast majority of employees, including employees in the meat department as described below. Some time was also spent in discuss- ing the night stock crew, including part-time employees in that department. Chambers testified repeatedly that he did not make any recommendations to Sewell or Allen regarding any employee. I believe Chambers' testimony on this point, and I am convinced that in order to be un- derstood, this assertion must be taken literally. Chambers did not tell Sewell or Allen that he did or did not rec- ommend any individual employee. Instead , Chambers de- scribed what he perceived as the abilities and shortcom- ings of each employee, and he left it to Sewell and Allen to decide whether to hire any or all of those individuals. According to Chambers, he discussed approximately 24 of his 29 full-time employees. Chambers could not recall whether he discussed the work performance of five em- ployees on the list. Chambers is uncertain whether he 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commented on Lane. Chambers testified at one point that he did not. Chambers testified that Sewell and/or Allen had told him that they already had previous knowledge of Lane, and therefore they did not discuss Lane. Else- where, Chambers testified that he "believes" he made a statement about Lane, Meat Department Manager Dee James, and Linda Sowell. Chambers told Sewell and Allen that the performance of both Meat Department Manager Dee James and Linda Sowell was excellent. Chambers was asked by Sewell and Allen about Liles' work record. Chambers responded that Liles had some- what of an attendance problem, suggesting that he was somewhat lazy. Chambers explained, "Not from the point of missing but to he extent that maybe if he would cut a finger, or something, he would extend his leave of absence longer than it was necessary to be off." Accord- ing to Chambers, he told Sewell and Allen that Liles also lacked somewhat in "his quality as a journeyman butcher at that time." Allen's testimony agrees with that of Chambers concerning comments about Liles. Allen testified Chambers said that Liles should be a qualified journeyman meatcutter, but that he could not cut meat like a journeyman meatcutter should be able to do. Ac- cording to Allen, Chambers described James and Sowell as both being excellent. Allen, like Chambers, could recall no conversation regarding Larry Washington. Allen testified Chambers stated that Ronny Smith was an excellent meatcutter. Regarding Lane, the testimony of both Sewell and Allen differs from that of Chambers. According to Allen, Chambers said that Lane's produc- tion was very slow. Sewell testified that Chambers made the statement, "If I was buying the store, I wouldn't hire him." This is discussed in greater detail below. On the following day, 25 January, Chambers posted the two letters to employees which had been drafted at the meeting on the afternoon of 24 January. Chambers' letter to employees advised them of the sale and of the fact that Respondent would be hiring its own personnel to staff the store. Chambers told employees that Re- spondent would be at the store on 26 January to accept applications and interview employees who might want employment with Respondent. Respondent's letter in- formed employees that applications for employment would be accepted on 26 and 27 January between 9 a.m. and 6 p.m. Respondent assumed operation of the store on sched- ule as called for in the purchase agreement, and it com- menced operation on 28 January 1985. On that same day, the sale of Chambers Big Star No. 52 to Respondent was closed at the offices of Malone & Hyde as provided for in the purchase agreement. In ad- dition to Chambers, Sewell, and Allen, the closing was attended by Peter Pettit and Gerald Lewis, both of Malone & Hyde. About 31 January and 8 February 1985, the Union re- quested Respondent to recognize it as the exclusive col- lective-bargaining representative of the employees in Re- spondent's meat department. Respondent has refused, consistently maintaining that it is not a successor to Chambers and has no bargaining obligation because it did not hire a majority of employees represented by the Union and because the meat department is no longer an appropriate bargaining unit. E. Applications and Interviews of Respondent's Employees Respondent received job applications from 85 individ- uals between 26 January and 4 February 1985. Respond- ent hired 62 individuals. Seventeen former employees of Chambers were not hired by Respondent. Of these, 13 individuals, including Sowell and Washington, did not apply. Of the four former employees of Chambers who did apply and were not hired by Respondent, two were journeymen meatcutters, Lane and Liles, while the other two were from elsewhere in the store. In early January 1985 Allen met with Meat Depart- ment Manager James at a local restaurant in Collierville. As Allen testified, the purpose of this meeting was to get as much information as possible to find out about the possibilities which the store offered. At this meeting, in- dividual employees were not discussed. Approximately 3 or 4 days later, Allen had a second conversation with James by telephone in which employees were discussed. Allen asked James his opinion of the qualifications of employees working in the meat department. According to Allen, whom I credit, James told Allen in effect that Lane was not the type of employee whom Respondent should hire, that Lane suffered from low productivity. Concerning Liles, James told Allen that despite his status as a journeyman meatcutter, Liles was not really capable of performing as a journeyman. On 26 January, Respondent conducted a more formal job interview with James. James did not actually fill out an employment application with Respondent until 1 or 2 days later. James testified that he was again asked by Allen for recommendations regarding meat department employees. Allen's testimony