Daka, Inc.

548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DAKA, Inc., and its subsidiary DAKA Food Service Management, Inc. and Local 217, Hotel and Restaurant Employees and Bartenders Union, a/w Hotel Employees and Restaurant Employ- ees International Union, AFL-CIO. Cases 1- CA-22337 and 1-CA-22591-1 30 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 6 August 1986 Administrative Law Judge Richard L. Denison issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answer- 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 briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The General Counsel 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 In adopting the judge's conclusion that the Respondent did not violate the Act, as alleged, we find it unnecessary to rely on his statement that the Respondent's failure to hire one of the ATS bartenders can be readily explained by the fact that the Respondent was informed that an unidenti- fied ATS bartender was suspected of watering drinks. In sec IV,E, par 16, the ninth sentence of his decision, the judge inad- vertently referred to the DAKA lease as the "ATS" lease. In sec IV,E, par 17, the penultimate sentence, the judge inadvertently referred to ATS employees as "DAKA" employees 2 Chairman Dotson agrees that the Respondent cannot be a successor because it lawfully did not hire the employees of the predecessor He therefore finds it unnecessary to pass on the remainder of the judge's dis- cussion of the criteria for determining whether an employer is a succes- sor Burton E. Rosenthal, Esq., and Susan Cole, Esq., for the General Counsel. John E. Coyne, Esq. (Coyne & Gottlieb), of Boston, Mas- sachusetts, for the Respondent. Morty F Miller, Area Director, Local 217, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge. This case was heard at Providence, Rhode Island, on 25, 27, and 28 February; 1, 5, 6, 7, and 8 March; and 15, 16, and 17 April 1985. The complaint, issued 19 November 1984, formally amended on 5 February 1985, and further amended at the hearing, alleges violations of Section 8(a)(5), (3), and (1) of the Act.t The Respondent's answer denies the allegations of unfair labor practices alleged in the complaint. On the entire record in the case, 2 including my consideration of the briefs filed 25 June 1985, I make the following3 FINDINGS OF FACT 1. JURISDICTION AND SINGLE EMPLOYER STATUS Based on the allegations of paragraphs 2(a) and (b), 3(a) and (b), 4(a) and (b), and 5, admitted by the Re- spondent's answer, as amended, I find, respectively, that DAKA, Inc., and DAKA Food Service Management, Inc., constitute a single integrated business enterprise and, as such, are a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION Based on the allegation in paragraph 6 of the com- plaint, admitted by the oral amendment to paragraph 6 of the Respondent's answer, I find that Local 217, Hotel and Restaurant Employees and Bartenders Union, a/w Hotel Employees and Restaurant Employees Internation- al Union, AFL-CIO, the Charging Party and the Union in this proceeding, is a labor organization within the meaning of Section 2(5) of the Act. III. SUPERVISORY STATUS Based on the allegation contained in paragraph 7 of the complaint, as amended, admitted in paragraph 7 of the Respondent's answer, I find that the following-named persons have occupied the positions set forth opposite their respective names, and are now, and have been at all times material herein, supervisors of Respondent within the meaning of Section 2(11) of the Act, and agents of ' The 8(a)(l) violation is entirely derivative, since, at the outset of the hearing, the General Counsel's motion to delete par 8 of the complaint (and thus associated par 18 ) was granted 2 Comprising over 1700 pages of transcript and approximately 60 ex- hibits composed of over 1100 pages 3 I have received on the dates specified the following motions, which are granted (a) General Counsel's motion to correct transcript, dated 25 June 1985, received 28 June 1985 (b) The following motions, which had the practical effect of extending the time for filing briefs in this matter until 24 October 1985 (i) General Counsel's motion to supplement brief with additional case citation, dated 26 July 1985, received 1 August 1985 (ii) Charging Party's motion to take judicial notice of court of appeals decision and analysis, dated 19 September 1985 (iii) Counsel for General Counsel's request for judicial notice, dated 2 October 1985, received 8 October 1985, and Respondent's response there- to, dated 10 October 1985, received 24 October 1985 286 NLRB No. 49 DAKA, INC. 549 Respondent within the meaning of Section 2(13) of the Act: Terry Vince President Allen Maxwell Vice President Terry Tehrany District Manager Brian Magaw Manager of Airport Facility IV. THE UNFAIR LABOR PRACTICES A. Background The T. F. Green State Airport at Warwick, Rhode Island, is owned and operated by the State of Rhode Island under the auspices of the State's Department of Transportation (DOT). The T. F. Green complex is the chief airport serving the Greater Providence, Rhode Island area. This case stems from a change in the conces- sionaire authorized to operate the eating facility , cocktail lounge, and gift shop in the terminal building . The rele- vant history of this concession is described in the cred- ited testimony of Isidore W. D'Orsi, assistant director of DOT for real estate and chairman of the airport proper- ties committee, and in credited portions of the testimony of Edward T. Krzyzek , former manager of the conces- sion for the predecessor , ATS.4 Other stale officials who played a prominent role in the events under consider- ation are D'Orsi's superior, Director of Transportation Ed Wood; Henry Almonte, director of DOT's division of airports; and Almonte's assistant, Anthony Rosatti, who also serves as vice chairman of the airport proper- ties committee. On 19 August 1964, DOT signed an agreement with Air Terminal Services, Incorporated (ATS), a Virginia corporation, in which the State granted ATS a license to use state-supplied space, furnishings, fixtures, and equip- ment to operate restaurants, alcoholic beverage service, and other incidental operations in the airport terminal. ATS, a subsidiary of Delaware North Companies, is an international concession service that basically runs air- port concessions, including restaurants , lounges, coffee shops, gift shops, and parking lots throughout the United States and at various other locations worldwide. The parent corporation is also involved in the sports industry where it operates sports centers and owns professional teams. The term of the agreement was for 5 years. The licensee had the option to renew the agreement for an additional 5-year term. The agreement also granted ATS the right to prepare and sell food and beverages for the purpose of in-flight service by airlines that operate at the airport, and for a number of years ATS also performed this service. ATS exercised its option to renew the li- cense, but at the end of the second term no successor agreement was negotiated, because the State was in the midst of developing a master plan for airport expansion. This plan took several years to develop, and ultimately resulted in more widespread and sweeping renovation and expansion of the terminal far beyond what was origi- 4 D'Orsi impressed me as a dedicated state official determined to be candid at all times in the face of an unpleasant situation into which he clearly felt the State should have no part For reasons described later in this decision, Krzyzek's testimony is crediled only where specifically in- dicated nally considered. Construction began in the late 1970's. It was completed in the early 1980's. In the meantime, ATS operated its concession at the airport on a month-to- month basis under the terms of the expired contract, and continued to do so until it vacated the premises in 1984. Over the intervening years, however, the State came under increasing pressure, in the form of publicity and otherwise, to put the concessions up for bidding. At this point it should be noted that ATS had not been the holder of the gift shop concession, which was operat- ed by Tele-Trip Corporation, a subsidiary of Mutual of Omaha. In early 1983 the State issued bidding specifica- tions seeking bidders for the airport concessions . The re- quest for proposals sought bidders for both eating facili- ties and the lounges, and separately for the gift shop, on the basis of a 10-year minimum rent and a percentage of the gross profit. The 1983 bid solicitation was unsuccess- ful. There was only one bidder. In the meantime, on 1 January 1983, ATS and Local 217, Hotel and Restaurant Employees and Bartenders Union, AFL-CIO (the Union and the Charging Party), entered into a collective-bar- gaining agreement recognizing the Union as the exclu- sive collective-bargaining representative for ATS's T. F. Green employees.5 Tele-Trip and ATS declined to bid. ATS announced its intention in a letter dated 13 July 1983, addressed to the State Division of Purchases from its vice president, Lawrence J. Amico. However, since this bid solicitation was a failure, in the months of late 1983 and early 1984 the concessions continued to be operated by Tele-Trip and ATS, respectively. During the last week of January and the first week of February 1984, the State again placed newspaper ads in the Providence Journal, Wall Street Journal, and Boston Globe soliciting bids for the airport concessions. Simultaneously, bid specifications were issued. A prebid conference, held on 1 March, was attended by D'Orsi, Krzyzek for ATS, and others not in- volved in this proceeding. The Respondent did not attend. At some unspecified time thereafter, ATS once again notified the State by letter that it did not intend to bid. Nevertheless, it continued to operate its concession until the Respondent took over the premises on 1 Sep- tember 1984. Tele-Trip, however, abandoned its gift shop concession on approximately 1 May 1984. ATS took over the operation of the gift shop at that time, and thereafter for the duration of ATS's tenure the previous- ly unorganized gift shop employees were represented by Local 217.6 Krzyzek did, however, attend the 2 April 6 The collective-bargaining unit is All persons employed in the categories and classifications set forth in the wage schedule attached hereto at T. F Green State Air- port, excluding office and clerical employees , guards, professional employees, trainees for management or supervisory positions, mana- gerial employees, managers, assistant managers, and all supervisors as defined in the National Labor Relations Act, 1947, as amended, and all other employees not specifically included as employees The attached wage schedule listed bartenders, waiters/waitresses, cash- iers, cooks, short order cooks, cooks' helpers, and utility employees. 