conflicts somewhat with James' in that Allen stated he did not discuss meat de- partment employees with James during this interview. However, I do not find this significant, for both Allen and James testified credibly and without qualification that either on or before 26 January Allen asked James for recommendations regarding meat department em- ployees. There appears to be some minor confusion by Allen whether these recommendations occurred in the formal interview on 26 January or whether they oc- curred in conversations preceding that which have al- ready been described. Further, Allen testified he in- formed James during the interview on 26 January that Lane and Liles would be replaced, but that they would be interviewed anyway if they desired. James recom- mended that Respondent hire both Sowell and Washing- ton. At the conclusion of his interview, Sewell and Allen asked James to take applications back to the meat depart- ment and give them to the employees in that department. When he returned from his interview, James brought ap- plications back with him. James placed the applications on a table in the office of the meat department. James first testified that he told each person in the department to take an application, fill it out, and they would be called for an interview. James then corrected himself and SEWELL-ALLEN BIG STAR NO. 52 testified he might have told the employees they were ex- pected to come forward to the front of the store for an interview. Later, when James was asked about this again, he testified that he could not recall whether he told em- ployees they would be called for an interview or wheth- er they were expected to seek out an interview on their own. For reasons explained below regarding Sowell and Washington, I do not find this determinative. The General Counsel argues that Respondent attempt- ed to discourage employees in the meat department from applying for work as a result of a statement allegedly made by James to employees to the effect that it would be useless or a waste of time for them to apply with Re- spondent. I fmd the testimony of the General Counsel's witnesses on this point to be strained, inconsistent, and contradictory. Lane testified that Liles requested James to get applications for employees in the meat department, and that in response to this request James told Liles that he would get them but that he doubted "it would do any good to make out an application." When Liles testified, he was asked how it happened that James got applica- tions for the employees in the meat department . Liles re- plied, "I don't know, he just went up front and acquired them." Liles testified that after James brought applica- tions to employees in the meat department, "We asked him what was going on, about our contract and, you know, just the basic information about what was fixing to happen as far as the change of hands ." Liles testified at that time James said "to just fill out the applications, to turn them in and see what happens ." According to Liles, "We asked him and he said he didn't think it was going to do much good." Liles claims that James made this statement during a group conversation in which "the whole meat department employees, Ronny, Linda, Roy, were there." Lane, however, claimed that the statement was made during a conversation he simply overheard be- tween James and Liles. Lane claims that James' statement was overheard by Linda Sowell who was standing only 3 feet away from James at the time. Sowell testified to this same alleged statement by James. In describing what happened when James brought applications to the meat department, she did not testify, as Liles had, that James stated it would not do much good to apply. In fact, nothing in her de- scription of the conversation at that time could be con- strued as an attempt to discourage employees from ap- plying for work with Respondent . Instead, Sowell de- scribed a private conversation between her and James when no one else was around in which Sowell alleges that the following occurred: He said that we could-I could fill it [the applica- tion] out but I wasn't going to be kept, you know. And I would be interviewed if I filled it out, I would be interviewed. I did think I was going to be interviewed but I can't say that he definitely said that I wasn't going to be hired but that he let me know, you know, that I wasn't in a roundabout way. He wouldn't pinpoint it. I tried to get him to say, you know, one way or the other, but he wouldn't. [Emphasis added.] 1249 As is already evident, the testimony of Liles, Lane, and Sowell is inconsistent and even contradictory. Liles and Sowell may well have attempted to corner James and get him to commit himself to assure them that they would be hired by Respondent. James may well have been reluctant to make such a commitment, particularly because he was not in a position to make the commit- ment himself and because he had already been told by Respondent that it was not planning to hire Lane or Liles; and from James' reluctance Liles, Lane, and Sowell may have independently concluded that there was some question about whether they would be hired by Respondent. James, however, credibly denied ever telling any employees in the meat department that there was no use for them to submit applications. James also testified, "The day the applications were handed out I urged each one to complete the application and be inter- viewed." I credit James, and I find that James did not tell Liles, Sowell, or any other employee in the meat de- partment that there would be no point in applying for a job with Respondent. I find that James in fact encour- aged employees to submit applications to Respondent. The General Counsel argues that as part of a predeter- mined plot not to hire a majority of employees from the meat department, Respondent did not call employees from that department for interviews . Meat department employees testified that throughout the day on 26 and 27 January they heard employees' names being called on the store intercom to come forward for interviews. It is apparent from the record, however, that meat depart- ment employees were merely surmising that the purpose for which employees were called on the intercom was for interviews. Throughout the normal workday, the intercom is used extensively to call employees from one part of the store to another. It is frequently used to call employees to the front of the store to act as cashiers or to assist in bagging merchandise. I fmd the record evi- dence wholly insufficient to prove that other employees working for Chambers were specifically called on the intercom for interviews. Moreover, nothing prevented meat department employees from seeking out an inter- view, either during the workday while they were at work or on their own time. Sewell and Allen set up an area for interviewing near the front of the store on 26 and 27 January. Accordingly, I place no significance on the fact that employees from the meat department were not individually invited to come forward for interviews with Respondent. F. Roy Lane Lane has worked as a meatcutter for 37 years. He had been employed by Chambers for slightly more than 1 year when Chambers sold to Respondent . Respondent states that it decided not to hire Lane because it had al- ready formed a negative impression of Lane based on a job interview Allen had with Lane a few years ago and because of recommendations from both Chambers and James that it not hire Lane. Allen testified that approxi- mately 2 years prior to Respondent's purchase of Cham- bers Big Star No. 52, Lane had been interviewed for a job at Big Star No . 189 in Memphis. Allen testified that 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the interview had been conducted in the upstairs office of the Hickory Hill Big Star No. 182 store. Lane denied that he had ever interviewed with either Sewell or Allen prior to Respondent's purchase of Chambers. Allen testi- fied that the interview with Lane occurred after Lane had worked at a store owned by Mel Hungate. Allen tes- tified that during the interview, he was not impressed with Lane and did not take an application from Lane. I was not impressed by Lane's denial that such an interview took place. I credit Allen over Lane. Hungate corroborated Allen that Respondent called Hungate to check on Lane's performance. If Allen had not inter- viewed Lane, there would be no reason for Hungate to have been called to check on Lane's performance. Hun- gate's testimony tends to make Allen's testimony more plausible. Further, Hungate testified credibly he told Re- spondent Lane had quit his job with Hungate because the meat department was having distribution, sales, and profit problems which were in part due to Lane's per- formance. Based on the mutually supportive testimony of Allen and Hungate, I conclude that Allen did indeed interview Lane as he testified sometime prior to Re- spondent's purchase of Chambers. Further, I conclude that, based on that interview and Hungate's report to Re- spondent, Respondent had concluded that Lane was not a desirable employee. Allen testified that in addition to having formed his own negative opinion about Lane based on the earlier interview and report from Hungate, Respondent also re- ceived negative reports from both Chambers and James. As described above, Sewell testified that Chambers made the statement, "If I was buying the store, I wouldn't hire him [Lane]." As I have already noted, Chambers' testi- mony regarding comments he made about Lane was in- consistent. Chambers testified at one point that he had not been asked about Lane and at another point that he was sure he had made some comment, but he could not remember what he had said. Sewell's testimony, on the other hand, was very definite and certain. I credit Sewell. I conclude Chambers is right that they did not discuss Lane in any detail because, as Chambers testified, Sewell and/or Allen told him they already had previous knowledge of Lane. Chambers did comment, however, "If I was buying the store, I wouldn't hire him." Fur- ther, James testified credibly and in total agreement with Allen that he had recommended to Respondent that Lane not be hired. In connection with Respondent's purchase of Cham- bers, Lane sought out Allen for an interview on the afternoon of 26 January. There is no contention that during this interview Allen said anything that would sug- gest an unlawful motive on Respondent's part for not hiring Lane. Lane in fact admits that during the inter- view with Allen, Allen told Lane that Respondent was not going to hire Lane because Respondent wanted to put its own crew in the store. According to Lane him- self, Allen said, "They felt they ought to put somebody in there they know could do the job." Rather than sug- gesting an unlawful motive, Allen's comments to Lane, as admitted by Lane himself, suggest Lane was not hired simply because Respondent perceived him as unqualified for the position. Considering the credible evidence, I conclude that from Allen's own negative impression of Lane from the earlier interview and the negative com- ments received from both Chambers and James, Re- spondent decided not to hire Lane based solely on his job performance and for reasons totally unrelated to the Union. G. Robert Liles Liles worked at Chambers Big Star No. 52 for ap- proximately 5 years. He served a union apprenticeship under the direction of Meat Department Manager Dee James. Respondent states that it decided not to hire Liles because of negative comments made about his ability by both James and Chambers. Sewell testified that he re- ceived a bad report about Liles from Chambers, that Liles was not as experienced as he should be, and that Liles was not as good a worker as he should be. As evi- denced by Chambers' testimony, described above, Cham- bers corroborates Sewell. As also discussed