6 The collective-bargaining history is based on the credited testimony of Morty Miller, the area director for the Union responsible for servicing Local 217, including the handling of grievances and the negotiation of its labor contract Miller testified clearly and concisely Generally, his calm, Continued 550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bid opening meeting, which was held in the state's offi- cial reception room upstairs in the airport terminal. It was at this point in time that the Respondent formally entered the picture for the first time. B. Nature and Extent of DAKA'S Operations DAKA is the registered trade name and logo for Dining and Kitchen Administration, Inc., the parent cor- poration of a series of highly efficient and sophisticated companies operating in the catering industry. DAKA is a Massachusetts corporation with home offices in Wake- field, Massachusetts. Since its corporate organization in early 1973, the Company has grown to the point where it currently employs in excess of 4500 employees at over 250 locations. Although DAKA operates in over eight states, it specializes in serving locations primarily in the northeast. Among its impressive list of clients are the General Foods world headquarters, a large papermill in Maine, the Boston Globe and Herald, the Boston Museum of Fine Arts, Harvard Law School, the Univer- sity of Pittsburgh, Illinois State University at Normal, and numerous hotels, banks, prep schools, and colleges. DAKA also serves the Maine State Office Building, and the Empire State Plaza complex in Albany, New York. Although DAKA has virtually no airport experience, it operates a wide range of services , including gift shops, fast food facilities, cafeterias, and gourmet restaurants. The six members of the Company's board of directors are Vincent P. Wilbur, chairman; Terry Vince, president and chief executive officer; Kenneth J. Fahey, vice presi- dent and treasurer; Leo H. Skellchock, R.D. vice presi- dent; Allen R. Maxwell, vice president of administration; and Mollie E. Rudall, vice president. Other DAKA man- agement personnel who played a role in the events relat- ing to DAKA's acquisition of the T. F. Green conces- sion are Ron Cohen, vice president of operations; Susan Shea, director of merchandising; Gloria Chabot, a mer- chandising technician; Brian Magaw, manager of the new airport facility; and Paula Clarke, DAKA's manager at the Citizens Bank cafeteria in Providence. The district manager for DAKA over the entire State of Rhode Island is Terry Tehrany. DAKA's corporate concerns and management func- tions are summarized in the following extract from mate- rials, in evidence, provided to the State as a part of the Company's bid proposal: Our Objective: Food Service at Its Very Best IT IS OUR CORPORATE OBJECTIVE: To provide our clients and customers with the best possible food service within the framework of the conditions imposed and consistent with our own established standards of quality of food, service, personnel and sanitation. To provide superior supervision in all phases of our food operations. straightforward, and businesslike manner convinced me that he was a skilled professional attempting to relate the facts truthfully as he saw them. Therefore, his testimony has been credited, except where specifi- cally noted. To provide technical assistance adequate to guide the branch managers in the training of employees, food production, merchandising, menu preparation, and to supervise the maintenance of high standards of quality. To conduct our affairs in such a manner as to ensure that our corporate activity will be mutually beneficial to employees, clients, purveyors, the com- munities in which we operate, stockholders, and all levels of government. To conduct throughout the sphere of our busi- ness activity food service operations in such a manner as to encourage reasonable and continuous corporate earnings. To conduct our food operations in such a manner as to provide and maintain the highest possible level of client satisfaction. To conduct our corporate affairs in such a manner as to be recognized as a responsible corpo- rate citizen. Management Functions Management daka provides management services under many contractual arrangements. A custom- designed agreement can be tailored to meet your needs, whether it is a fixed fee or a fee based on a percentage of sales, or guaranteed results by daka; and there are also incentives for cost reductions, in- cluding profit and loss arrangements. Consulting on a continuous basis is often desired by clients, includ- ing resident management consultations and kitchen, serving, and dining area design. Purchasing daka provides specifications and en- sures control of quality for meats, poultry, fruits, vegetables, staples and groceries. daka's Purchasing Director is responsible for ob- taining the best prices possible consistent with our specifications. daka approved suppliers are both local and national, but when prices are competitive, priority is given to all local vendors. The purchasing budget is the largest single ex- pense and warrants a full staff to direct, coordinate, and control its functions. Financial and Accounting The company maintains a fully computerized accounting department which provides monthly and year-to-date operating state- ments of revenue and expense for every operation, with a comparison to budget with last year. The company acccounting periods are comprised of four thirteen-week quarters with two four-week and one five-week period in each quarter. Personnel daka, an Equal Opportunity Employer, maintains a modern, professional personnel and labor relations department responsible for recruit- ing, fringe benefits, employee newsletters, wage and salary administration. All eligible employees have major medical, life insurance, pension plan, paid vacations and holi- days, meals, bonus awards. Food service and hospi- tality is a personalized business, and our personnel DAKA, INC. 551 programs help provide enthusiastic, productive em- ployees. Training Food service and hospitality workers are thought to be unskilled and underproductive. daka has challenged this by establishing training programs and compensation that has earned daka the reputation of developing employees with above average loyalty. At all levels, people require train- ing and retraining. To this end daka is proud of these programs. Sanitation and Safety The highest priority on maintaining standards of sanitation and safety in all phases of food preparation and service is a must with daka. Under the direction of a Sanitation and Safety Director, it is this department's responsibility to es- tablish, maintain, and enforce the standards that daka insists upon. The Sanitation inspects regularly all daka operations and completes a report that ana- lyzes all aspects of cleanliness, housekeeping, and safety. Follow-up to the inspection report is accom- plished with the operations staff to rectify any areas needing alteration. Research and Development A research test kitch- en is located in the home office to constantly test food products and develop recipes. Under the man- agement of the Research and Development Direc- tor, a professional program of sampling, testing, and analysis provides operations with the latest tech- niques and quality control. This program ensures that all operations maintain the highest quality of menu and food preparation. Space Planning and Design Through trained and experienced eyes, dreary facilities are soon convert- ed into bright, cheerful, and efficient work and service areas. daka's expert can work miracles in layout and design whether for a mode of service, a total change of concept, or for subtle traffic flow ef- ficiencies. C. Events that Led to DAKA's Bid and its Selection by State Terry Tehrany described in detail his efforts, which ultimately resulted in DAKA's being awarded the airport concession lease. One of his major responsibilities is the location and development of new accounts. This function occupies approximately 15 percent of his time each week. On 14 March 1984, he received a telephone call from one of his unit managers, Brian Magaw, who in- formed him that the State was soliciting bids for the con- cessions at T. F. Green Airport. Tehrany obtained a copy of the bid specifications at the offices of the State of Rhode Island purchasing department on Promenade Street in Providence. Later that day he visited the air- port, to view the ATS facility and attempt to confirm