above, Allen testified that in a tele- phone conversation with Meat Department Manager James during January, they discussed the abilities of indi- vidual employees in the meat department. Allen testified credibly that James said, "[Liles] was young and inexpe- rienced and couldn't do the job of a meatcutter." James substantially corroborates Allen's testimony. According to James, whom I credit, he told both Sewell and Allen that Lane and Liles "were a little less than efficient." According to James, he also told Sewell and Allen that "Liles had problems comprehending certain things." It is apparent from the record that although Liles was given the title of a journeyman meatcutter by Chambers, and was paid accordingly pursuant to the collective-bargain- ing agreement between Chambers and the Union, Liles did not actually function as a journeyman meatcutter, nor did he have the qualification or experience to do so. Liles was used primarily to oversee and stock the smoked meat cases. It is clear from James' testimony that he was asked by Sewell and Allen for his recommenda- tions about employees to keep and changes to make in order to make the meat department more efficient. It is also clear that James recommended to Sewell and Allen that they not keep Liles. On the afternoon of 26 January, Liles approached Sewell and Allen and requested to be interviewed for a meatcutter position. Allen interviewed Liles. During the interview, Allen told Liles that he would not be offered a position. Liles claims that Allen said "he didn't think he was going to need us-need me." Liles continued: Well, he told me, you know , he told me that we did not know how to play ball the way his crew knew how to play ball and he wanted in a team that he knew could play ball the way he wanted them to play ball, you know, and we weren't qualified, he thought, to do the job. According to Liles, he then asked Allen if there was any way Liles could keep his job. Allen replied that there was not, that Respondent already had a crew to come in and work, that he was sorry, and that he did not need Liles' services. During Liles' testimony, I had the distinct SEWELL-ALLEN BIG STAR NO. 52 impression that Liles was making up or manufacturing evidence to support the General Counsel's case at two or three very critical points. This is one of those points. I do not credit Liles that Allen told him Liles and other employees in the meat department would not be hired because they did not know how to "playball." Liles admits that Allen told him he was not going to be hired because Allen aid not think he was qualified to do the work. I am convinced that this is the only reason Allen gave for not hiring Liles. Moreover, I conclude that it is in fact the reason Respondent did not offer a position to Liles. Prior to Liles' interview with Allen, Allen had been told by both Chambers and James that Liles was not a qualified journeyman meatcutter. James had recom- mended that Liles not be hired. I conclude that it was on the basis of these negative reports and recommendations about Liles that Respondent decided not to hire Liles. H. Linda Sowell and Larry Washington Linda Sowell worked for Chambers as a meat wrapper for more than 6 years at the time Chambers sold to Re- spondent. For the last 2 years, Sowell worked as the only meat wrapper in the department. In addition to wrapping meat, Sowell trayed meat, made cube steaks, took inventory, and worked the smoked meat trays. Sowell was considered a good employee. Larry Washington had worked for Chambers only about 3 months when the store was sold to Respondent. Washington apparently worked a shift that began in the late afternoon at approximately 4:30 p .m. The record re- flects little more about his work duties or capabilities, but it is apparent that he must have been considered a good employee because James recommended to Re- spondent that he be hired. The General Counsel contends that both Sowell and Washington applied for work with Respondent but were not hired. Respondent states that it never received appli- cations from Sowell or Washington, and that if it had, it would have hired both individuals. As might be expect- ed, considerable record evidence is devoted to the appli- cations of Sowell and Washington. When James returned from his interview with Sowell and Allen on the morning of 26 December, he brought with him applications for other employees in the meat department. Sowell testified initially that she was alone, behind the meat counter, when James handed her an ap- plication. Later in her testimony, Sowell stated that she was with Smith, Liles, and Lane when she received her application from James. Sowell testified that James told all four employees that they could use James ' office to sit down and fill out the applications immediately. Accord- ing to Sowell, they did so, and the applications were left lying together on the desk in James' office. Later that morning, Liles moved the applications from the desk to a table by the timeclock and coffee machine in the cutting room. Liles testified he told James two or three times that Assistant Store Manager Burcham had told him the applications had to be turned in at the front of the store, but James never offered to take them to the front of the store for the employees. It is unclear why Liles might think that James would assume the burden of returning the applications. In any event, Liles testified that during 1251 his lunchbreak he took the stack of applications to the front of the store and gave them to Assistant Store Man- ager Burcham. Regarding this, Liles testified: Q. [By General Counsel] Which applications did you take to the front, Mr. Liles? A. [By Liles] I took Ronny Smith's, Linda Sowell's, Roy Lane's, and myself's applications. Q. And what did you do with them? A. I gave them to Randall Burcham up front. Q. And he's the assistant store manager? A. Yes, ma'am. I handed the applications to him