the sales figures contained in the State's bid specification. On arriving, Tehrany visited the coffee shop, which he described as looking as though it had been built in the early 1950's and never touched since then. It was dark and dirty. It took about 15 minutes before he obtained service, and another 15 minutes before he received his sandwich . Tehrany sat at the table eating and making notes on the poor condition of the facility, and his obser- vation of the sales receipts displayed on the cash register. This activity occupied the remainder of his day. He re- sumed this activity at 7:30 a.m. on the 15th, when he spent the entire day at the airport making notes and ana- lyzing sales.7 Tehrany also spent a portion of his time observing the gift shop operations. Tehrany continued his survey on Friday the 16th, and spent between 6 and 7 hours making observations and formulating his ideas. That afternoon he examined ATS's operations in the upstairs lounge. Tehrany spent the weekend formulating his ideas for presentation on Monday morning to Company Presi- dent Terry Vince in his office in Wakefield. Tehrany had concluded that the sales figures in the State's bid specifi- cation were low. This placed DAKA in a favorable bid- ding position. He had decided that because of the age and dirty condition of the concession facilities, that the whole operation would have to be "gutted out" and that "the whole system of food service had to change." He noted that the ATS operation was losing business "be- cause of the condition of the place, and because of the way-the nonchalant feeling that the waitresses present- ed-the carelessness of the waitresses" due to what he described as "an attitude problem among them." All this led Tehrany to decide that the type of food service oper- ation needed at the airport was basically a fast food type service, which did not require waiter/waitresses or dish- washers in order to operate. He next prepared a tentative manning chart, based on a McDonald's or Burger King type facility, which he es- timated as basically requiring a five-person shift in the morning and four employees in the afternoon. His analy- sis was reflected in a report, called a pro forma, which, along with the State's bid specifications, constituted the basis for his presentation to the company president. After hearing Tehrany's presentation, Vince made one impor- tant change. He concluded that if DAKA were to be the successful bidder, the State's percentage should be 15 percent rather than the 10 percent recommended in Teh- rany's pro forma. He then gave his approval to the plan and instructed Tehrany to begin work preparing DAKA's proposal for presentation to the State of Rhode Island by 2 April, the due date. On the following day, 20 March, Tehrany returned to the airport facility accompanied by representatives from Paramount Restaurant Equipment Corporation, a Provi- dence, Rhode Island company in business as suppliers, consultants, and designers to the food industry. Para- mount has affiliated construction and financial lending companies. DAKA frequently uses Paramount's services in opening new facilities and renovating old ones. With the cooperation of Henry Almonte, Tehrany secured 7 Tehrany was on the stand 3 successive days in the hearing, giving a detailed account of his role in all the events relating to the issues in this matter Generally, his testimony was concise, clear, and logical He dis- played an excellent memory of details and presented his evidence without hesitation or evasion In a number of areas where his testimony conflicted with employee witnesses, Tehrany's superior memory, generally, has per- suaded me that his account was factual and, for the most part, correct He was corroborated by Brian Magaw. Therefore , I credit Tehrany's tes- timony, except where specifically noted 552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD access to the ATS premises for the purpose of determin- ing needed renovation, construction, alterations, new equipment, and the taking of measurements. The Para- mount representatives were particularly impressed by the age of the facility and its equipment and the degree of dirt, insects, and deterioration. As the Paramount repre- sentatives took their measurements, Tehrany ran further checks on his sales estimates by renewed observations of the gift shop and the upstairs lounge. During this time he did not have any conversations with any of the ATS em- ployees. At the end of the day Tehrany recomputed his sales figures. Having determined that DAKA could afford to give the State the 15 percent, that Vince had concluded would be necessary for a successful bid, he began assembling the materials that comprised DAKA's bid proposal, which he filed with the Promenade Street office on the morning of 2 April.8 While waiting for the 2 April bid opening meeting to start, Tehrany noticed that Ed Krzyzek was present. After a few minutes, the sealed bids were opened by a Mr. Moan, assisted by a secretary, in the presence of DOT officials, Isidore D'Orsi and his assistant, Paul Car- cieri. Then Moan announced that those present would be afforded an opportunity to examine the various bids. Tehrany noticed Krzyzek examining the DAKA bid, after which he turned to Tehrany and said, "Not in a million years can you do these numbers." Tehrany asked why, and Krzyzek responded that 45 to 50 percent of ATS's sales at the airport were going against labor costs because it was "a union shop."9 Tehrany testified that it was not until this moment that he learned that the ATS operation at the airport was a "union house." In his words, "It was devastating to find out that . .. I didn't know it was union wages involved there . . . . I lost my heart because, you know, that was something I should have known. . . . After I picked up my heart from under my feet, I walked out of the Transportation Depart- ment." Obviously, what had Tehrany worried was the fact that, with President Vince's blessing, he had pledged 15 percent of the gross profit to the State without learn- ing that 45 or 50 percent of ATS' gross went toward labor costs. As Tehrany summarized, ". . . the numbers I put together did not include union wages, and here I'm putting the best proposal together to present to the state. ... Of course, the numbers would be tremendously dif- ferent." As Tehrany was leaving the department, he met D'Orsi and Carcieri outside the door. Each of the men introduced himself and exchanged business cards. At this point Tehrany confessed, "The numbers I proposed do not include any union wages." Despite this revelation, D'Orsi and Carcieri smiled, and in a manner that Teh- rany interpreted as a lack of concern over this revela- tion, asked where Tehrany could be contacted. He re- 8 Tehrany emphasized that prior to filing DAKA 's bid proposal he had not had any contact with anyone from DOT, nor had he talked with Ed Krzyzek, the ATS facility manager at T F Green 9 Krzyzek admitted having a "brief exchange of words" with Tehrany at the bid opening meeting, he did remember examining DAKA's bid, however, and noticed that it was "awful high " He admitted that he might have commented to Tehrany about this, but could not remember what he said ferred them to his telephone number printed on his busi- ness card. The men shook hands and Tehrany left. Thereafter, beginning the following week, there were weekly telephonic contacts between Tehrany and Car- cieri concerning the status of the bid competition. On 25 April, at Tehrany's invitation, D'Orsi and Carcieri, to- gether with Airport Director Rosatti and his assistant, Walter McCall, visited DAKA's home offices in Wake- field, where they spent the entire day touring DAKA fa- cilities in Boston, including the operation at the Museum of Fine Arts. About 1 May the airport properties com- mittee agreed to recommend to the state properties com- mittee that DAKA be selected . Tehrany testified that it was shortly after May that he received the impression during one of his telephone conversations with Carcieri that the State considered DAKA's bid to be the most fa- vorable. On 4 May, based on the Airport Committee 's recom- mendation, Carcieri prepared the bid award recommen- dation memorandum from DOT Director Wood to Dennis Lynch, chairman of the state properties commit- tee, recommending that the bid award be made to DAKA. The memorandum describes DAKA's proposal as "by far the most generous to the state in terms of annual guaranteed payment." It also continues, . . . Our recommendation, however, is not based solely upon monetary considerations. . . . The De- partment was impressed by both the quality of serv- ice and management staff which this company pos- sessed.. . . Furthermore, DAKA has also proposed a capital investment of $120 ,000 for the refurbish- ment of the present restaurant/gift shop facilities at the airport . . . sufficient to upgrade the comfort and attractiveness of these facilities to levels far above those in existence today. About this same time Tehrany was receiving telephon- ic assurances from Carcieri and D'Orsi concerning DAKA's selection . On 8 May 1984, Elizabeth Clancy, executive secretary of the state properties committee, sent a memorandum to Wood confirming that the Com- mittee had that day decided to award the bid to DAKA. Official notification of the award was given in a letter from State Purchasing Agent Dennis Lynch to Tehrany, dated 8 June 1984. DAKA and DOT signed the concession lease agree- ment on 30 July. D. Events Leading to DAKA's 1 September Opening at the Airport, and the Union 's Efforts to Secure Recognition and Preserve Employees' Jobs A day or two after Carcieri and D 'Orsi told Tehrany that they had made a favorable recommendation to the airport authority, Tehrany met with Brian Magaw at Northeastern University, where Magaw was stationed at the time. Magaw was Tehrany's selection to manage DAKA's T. F. Green operations . The meeting lasted ap- proximately an hour, during which Tehrany briefed Magaw concerning his observations , conclusions, and plans for DAKA's future airport operations. He de- scribed in detail the bad condition of the ATS airport fa- DAKA, INC. 553 cility and explained the changes he intended to make in order to improve its image. He sand that they were going to completely "gut out" the upstairs lounge, and con- struct a completely new bar. He specified that the eating facility would become a fast food type operation, and consequently they would not need waiters or waitresses. He stated that he wanted Magaw to line up the gift shop supplies as soon as possible, listing the items that he in- tended to add to the present gift shop inventory. He also mentioned that he had discovered at the bid opening meeting that the ATS operation was organized. Tehrany told Magaw that he was to report for work as the new manager of the DAKA facility at the Roger Williams Park Zoo on Monday, 4 June, from which location he would prepare for the startup of DAKA's business at the airport, but that his immediate duties on reporting there would be to prepare for the big celebration at the park. 10 On 11 June, Tehrany took DAKA's designer and ar- chitect, Irving Brody, and Vice President Leo Skell- chock to the airport to discuss the design for the future DAKA facilities and to take additional measurements for a new blueprint. Shortly before that Tehrany met with Brian Magaw, who had assumed his new position at the Roger Williams Zoo. They discussed and Tehrany ap- proved Magaw's recommendation to hire Scott Sever- ance and Jim Doura as the assistant managers whom he intended to take with him to the airport when the transi- tion was made. Both these men had experience with fast food operations. It was Tehrany who conducted the final interview.1' About 4 July, Tehrany and Magaw met again. On that occasion he and Magaw reviewed their earlier discussion at Northeastern University in which Tehrany had de- scribed the bad condition of the ATS airport facility, the carelessness he observed there on the part of the wait- resses, and his decision that the future operation at T. F. Green would not utilize waitresses or dishwashers. At the conclusion of their discussion, Tehrany gave Magaw his instructions for staffing the new operation . It was de- cided, with Tehrany's approval, that they were not going to hire the entire ATS work force as a unit, but would look for qualifications over everything else in considering individual applicants. The instructions given Magaw at this meeting were the beginning of the imple- mentation of Tehrany's plans for the airport concession presented to Vince on 16 March. Meanwhile, Morty Miller of Local 217 had first learned that DAKA was the successful bidder for the airport concessions when he received by mail a copy of a newspaper article announcing the award, while he was on special assignment for the International Union at Las Vegas, Nevada. He apparently did nothing until approxi- mately the last week of July, when Dominic Bozzotto, the head of the Boston local, gave Allen Maxwell's name as to Miller being the person in charge of DAKA's labor 10 Magaw had been working summers at the zoo and winters at North- eastern 11 Although Tehrany insisted that he was not involved in hiring any of the personnel for the airport, it is clear from his testimony that his use of the term "involvement" did not include either the interviews with Sever- ance and Doura or the subsequent discussion between him and Magaw relations. Miller testified that Bozzotto told him that his local represented the DAKA employees at the Boston Globe facility, and because the Boston Globe was totally unionized he had a very decent relationship with Max- well. Miller telephoned Maxwell on 3 August. After in- troducing himself, he said he understood DAKA was going to be taking over the airport operation, and that the Union was interested in having a smooth transition. He asked Maxwell what the Company's plans were for the T. F. Green facility. Maxwell's response was to refer Miller to the Company's attorney, John Coyne. Miller succeeded in reaching Coyne on the following Tuesday. In answer to Miller's question concerning DAKA's plans, Coyne stated that he did not think any commit- ments had been made to any air terminal service employ- ees, and that the Company's first responsibility would be to those DAKA employees at a seasonal operation in the area (the zoo facility). Miller asked how the ATS em- ployees could apply for work with DAKA at the airport if they so desired, and Coyne promised to find out and inform Miller by the end of the week. On 10 August Miller wrote to Maxwell, stating that the Union was the collective-bargaining agent for the restaurant, bar, and gift shop employees at T. F. Green, and that these employees are ready, willing, and able to work for DAKA at that operation. He also asked Max- well to notify him concerning how the present employ- ees could apply for jobs with DAKA, and whether or not they intended to employ the current work force. That same day Miller also telephoned the DAKA facility at the Roger Williams Park Zoo and pretended to be seeking a job at the airport. He asked the receptionist how he could apply. She answered that he should come to the zoo and obtain an application that, when complet- ed, would be reviewed by Brian Magaw, the future DAKA airport concessions manager. Later that day Miller prepared an undated petition that he circulated for signature among the ATS employees working at the air- port. The petition, addressed to Director of State Air- ports Anthony Rosatti, stated as follows: As concessions employees at Green State Airport, we are upset at the intent of DAKA Food Service to: (1) refuse to hire us when they assume operation of the restaurant, bar, and gift shop-jobs we have performed for years; (2) refuse to honor the rates of pay, benefits, and other conditions in our Union Contract; (3) refuse to recognize Local 217 as our collec- tive bargaining agent. This is unfair treatment of a loyal group of employ- ees who have given many years of service at the Airport. We ask you to ensure that our jobs are protected. Miller personally began the circulation of the petition among the employees on 10 August, but left before all the signatures had been obtained. Miller tried unsuccess- fully to reach Maxwell by telephone on 13 and 14 554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD August. The petition was returned to him on Wednes- day, 15 August, by the employees charged with the re- sponsibility of obtaining further signatures. That same day Miller and a delegation of ATS employees, Jane Olsen, Jane Orsini, Jenny Lawrence , Sherrill Bouthilher, Claire Matteson, and Bernadette Morrell , presented the petition to Rosatti's assistant, Mr. McCall. Next, Miller received a letter dated 15 August from John E. Coyne. After reciting that Miller's 10 August letter to Maxwell had been forwarded to him for re- sponse, Coyne stated: Presently, daka's intent is to offer employment at the airport facility to its employees who would oth- erwise face layoff or termination due to the close down of certain seasonal facilities . If any other ad- ditional employees are necessary , they will be hired by the company in its usual manner. Any further inquiries or correspondence in con- nection with this matter should be referred directly to this office. According to Miller, between 15 and 19 August, he met with D'Orsi and Carcieri in D'Orsi's office at DOT. George Nee, an official of the state AFL-CIO was also present. The meeting lasted about half an hour. Miller briefed D'Orsi on his views concerning the situation that was developing at the airport, i.e., that Local 217, the collective-bargaining agent for the T. F. Green ATS employees, was having no success with DAKA in their efforts to persuade DAKA to employ the current work force, and that it appeared they did not intend to do so. Miller asked for D'Orsi's assistance. According to Miller, D'Orsi said that he was sympathetic to the position of the current employees and that he would do what he could. 