and he looked through all of them, you know, to see if they were all there and they were. He's the one, well, he told me that he was the one to receive the applications and he would give them to, you know, Mr. Sewell or Mr. Allen. Q. Did he tell you what else would happen after he got the applications, did he give you any other instructions? A. Yes, ma'am. He said that he would come back to the market and get us when they were ready to see us. Liles impressed me as sometimes stretching the truth and sometimes making up testimony when he thought the need existed . Both his demeanor and his testimony left me with the distinct impression that he was trying all too hard to fill gaps that otherwise existed in the General Counsel's case. Burcham denied even receiving the appli- cations from Liles as well as telling Liles that employees would be called to the front of the store for interviews. I do not believe Liles that Burcham looked through appli- cations that Liles might have given to Burcham, nor that Burcham said he would come back to the meat depart- ment and get employees when Sewell and Allen were ready to see them. Liles may well have given applica- tions to Burcham, but I am convinced that Burcham did not look through them and that Liles himself does not know which applications he may have turned in. If Bur- chain in fact received applications , I am also convinced that he did nothing more than add them to whatever other applications might have already been turned in by other employees. It is clear that Liles did not turn in Washington's ap- plication. Washington was scheduled to report to work at 5 p.m. on 26 January . He came to the store about 4:30 p.m. in order to fill out an application. Washington testi- fied that when he asked for an application at the front desk where applications were being taken, he was told that no more applications were being given out and that he should return the following week. Washington admit- ted that he was totally unable to identify who it was who told him this. In any event, when Washington re- ported to work in the meat department he learned that James had gotten him an application . Washington initial- ly testified that after he had filled out the application, he "gave it back to James." Washington continued: "He took it with his application and he say he was going to turn it in with his application . That's the last I've seen of the application." Later, Washington testified somewhat 1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD differently. Washington testified that after filling out the application, "I put it right there on the desk, right with his application." James credibly denied that he received Washington's application after it was completed. James testified that he does not know what might have hap- pened to Washington's application. I credit James. What- ever may have happened to Washington 's application, it is clear that James did not turn in the application, and there is no evidence that Respondent ever received an application from Washington. Sewell testified that Sowell and Washington were not hired solely because it did not receive applications from them. James candidly testified that he recommended to Sewell and Allen that both Sowell and Washington be hired. Sewell and Allen acknowledged with equal candor James' recommendation and state that Sowell and Washington would have been hired if Respondent had received applications from them . With only the limited reservation discussed below, I credit Sewell and Allen. Allen was asked by the General Counsel whether he received applications from employees prior to interviews he conducted with those employees. Allen replied, "They brought them in with them ." Allen was then asked again, "Did you receive any applications prior to the interview?" Allen replied, "I don't think so." Allen noted that he did not have any managers or assistant managers through whom he might receive applications, that at that time such people were employees of Cham- bers. Allen testified he did not receive any applications from employees through Chambers ' managers or assist- ant managers. In later testimony , Allen again admitted that he was not positive how he received the applica- tions of Ronny Smith, Liles, and Lane . Lane testified credibly that when he sought out Allen for an interview, Allen already had Lane's application in his possession. Exactly what happened to Sowell's application is un- known. I credit Respondent that neither Sewell nor Allen ever received applications from Sowell or Wash- ington. The limited reservation I have about Respond- ent's position is why Sewell or Allen did not seek out and solicit applications from Sowell and Washington in view of the fact that James had specifically recommend- ed that they be hired. It seems logical that in taking over an existing store, a buyer would specifically invite appli- cations from those employees who had been recommend- ed to it by name. The most plausible answer lies in the fact that during this 2-day period during which Respond- ent was taking applications from and interviewing Cham- bers' employees, Respondent was so busy interviewing employees that it did not have time to personally seek out and invite the applications. This is particularly plausi- ble because Respondent received applications from and interviewed approximately 50 of Chambers ' employees. There were 13 Chambers' employees who did not apply. The number of people being interviewed and the number of people who did not apply were both so large that Re- spondent may well not have had time to seek out and so- licit applications from individual employees. Moreover, my limited reservation about Respondent's position is considerably overshadowed by the questions that are raised by the fact that neither Sowell nor Washington ac- tively pursued their application by requesting an inter- view with Sewell or Allen. It is their lack of assertive- ness that has given rise to most of the troubling factual issues in this case. Ultimately, the General Counsel's case is based on a number of inferences that it would have me draw against the Respondent. Such inferences are neces- sary, however, only because of the lack of assertiveness on the part of Sowell and Washington in pursuing an ap- plication with Respondent. Under such circumstances, I believe it is both unwise and unfair to draw such infer- ences against Respondent unless the evidence convinc- ingly supports them. Such convincing evidence is simply not present in the instant case. The fact that meat depart- ment employees were not individually called for inter- views does not convince me of any unlawful intent. It is not clear that other employees were called by name for interviews. Sowell testified that she returned to the store on 28 January and spoke to James about her application. Rather than suggest that James evidenced some intent on Respondent's part not to hire Sowell, James told Sowell that she was needed . That presented a perfect opportuni- ty for Sowell to then approach Sewell or Allen personal- ly. However, she did not do so . Employees who sought out Sewell and Allen were accorded interviews. There is no reason whatsoever to believe that if Sowell or Wash- ington had pursued their applications and sought an interview that it would have been denied to them. Even Liles and Lane, whom Respondent had decided not to hire, were interviewed. The General Counsel asks me to infer that Sowell's and Washington's applications were conveniently mis- placed by Respondent in an attempt to avoid hiring a majority of Chambers' employees from the meat depart- ment. In short, Sowell and Washington failed to take the necessary and reasonable steps to express their interest in employment with Respondent. Both Sowell and Wash- ington knew that Respondent was interviewing prospec- tive employees, and nothing prevented either from ap- proaching Sewell or Allen personally. I credit Respond- ent that if it had received applications from Sowell or Washington, it would have hired them. Accordingly, I conclude that Respondent's failure to hire Sowell and Washington was not based on any unlawful predetermi- nation not to hire them to avoid having to recognize the Union. 1. Stafford's Alleged Statement Liles testified that during approximately May 1985 he returned to the Collierville store and spoke to manage- ment trainee Larry Stafford2 about Liles' employment situation. According to Liles, Stafford told Liles that he had known about Liles' termination the day before it oc- curred. Liles testified that Stafford told him Stafford heard managers talking in the office and had heard them 2 Stafford is responsible for the operation of the front end and mainte- nance of the store's appearance. Each evening from approximately 6 until 11 p.m., he is the person of highest authority in the store over other em- ployees. Neither the store manager nor the assistant store manager is reg- ularly present at this time. Stafford has the authority to discipline em- ployees; to send employees home, if necessary; and to authorize employ- ees to leave early. Stafford assigns work to employees in the store. I find Stafford to be a supervisor within the meaning of the Act. SEWELL-ALLEN BIG STAR NO. 52 say that Liles and others in the meat department would be terminated rather than hired by Respondent because of the Union. For reasons more fully described below, I find Liles' testimony more than a little suspect. During examination by counsel for General Counsel, Liles testified: Q. [By Ms. Theiner] And do you remember what you talked with Mr. Stafford about? A. [By Liles] Well, we were talking about the sit- uation with the job and that we were going to court in May, that I hated that it happened and Larry told me that he knew about it a day before, that he knew we were going to be terminated in the market. Q. What else did he say? A. He said that he was up in the office and heard it. Q. What did he say he heard? A. He heard that I was going to be terminated and a few other people in the market and he was in the office when he heard it. Q. Why were you going to be terminated? MR. LINzY: Objection. JUDGE McLEOD: Was anything else said and, if so, by whom, in your conversation with Mr. Staf- ford? A. Okay, sir, he told me that he knew about it a day before and that we were going to be terminated and that was basically everything that he said about the termination of our jobs, the day before the store was sold. Q. Do you recall anything he said as to your being terminated? A. Okay, we just talked , we just talked in the usual manner, Larry said, "Well, take care of your- self," and I, you know, I left shortly after that. I re- member him, we talking about the-him telling me about being terminated, that he knew about it, but the other stuff was just common, you know, talk Nothing considering [sic] much of nothing. [Emphasis added.] Obviously not satisfied with this answer, the General Counsel reexamined her witness as follows: Q. [By Ms. Theiner] Mr. Liles, when you talked with Mr. Stafford, what was the first thing that he talked to you about? A. [By Liles] About he was sorry that we'd lost our jobs. Q. And then what did he said [sic]? A. Well, I said I was too-what he said. Well, after I talked to him he said that he knew about it a day before the store was sold. Q. And then what did he say after that? A. O.K. He told me that he was in the office the day before and he heard the manager talking. Q. And did he tell you what they said? A. He told me that the market employees, myself and the others, were going to be terminated, that they were no longer going to use us due to the Union. He did use the word union. Q. Did he say anything else? A. As far as the termination of our jobs? Q. Yes. A. No, ma'am. Q. Did he say who was talking? A. No, ma'am, he did not Q. Did you ask him? A. No, ma'am. 1253 It