12 On 19 and 20 August an advertisement appeared in the help-wanted section of the Providence Journal Bulletin seeking full- and part-time bartenders, cooks, cashiers, general utility, waiters and waitresses for work "in the Warwick area." Although the ad did not specify the name of the company, employees were instructed to apply in person between 10 a.m. and 3 p .m., 21 August at the concession building at the Roger Williams Park Zoo, DAKA's facility. Pursuant to Miller's advice, ATS employees Claire Matteson, Jenny Lawrence, Jane Orsini, Phyllis Kelley, Ollie Fitzpatrick , Eleanor Galla- gher, Sherrill Bouthillier, and Tracy Smith went to the DAKA establishment at the zoo on 21 August. Galla- gher was accompanied by her daughter Tracey, a high school student . Each of these persons filled out an appli- cation, which they turned in either to Brian Magaw or Jim Doura. None of these ATS employees was ever of- fered a job with the Respondent . However, Tracy Galla- 12 D'Orst testified that in late 1982 or 1983, when the State was pre- paring to put the airport concessions out for bids for the first time, Miller requested that he place in the request for proposals a requirement that the successful bidder would be required to honor the existing contract with the Union This was not done According to D'Orsi, Miller made the same request at this meeting in August, in addition he sought assistance for the ATS work force gher was hired by Brian Magaw and ultimately began work at the airport on 2 September. On 25 August, Morty Miller wrote a letter to Alan Maxwell enclosing 11 letters addressed to Maxwell by individual ATS employees seeking employment.13 In the meantime, Terry Tehrany, Brian Magaw, and his two assistants, had been busy with arrangements for the scheduled 1 September commencement of DAKA's airport operations . Magaw, Doura, and Severance spent most of their time checking references, screening, inter- viewing, and hiring employees . This aspect will be dis- cussed later in a separate section of this decision. Teh- rany handled other matters related to the forthcoming opening and coordinated their efforts . In mid-July, Teh- rany arranged with Ken Fahey, DAKA 's treasurer, to secure all the proper licenses in time for the T. F. Green opening . On 19 July, he met with ATS Manager Edward Krzyzek concerning the transition.14 On 23 July, Teh- rany left for his vacation. He returned on 7 August, at which time he took a Boston auctioneer to the airport in an unsuccessful effort to sell some of the furnishings and equipment in the restaurant and the lounge. He again re- turned to the airport about a week later where he met with Brian Magaw concerning filling the vending ma- chines, which constituted DAKA's initial presence at the airport. On 21 August , while Magaw was busily engaged in accepting applications at the park, Terry Tehrany and Alan Maxwell drove from a district managers ' meeting to Providence for a meeting with Isidore D'Orsi and Paul Carcieri in D'Orsi's office. D'Orsi had requested the meeting. The meeting opened with D'Orsi saying he had met with Morty Miller, and expressing concern about the pressure the Union was putting on the State to assist it in obtaining recognition from DAKA and jobs for the ATS employees. D'Orsi asked Maxwell to advise him con- cerning what DAKA's position would be in the event the State were to pressure DAKA to recognize the Union. D'Orsi showed them clippings from local news- papers, and said he was also worried about the possibility that the publicity over this matter might adversely affect the State's efforts to upgrade the airport and improve its image. In D'Orsi's words, "It cast a negative shadow on our airport." Maxwell responded that should the State require DAKA to recognize the Union, DAKA would look to the State for economic relief with respect to the agreed-on rent, based on the outcome of any negotiations with the Union. He promised to write D'Orsi a letter presenting DAKA's views on how union wage rates 13 The enclosed letters were from Mary Banes, Joseph Brachen, Alyce Burke, Pasquale Caniglia, John Coletti Jr., Thelma Dufresne, David Ghighotty, Bernadette Morrell, Dawn Monteiro, Kimberly Tolly, and Julie Wagoner On Sunday, 26 August, ATS employees picketed the DAKA operation at the Roger Williams Zoo and distributed a leaflet stating that DAKA has refused to agree to hire the current employees at the T F Green concessions and planned to "throw the 35 restaurant em- ployees at Green State Airport out of work " Miller sent a similar letter to Maxwell on 30 August, enclosing an "ap- plication" from Jane LaFazia, and on 19 September on behalf of Michael Leighton and Diana Tomassi 14 The details concerning other aspects of this meeting and of other important conversations Tehrany had with Krzyzek are discussed in a later portion of this decision DAKA, INC. would affect the economics of the Company's agreement with DOT. During the days immediately following the 21 August meeting with state officials, Maxwell asked Tehrany to obtain data concerning the wage rates that DAKA planned to pay at T. F. Green and, if possible, the rates that were in the ATS union contract. 15 Utilizing this in- formation, Maxwell drafted the following letter, dated 31 August 1984, which he sent after it had been casually re- viewed by Tehrany. Because of the importance of this exhibit, it is fully set forth as follows: Mr. Isidore V. D'Orsi Assistant Director for Real Estate Department of Transportation Property Management Office: 323 State Office Building Providence, Rhode Island 02903 Dear Mr. O'Orsi: As discussed, daka's bid to operate the food serv- ice at the T. F. Green Airport was based on eco- nomic conditions which determined the amount of rent we committed to the State of Rhode Island. Concerning economic conditions, specifically wages and fringes, daka's bid was based on rates and benefits we know to be competitive in non- union operations in the Providence/Warwick area. We were aware of and concerned about the exist- ence of a collective bargaining agreement between the incumbent operator and the local hotel/- restaurant union as we prepared our bid. To that end, we asked the state to advise whether we should include consideration of the union in our proposal and were advised not to reflect such a factor. The cost ramifications to daka, should we be re- quired to recognize and negotiate a contract, would be substantial. Following is a comparison of the wage rates that daka used in its bid and, to the best of our knowl- edge, the wage rates in the current union contract: Wages Rates Used Daka's Bid Union Rates Bartender $3.50 $4.85 Hostess 5.00 5.00 Waitress 2.01 2.98 Cook 4.00 5.05 Counter 4.00 4.37 General Utility 350 4.17 P.T Cook 3.50 5.05 Cashier 3.50 4.37 Sundry Shop Supervisor 7.50 7.50 15 Meanwhile, on August 29 Tehrany and Magaw attended a hearing that resulted in DAKA's obtaining its liquor license at the airport Miller and 15 ATS employees appeared and opposed the granting of that li- cense 555 daka's tax and fringe benefit ratio was projected at 21% of total raw wages. To the best of our knowledge, the union's tax and fringe benefit costs approximate 30%. Assuming that the number of hours of labor per week remains as daka proposed in its bid, when ap- plying the union's wage rates and tax/fringe costs, an additional $87,000 in annual payroll costs would occur. We anticipate, Izzy, should recognition of the union be required, and assumption of economic con- ditions be required similar to what currently exists with the union contract, that selling price increases above the level of our projections would have to be implemented. These price increases would absorb about one-half the increased labor expenses, result- ing in a short fall of between $45,000 to $50,000. If I may be of further assistance, don't hesitate to contact me. Sincerely, Allen R. Maxwell Executive Vice President Allen Maxwell explained that his 31 August letter con- tained two serious inaccuracies . The first was the state- ment that during the time DAKA was preparing its bid, they were aware of and concerned about the existence of a collective-bargaining agreement between ATS and the Union. The second was the statement that during that same period of time DAKA asked the State to advise them whether they should include consideration of the Union in their proposal, and that the State had advised that the proposal need not reflect such a factor. Maxwell explained that these untrue statements were the result of his exuberance in desiring to take the strongest possible position in order to disabuse the State officials of any idea that their problem could be solved simply by raising DAKA's rent. Likewise on 31 August, Morty Miller and George Nee had a second meeting with state officials about the air- port problem. This meeting was attended by DOT Di- rector Ed Wood, D'Orsi, Anthony Rosatti, and Paul Carcieri in Wood's office. Miller spoke about his per- ceived unfairness over DAKA's alleged failure to inter- view and consider employing the ATS employees. He asked for the intervention of DOT in assisting the ATS workers' efforts to obtain an opportunity to work for DAKA. According to Miller, Wood said that he was sympathetic to Miller's position and that he would be talking to the Company. The meeting adjourned. Also 31 August was the day on which DAKA as- sumed occupancy of the gift shop, restaurant, and lounge areas. Under the supervision of Tehrany, Magaw, and Doura, people were brought in to clean the gift shop, and approximately 8 to 10 people worked that night shutting down the coffee shop and setting up the cafete- ria line, which was slated to temporarily supply DAKA's food service during the renovation, alteration, and con- struction phase of the changeover. Krzyzek assisted in 556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the transition work.' 6 Other DAKA managerial person- nel who were present to assist in setting up the tempo- rary buffeteria line were Gloria Chabot, Pat Annese, DAKA's executive chef, and Paula Clarke, the manager of DAKA's Citizens Bank facility. Tehrany hand delivered Maxwell's letter on 3 or 4 September.17 Like most dedicated public officials, D'Orsi deeply resented such outside pressure, and it is not surprising that he reacted adversely. He angrily handed the letter back to Tehrany and, referring to the statement that the State had advised DAKA that it was not necessary to consider the Union in their proposal, said, "There's not a god damned worth [sic] of truth in it." This time Tehrany read the letter carefully, and re- plied, "Your [sic] right." After noting his embarrassment, he promised to talk to Maxwell about the matter, and quickly left D'Orsi's office. When Tehrany reported to Maxwell, Maxwell expressed his irritation. He said, "What the hell did you let me send that thing with the incorrect reference in there for. Boy, don't we look stupid?" Tehrany replied that he should have looked at the letter more closely, and thus he failed to catch the inaccuracies. In this temporary mode, DAKA opened for business on 1 September.1 S Also on this date, the Union began picketing the airport and distributing a leaflet accusing DAKA of unfair treatment in failing to hire the former concession employees and hiring new workers at lower wages. The leaflet, bearing the full name of Local 217, requested the public not to patronize the airport restau- rant, bar, and gift shop. On 7 September, Isidore D'Orsi sent a handwritten memorandum to Director Wood with Maxwell's 31 August letter attached. The memorandum denied that state officials gave any advice to DAKA prior to the submission of their proposal concerning the Union, and averred that neither D'Orsi nor Carcieri ever spoke to or heard from anyone from DAKA until Tehrany intro- duced himself after the bid opening meeting. The memo- randum ends with a suggestion that "the above and the inflated projection attached must be tempered by the high degree of service DAKA will give us." Thereafter, Wood contacted DAKA President Terry Vince and asked for a meeting. The meeting took place on 20 Sep- tember between Wood and D'Orsi and Vince and Max- well in Wakefield. It lasted about 30 minutes, after which the four men, joined by Terry Tehrany, toured DAKA's offices. Wood stated that he had promised the Union that he would speak to DAKA about the possibility of recog- nition. The record does not reflect that Maxwell made any departure from his previously expressed position that if the State were to pressure DAKA to recognize the Union, then DAKA would be required to negotiate a contract with the Union. However, Wood did not ask Maxwell to do anything specifically with respect to the ATS employees or the airport facility. Meanwhile, Max- 16 A list of bargaining unit employees employed at ATS on 31 August at the airport is attached as Appendix A. 1 r Based on Tehrany's testimony, since the date on the "received" stamp of the DOT real estate office is illegible 18 A list of DAKA employees employed at the airport from 1 Septem- ber to the present is attached as Appendix B well and D'Orsi talked about Maxwell's 31 August letter. D'Orsi asked if Maxwell was aware that he was incor- rect in what he said in that letter. Maxwell responded that he was aware that the letter was inaccurate, and de- scribed the letter as a terrible mistake. Apparently this meeting resolved the temporary rift that had developed between DAKA and DOT for, on 24 September, D'Orsi wrote to Maxwell confirming that in their meeting "we agreed that the last sentence in the second paragraph of your letter was a misunderstanding." D'Orsi's letter ended with an expression of a desire for cordial relation- ships, and without mentioning the question of recogniz- ing the Union or hiring ATS employees. The record re- flects no further discussions between the Company and the State concerning these problems. The union strategy of seeking to force recognition from DAKA through state pressure had failed.1 a On 26 November, Morty Miller wrote a letter to Terry Vince requesting recognition and bargaining on behalf of the DAKA employees "in an appropriate bar- gaining unit" at the T. F. Green Airport. He renewed his request on 8 December. He received a response from Attorney Coyne, dated 4 January, declining to recognize and bargain with Local 217. E. The Alleged 8(a)(3) and (1) Violations The complaint alleges that the Respondent discriminat- ed against the ATS work force because of their member- ship in and activities on behalf of the Union, and con- certed activities, prior to 1 September 1984, and in order to discourage employees' union and concerted activities. The complaint alleges that the discrimination occurred in three specific forms: (1) the discouraging of job applica- tions, (2) failing to accord normal consideration for em- ployment to employees in the ATS work force, and (3) the continuing refusal to hire any of the ATS work force employees at the airport facility since about 3 August 1984. The General Counsel contends that the Respondent avoided and refused to hire the ATS employees in order to avoid the higher labor costs that it assumed would arise if members of the Union were hired. The General Counsel contends in his brief "that Respondent's reasons for failing to consider and hire any ATS employees are pretextual, and not even blurred with mixed-motive con- siderations." On the other hand, the Respondent con- tends (a) that the General Counsel has failed to prove that DAKA discouraged job applications, because the application process was open and known to the employ- ees, (b) that those ATS employees who submitted appli- cations were afforded normal consideration for employ- ment up to and including the point at which the Re- spondent received an unfavorable recommendation con- cerning them, and (c) the reasons none of the ATS em- ployees were hired were nondiscriminatory reasons unre- 19 D'Orsi testified that following the 20 September Wakefield meeting, Director Wood contacted Morty Miller and reviewed with him the out- come of the Wakefield conference Miller's testimony made no reference to any further contact from the State in this regard This discrepancy may be explained by the fact that D'Orsi was apparently confused at this point in his testimony by the interjections of counsel DAKA, INC. lated to their union or protected concerted activity. The Respondent's defense is based on the mutually corrobora- tive testimony of Terry Tehrany and Brian Magaw.20 It is accurate to say that throughout the chain of circum- stances that unfolded as DAKA successfully bid for the T. F. Green concession contract and prepared to open and operate its new facility, Tehrany made the major de- cisions, supervised, and coordinated DAKA's efforts while Magaw concentrated on the details of implement- ing Tehrany's instructions . Thus, both these men de- scribed in detail their initial conference in early May at Northeastern University. They agree that it was there that Tehrany first briefed Magaw on his plans, approved by Terry Vince, to "gut out" the entire existing oper- ation at the airport because of the dirty condition of the facility and the carelessness of the waitresses. He de- scribed to Magaw how the future food service at the air- port would be a fast food type of operation similar to McDonald's or Burger King, and they would not need waiter/waitresses or dishwashers. Magaw was instructed to report for work at the Roger Williams Zoo facility immediately following his upcoming vacation, and to begin planning there for that operation's part in the 4 July celebration. Magaw began work at the zoo facility in early June. Thereafter, he met with Tehrany approxi- mately once a week. Once Tehrany received the 8 June letter from the State confirming DAKA's selection as concessioner, Magaw knew that he would become the future manager of the airport facility and would be re- sponsible for preparing for its opening. Late in June and early July, he started making arrangements for vending machine locations. He also visited the airport with Di- rector of Merchandising Susan Shea and DAKA Vice President Ron Cohen concerning how to set up the gift shop, in order to comply with the State's insistence that they feature a considerable number of Rhode Island products and souvenir items. Following the meeting at which Tehrany approved the selection of Severance and Doura as assistant manag- ers, Tehrany and Magaw met again around 4 July. The purpose of the meeting was to give Magaw his instruc- tions about his responsibilities concerning preparations for the airport facility's opening, prior to Tehrany's leav- ing for his vacation. The chief topic of discussion was the hiring of the employees for the T. F. Green oper- ation. It was finally decided at this meeting not to hire the ATS work force as a group or a unit. Tehrany em- phasized to Magaw that he had spent much time observ- ing the ATS operation and had seen the "filthy food service and lethargic employees." He did not discuss in- dividual ATS employees. He said the food was not up to caliber, it was of poor quality, the service was poor, and the facility was not clean. He described how the kitchen employees were working without hats or hair restraints, 20 Magaw impressed me as an intelligent and alert young man, who logically and concisely attempted to give an accurate account of what he knew under the extreme pressure of 3 days of testimony Generally, I credit his testimony. In one minor instance, he was not candid He mis- represented the facts concerning DAKA 's intention to continue using patio furniture in the airport lobby immediately outside its eating facility The testimony of D'Orsi shows that the furnishings became permanent only on the insistence of the State 557 and smoking while they worked. He said they took smoke breaks in the food preparation area. He assigned to Magaw the responsibility of making the individual de- cisions concerning who would work at the airport. He did not restrict Magaw from selecting individual ATS applicants who met the criteria of having either fast food experience or culinary students or graduates. Pursuant to these instructions, Magaw began consider- ing and making decisions concerning which individuals to employ. In the first instance, he observed, he had pre- viously from time to time made tentative commitments to part-time DAKA employees at the zoo who desired full-time work, and former DAKA employees who wanted to return, to employ them in the future when an opportunity arose. This reduced the number of slots to be filled on his manning chart by five people. Magaw in- sisted that there was never a time