was clear from Stafford's demeanor and the lack of spontaneity in his answer "due to the Union. He did use the word union," that Liles' testimony had been re- hearsed. It was as if Liles had dropped his most impor- tant line, and then suddenly remembered it. Not only does Liles' own testimony and demeanor belie its truth, but I fmd it totally incredible that if Stafford had actual- ly said this to Liles, Liles would not have asked who it was that had made this statement. On cross-examination by Respondent's counsel, Liles testified: Q. [By Mr. Linzy] And would you tell us, please, what you said and what he said and the order in which it was said? A. [By Liles] Okay, if I can just about put it in the same way I told her. We greeted each other and asked how we had been doing and I told Larry that I hated that we lost our jobs and I wish we could have stayed on. Larry said, "Yes," he knew, that things were rough on me and I said, "Yes," and he said, "Well, I knew about it a day before it hap- pened." He said, "I was in the office and I heard the managers talking," you know, that I was going to be terminated. Q. Is that the end of the conversation? A. No, sir. We kept on talking and I asked him, he knew about it a day before and he said, "Yes." I said, "Was it just me?" and he said, "No," that he had heard that they were going to terminate all of us and I said, "Well, we go to court Monday and maybe everything will work out right for us." I left. I had a sick child, the only reason I went in the store was because I saw Larry going into the store as I was leaving Super D next door with some med- icine for my child. Q. And was that the end of the conversation? A. Yes, sir, it was. As can be seen from his testimony, on cross-examination Liles again failed to include any reference to the Union in the alleged statement by Stafford. I am convinced that Liles did not remember that line during two out of three versions of that alleged conversation for the simple reason that it did not occur . Stafford testified that Liles returned to the Collierville store two to three times after his termination. Stafford recalled having a conversation with Liles, but approximated its time to have been a week or two after Respondent purchased the store. Nei- ther Liles nor Stafford is certain of the timing of the conversation, and I do not find that to be a significant flaw in either's testimony. Stafford credibly denied tell- ing Liles that he had overheard a conversation such as that reported by Liles. Stafford confirms that during the conversation Liles brought up his employment situation 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Respondent. Stafford testified that it was Liles who brought up the subject of the Union as a possible reason he was not hired by Respondent, and each time Liles did so Stafford changed the subject by asking Liles about his wife, who had just had a baby. Stafford's description of the exact conversation with Liles is somewhat illogical, but I am convinced he was telling the truth when he tes- tified that he did not make the statements attributed to him by Liles and that it was Liles who suggested that Liles had not been hired because of the Union. I discred- it Liles and find that Stafford did not say that employees in the meat department had not been hired because of the Union. Analysis and Conclusions As the General Counsel acknowledges , a successor employer is under no obligation to hire any or all em- ployees of the former employer. The selection process, however, may not be influenced by discriminatory con- siderations proscribed by the Act. Howard Johnson Co. v. Detroit Local Joint Executive Board, 417 U.S. 249 (1974). The General Counsel correctly argues that when all other factors for finding a successorship are present, a new owner's failure to hire its predecessor 's employees will not defeat a fording of successorship if the employer refused to hire the predecessor's employees because of their affiliation with a union. Magnolia Manor Nursing Home, 260 NLRB 377 (1982); C.J.B. Industries, 250 NLRB 1433 (1980). Respondent has stated the matter simply but effective- ly in its brief: It is not unlawful for the employer to make deci- sions about initial terms and conditions of employ- ment where it is uncertain that the seller's employ- ees will constitute a majority of the purchaser's work force. Howard Johnson Co., supra. Once it be- comes clear that a majority of the purchaser's work force will or will not be made up of the seller's em- ployees, the legal result simply follows-bargain if there is a majority of the seller's employees or do not bargain if there is not a majority . NLRB v. Burns Security Services, 406 U.S. 272 (1972). Should the employer refuse to hire someone because of that person's union activity or because that individual, along with the employment of others, would give rise to a bargaining obligation, that is unlawful ac- tivity. In their briefs, the Charging Party and Respondent both acknowledge that the Board 's decision in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 983 (1982), applies in the successor context. Accordingly, if the General Counsel establishes a prima facie case that unlawful motivation was the reason for the successor not hiring the predeces- sor's employees, the burden of proof shifts to the succes- sor to prove that the predecessor's employees would not have been hired even in the absence of protected con- duct. In the Charging Party's brief, counsel acknowledges: "The case at hand is characterized by an abundance of circumstantial rather than direct evidence and a lack of much direct evidence ." In fact, even the circumstantial evidence is far from abundant. In the present case, I find no credible evidence that Respondent purposely took steps merely to avoid a bargaining obligation with the Union. The General Counsel and the Charging Party would have me infer not only animus but an unlawful motiva- tion on Respondent's part in the present case for not hiring Lane, Liles, Sowell, and Washington as a result of a prior decision in which Sewell -Allen Big Star, Inc. was found to have engaged in several unfair labor practices. Sewell-Allen Big Star, JD-(ATL)-38-84 (May 4, 1984). In that decision, Sewell-Allen Big Star, Inc., as well as Pic Pac Foods, Inc. and Giant Foods, Inc., subsidiaries of Malone & Hyde, Inc., along with several other respond- ents, were found to have unlawfully withdrawn recogni- tion from the Union. Sewell-Allen Big Star, Inc. d/b/a Big Star No. 189 and Sewell-Allen Big Star, Inc. No. 2 d/b/a Big Star No. 103 were individually found to have solicited employees to withdraw from the Union; solici- tied employees to abandon the Union; threatened em- ployees if they continued to support the Union ; interro- gated employees concerning whether they had decided to abandon the Union; and solicited employees to bring grievances to the employer rather than to the Union. Counsel for the Charging Party correctly argues that the Board may properly use evidence from a prior unfair labor practice proceeding as evidence of present union animus. I have considered the prior decision. I note too, however, that there is little or no evidence of animus in the present case and no evidence whatever that Re- spondent has engaged in any unfair labor practice re- motely similar to those enumerated above. In short, even if I were to fmd that Respondent harbored some animus against the Union in the present case, I would and do nevertheless fmd that Respondent did not employ Lane, Liles, Sowell, and Washington for reasons unrelated to the fact that they had been represented for purposes of collective bargaining by the Union when they were em- ployed by Chambers. The General Counsel contends that during the sale by Chambers to Respondent Malone & Hyde acted as Re- spondent's agent. The complaint was specifically amend- ed to include such an allegation. Over the objection of Respondent's counsel, I allowed considerable evidence to be introduced on that issue based on what I now realize was the mistaken belief that resolution of that issue had some direct bearing on the substantive unfair labor prac- tice allegations of the complaint . The facts bearing on this issue have been discussed in detail above. In the por- tion of the General Counsel's brief devoted to argument, there is a very brief section directed to the contention that Malone & Hyde acted as agent of the Respondent. Both the General Counsel and the Charging Party, how- ever, failed to articulate in what way the substantive alle- gations of the complaint are advanced even if I find that Malone & Hyde did act as an agent for Respondent in the purchase of Chambers Big Star No. 52 . Be that as it may, I find that Malone & Hyde did not act as an agent for Respondent in the purchase of Chambers Big Star SEWELL-ALLEN BIG STAR NO. 52 No. 52 but rather acted in its own interest . Chambers subleased the Collierville store from Malone & Hyde, as Respondent does now. The prior decision in Sewell Allen Big Star, supra, notes the testimony by Joseph R. Hyde, president of Malone & Hyde, that "Malone & Hyde owns rights to the name Big Star on a territorial basis." Once Chambers decided to sell the Collierville store, it was to Malone & Hyde's own advantage to help Cham- bers find a suitable buyer, one who would continue the business in a profitable manner. By doing so, Malone & Hyde was advancing its own business interests by guar- anteeing a continued source of sales for itself. In order to advance its own business interests, Malone & Hyde acted as an intermediary between Chambers and Respondent and assisted in the preparation of various documents nec- essary to the sale. Under such circumstances, Malone & Hyde can hardly be said to be an agent of Respondent. Malone & Hyde's relationship with Respondent is one of supplier to customer, not one of agent to principal. I shall therefore dismiss that allegation of the complaint. For the reasons already stated at length above, I fmd that Lane, Liles, Sowell, and Washington were not of- fered employment with Respondent for reasons unrelated to the fact that they had been represented by the Union while employed by Chambers. In view of my conclu- sions, I find it unnecessary to reach Respondent's argu- ment that the meat department no longer constitutes a unit appropriate for purposes of collective bargaining or the General Counsel's argument that a visitatorial provi- sion should be made a part of the appropriate remedy. Accordingly, I shall recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent Sewell-Allen Big Star, Inc. d/b/a Sewell-Allen Big Star No. 52 is an employer engaged in 1255 commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers Local 1529, AFL-CIO-CLC is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. 3. Malone & Hyde, Inc. did not act as agent of Re- spondent in connection with Respondent's purchase of Chambers Big Star No. 52. 4. Respondent did not refuse to hire Roy Lane, Charles Liles, Linda Sowell, or Larry Washington be- cause of their union activities or because they were rep- resented for purposes of collective bargaining by the Union while they were employed by Chambers Big Star No. 52, but rather Respondent failed to hire those indi- viduals for lawful reasons. For lawful reasons, Respond- ent did not hire a majority of employees in the appropri- ate collective bargaining unit within the meat department at Chambers Big Star No . 52, and therefore Respondent is not obligated to recognize or bargain with the Union as the exclusive representative of its employees in that same bargaining unit. 5. Respondent has not violated Section 8(a)(1), (3), or (5) of the Act as alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The complaint in Case 26-CA- 11018 is dismissed in its entirety. 8 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.