when he concluded that none of the ATS employees would fit his criteria. He testified that he was willing to consider each individ- ual based on his/her merits, and never generalized or considered common drawbacks. He emphasized that he and his assistants followed his policy of automatically and initially making a reference check on every individ- ual's application. He emphasized that none were simply screened out by just reading the application and deciding not to hire him/her based on the application alone, except in instances where the applicant's experience was unrelated to the job, e.g., an automobile mechanic. He stated, "It's my standard practice that I don't hire any- body until, first of all, I check their references. I don't even interview anybody until I check their references." Accordingly, beginning 21 August, Magaw, Doura, and Kevin Condon, the manager at the zoo, began dis- tributing and receiving applications from job seekers who came to the zoo facility. As described earlier in this decision, various ATS employees, who had either seen the ad or learned of it from Miller or from their fellow employees, came to the zoo and applied.21 On the morn- ing of 22 August, Magaw and his associates began making reference checks on the 21 August applications. The reference for the ATS applicants was Ed Krzyzek. Magaw called Krzyzek and gave him the names of the ATS employee applicants, and asked for a reference. Krzyzek responded that each of the people Magaw named worked for him, but that he would not hire any of them. Magaw thanked Krzyzek and their conversation ended. Having received this adverse appraisal by Krzy- zek, Magaw decided not to offer jobs to the ATS appli- cants. Only those persons who came in and filed an ap- plication with DAKA were considered. Concerning the gift shop employees who had worked for Tele-Trip, Magaw personally checked with Henry Almonte at the airport concerning their work habits, while his assistant checked with Tele-Tnp through its parent organization, Mutual of Omaha. Magaw's criteria for hiring gift shop 21 All the ATS employees' applications received by the Respondent were placed in evidence as G C Exhs 28 (a) through (p) The applica- tions and personnel forms of employees hired for or transferred to the airport are in evidence as G C Exhs 29(a) through (ff) The applications of persons, other than ATS. employees, not hired by DAKA are in evi- dence as G C Exhs 30(a) through (x) 558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees was that he wanted persons with retail experi- ence. 22 The keystone of the General Counsel's case is the tes- timony of Edward Krzyzek, manager of ATS's airport concession. Airport Director Anthony Rosatti requested Terry Tehrany to consider Krzyzek for employment with DAKA, as a personal favor. The request came at a delicate time, when Tehrany had not received formal written confirmation that DAKA was the successful bidder. The state airport officials were among those who submitted recommendations. Pursuant to this request, Tehrany interviewed Krzyzek. He told him quite frankly that he really did not want him, and did not intend to hire the entire ATS work force because DAKA was planning a buffeteria or cafeteria type of self-service for T. F. Green, followed by a fast food operation, which would not require waitresses or utility workers. He told Krzyzek that he was offering his assistance, if Krzyzek was interested, as a favor to Rosatti. Krzyzek expressed an interest in DAKA, and Tehrany took full advantage of that interest by attempting to secure ATS's actual sales and cost figures at the airport. Krzyzek refused to supply them. Nevertheless, Tehrany arranged interviews for Krzyzek with DAKA's management for a possible job at another location. Eventually Krzyzek was offered a job with DAKA in Massachusetts at a salary less than what he had requested. Krzyzek said he rejected the offer because he did not want to leave Rhode Island. What Krzyzek really wanted, and finally requested of Tehrany, was the manager's or assistant manager's posi- tion at DAKA's forthcoming T. F. Green operation. Tehrany refused during a conversation between the two men on 19 July. Thereafter, Krzyzek attempted to ingra- tiate himself by cooperating with Tehrany at the airport in various ways, including giving him information. For example, about 24 to 26 August, he warned Tehrany that the Union was circulating a petition, and attempting to get all the airport employees to boycott the new DAKA facility when it opened. He said that the Union was going to try to make life miserable for DAKA, and sug- gested that Tehrany hire Rita Banes and Jane Olsen, Local 217's shop steward at ATS. However, Tehrany re- fused, stating he was not worried about the union pres- sure, since there was nothing he could do about it. Krzy- zek also told Tehrany on 19 July, and again on 24 August at the airport, that, if he were DAKA, he would not hire any ATS people. He discussed the deteriorated condition of the ATS airport facility, and said that if he were putting up the kind of money DAKA was, he would "clean house and not hire anybody." Krzyzek testified that he felt that he had been "led on" by DAKA, "by dangling the carrot in front of the horse." He said he felt Tehrany was using him, and pumping him for information. He also claimed that he was not disappointed that DAKA had not offered him a position, other than at Northeastern University. Despite feeling "used" and being "pumped," he nevertheless pre- 22 Magaw testified that not all of the results of the reference checks were noted on the application forms, and in some instances a favorable reference check resulted simply in the application being placed in the "Okay" stack tended to have no hostile feelings toward DAKA, a re- markably inconsistent and almost superhuman attitude under the circumstances. He then proceeded to testify concerning numerous conversations he claimed he had with Tehrany, and one or two with Magaw, but only in rare instances was he able to give more than a general idea of when these conversations occurred. In addition, later in his testimony, he characterized these conversa- tions as "infrequent." He remembered recommending Banes and Olsen to Tehrany but claimed that Tehrany replied, "We don't want any of those union people." On one other occasion, near the information desk in the air- port lobby, Krzyzek claimed Tehrany said that he "didn't want any of those f-g union people," although he confessed he could not remember any of the conver- sation that led up to this remark. He also testified that he recommended gift shop employees Diane Tomassi and Ellie Gallagher to Tehrany, but received no response. He could not remember the conversational context of this remark either. At other times Krzyzek could not re- member any of an important conversation, for example, the remarks he made to Tehrany at the 2 April bid open- ing. I am convinced that Krzyzek's testimony was strongly biased in a desire to retaliate against the Re- spondent for failing to agree to employ him at the new airport location. I am satisfied that this retaliation took the form of an attempt to assist the ATS employees, through embellished testimony, in their efforts to gain jobs with DAKA through this litigation. I find his testi- mony, for the most part, unreliable, and it is not credited except where it is specifically corroborated by the testi- mony of Magaw and Tehrany. Based on the credible evidence I find that DAKA did not actively discourage applications from ATS workers, although it did not go out of its way to cooperate with the Union. DAKA was not obligated to seek out the ATS employees at the airport or elsewhere and solicit their applications. For that matter, Krzyzek never asked DAKA to supply applications, nor did the Union, who devoted most of its efforts in the critical month of August to attempts to pressure the State to force DAKA to recognize Local 217, rather than insuring that all the ATS employees applied. DAKA's sole duty to the ATS work force consisted of affording them an opportunity to apply for jobs equal to that which was afforded others. This they did through the newspaper advertisements an- nouncing 21 August as the date on which to apply at the zoo facility, and by issuing and receiving applications to all who appeared at that time, and thereafter. The Gen- eral Counsel suggests that earlier ads, placed by Paula Clarke, bearing the telephone number of DAKA's Citi- zens Bank operation managed by Clarke, were really a covert effort to recruit for the airport. In this the Gener- al Counsel engages in mere speculation. Clarke credibly explained that the purpose of the ads that she placed was to staff a proposed expansion of the Citizens Bank oper- ation, later cancelled by the bank. In any event, these ads ran before DAKA had written confirmation that it was the successful bidder. Nor am I impressed with the argument that the fact that DAKA's name did not appear in any of the adver- DAKA, INC. 559 tisements that were intended for airport recruiting proves an unlawful motive on the part of the Respondent. I am cognizant that in certain other cases involving different facts, so called "blind ads" have been considered one factor in assessing discriminatory intent . But the Board has not held that this is the only factor. Other factors weigh against drawing that inference here. Unlike other situations, DAKA had no established presence at the air- port from which it could conduct the application and se- lection process. There's no evidence, nor is there any contention that the airport terminal contained any space suitable for this purpose, or that such space was ever of- fered. On the other hand, DAKA's zoo facility was con- veniently located not far from the airport. It was a loca- tion well known to the general public. Because it was the only eating facility at Roger Williams Park, it was readily identifiable. It was known as a DAKA facility. No effort was made to conceal the purpose of DAKA's employment activities there. Thus, when Morty Miller telephoned DAKA there and pretended to be a job seeker, the receptionist openly talked about DAKA ac- cepting applications for the future airport location. There is no evidence to show that this information would have been withheld from identified DAKA callers. Beginning on the advertised date of 21 August, DAKA accepted applications from all 16 persons who came to the zoo fa- cility seeking work with the Company at T. F. Green, including all the ATS applicants who appeared. None was refused. All were considered. The evidence shows that there was much discussion among the ATS work force to the effect that those interested in working for DAKA should go to the zoo and apply. Nor was there any talk of futility at that time. There is no credible evi- dence by any of those who did not apply to explain why they failed to do so. Only one ATS employee applied after 21 August, Tracey Smith, and this was a second ap- plication in September 1984 at a time when there were no jobs available. After 21 August, certain employees were invited to contact Terry Tehrany for consideration in the immedi- ate future. Eleanor Gallagher, the cashier at the ATS-op- erated gift shop, testified that on 31 August, as she and stockroom clerk Diane Tomassi were leaving the shop for the last time, she wished Tehrany good luck. Teh- rany answered that he wanted them to know he held nothing personal against them, and asked if they had jobs. Gallagher said she might have one in the making. Tomassi answered that she was going back to school. Tehrany replied that if anything did not work out, and if they wanted, they could come to see him in a couple of weeks. The accounts of this conversation by Gallagher, Tehrany, and Tomassi are similar. They are credited. However, I am not impressed with the additional conclu- sionary testimony by Tomassi, based on a remark alleg- edly made by Krzyzek, that she did not apply at DAKA because she felt it was hopeless or futile. Tomassi also stated, "I'm very picky about my jobs-what I pick." She also returned to school in September where she had already been accepted and registered. Tomassi was the only witness produced by the General Counsel who tes- tified to having concluded that applying at DAKA was futile. Rita Banes, ATS' assistant manager, worked mostly in the office doing book work. Banes credibly testified that one day in August, Tehrany asked her if she would be interested in working for DAKA. Banes' response was noncommittal. She said she was tired, and not enthusias- tic. He responded that she should think about it, and after a few weeks he might have something for her part time. She never pursued the matter further. Tehrany also remembered speaking to Jane Olsen, ATS' coffee shop cashier from 6 a.m. to 2:30 p.m. on weekdays, as he passed through the coffee shop one day. However, he denied having any extended conversation with her about a job. I credit his denial. Olsen testified that early in July she introduced herself to Tehrany as the Union's shop steward, and told him that the Union had asked her to find out where the ATS employees could apply for jobs with DAKA. According to Olsen, Tehrany answered that the papers were not finalized yet, and that it would be up to the personnel department to do the hiring. Tehrany denied making this statement. Al- though this incident allegedly occurred at a time when the contract between DAKA and the State had not yet been signed, there is nothing in the entire record to form the slightest basis for any suggestion that DAKA's per- sonnel department planned to take any active part, as an organization, in the hiring process for T. F. Green. Concerning the alleged discriminatory failure to con- sider and refusal to hire, the General Counsel's theory is based on economics. He contends that DAKA's sole mo- tivation in allegedly failing to consider and in failing to hire the ATS work force, was a need to maintain low labor costs in order to offer a favorable percentage of the gross to the State and still make a profit. According- ly, the General Counsel reasons that either (1) Tehrany learned at the outset of his activities at the airport that ATS was organized and planned from the start not to hire any ATS employees for this reason, or (2) having learned at a later time that Local 217 represented the ATS workers, it decided not to hire them in order to adjust its labor costs to meet its bid commitment to the State. In my view, this theory is not supported by the weight of the evidence, although admittedly Respondent was mindful of the economic impact of a union wage scale. There is nothing unlawful in Respondent's not having wanted to take into its employment the entire ATS work force, or even a majority of that work force, so long as it did not act unlawfully.23 The Respondent had no obligation to hire ATS employees. It was only required to consider and select them on the same lawful basis utilized with respect to others it considered and either selected or rejected. When the evidence is viewed according to these principles and in the context of the credible evidence, General Counsel's theory fails. At the outset it is notable that there is no credible evi- dence of antiunion animus. In fact, Morty Miller testified that he had learned from the head of his Union's Boston Globe local that they had good relations with DAKA. DAKA is simply not the classic stereotype of the antiun- 23 For that matter, an employer may even express a desire to operate nonunion, so long as he does not translate that desire into action violative of the Act Great Plains Beef Co , 241 NLRB 948 (1979) 560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ion employer who is determined to fight to the end to avoid unionization. Also it is clear that DAKA did not plot from the very beginning of its effort to obtain the T. F. Green concessions for the purposes of avoiding any possible bargaining obligation toward Local 217. The credited evidence shows that Tehrany did not know of the Union at ATS until 2 April, when he learned this fact from Krzyzek during their brief exchange after the bid opening. Tehrany's testimony in this respect is sup- ported by Maxwell's testimony and exhibits consisting of the minutes of weekly Monday morning management staff meetings at Wakefield, in which the first reference to the union situation occurs in mid-June.24 The strongest piece of evidence in support of this phase of the General Counsel's theory is the Maxwell letter to D'Orsi of 31 August. This letter contains a state- ment to the effect that DAKA had taken the existence of the Union into account in preparing its bid. I have given much study and long consideration to this document, Maxwell's explanation, and whether or not the represen- tations contained therein square with the credible evi- dence. Maxwell's explanation is not credible to the extent that it attributes the erroneous statements to exuberance or error. Certainly the letter was a "mistake" only in the sense that ever since Maxwell had it delivered by Teh- rany, he had undoubtedly regretted that he ever wrote the epistle. However, in the end, I have concluded that the deliberate representation it contains is untrue, as Maxwell confessed, just as the statement concerning the alleged duplicity by state officials was also untrue. In sum, after serious deliberation, I am convinced that the Maxwell letter is an aberration incompatible with the pattern established by the credible evidence as a whole, and that Maxwell really did consciously include these misrepresentations in a crude effort to apply pressure on the State, as he described. While this may indeed appear reprehensible to many, it is not my function in this case to pass on aggressive business tactics unless the conduct involved constitutes a violation of the Act. I do agree, however, that DAKA's decision not to hire the ATS work force as a group or an entity was made very early by Tehrany, based on his observations of dirty conditions and sluggish employees in service, which he described in detail. Indeed, the State's bid spec- ifications suggest a strong desire to upgrade the facilities. Accordingly, I am persuaded that the decision to "gut" the whole ATS operation and only hire on an individual basis, may reasonably be inferred to have been included in Tehrany's presentation to Terry Vince on 16 March, which was approved. Tehrany's conclusions with respect to the dilapidated condition of the ATS facilities is amply supported in the record by the testimony of state officials D'Orsi, Almonte, and Carcieri. Almonte and D'Orsi, in particular, testified concerning the State's desire to upgrade the airport concessions, which they considered to be a "black eye" and which "cast a shadow" on their effort to improve the airport. It is clear 24 Maxwell testified, credibly, that Tehrany's discovery that ATS had a union came up during Monday staff meetings a week or two after 2 April through a comment from Ron Cohen, but conceded that he knew shortly after 2 April because Tehrany's report had been talked about in the Wakefield office that ATS was aware of the State's intentions, and being unwilling to make the needed improvements, declined to bid. In fact, Edward Krzyzek and cook Jennie Lawrence both described the ATS plant as "deteriorated." Further evidence of the importance that the State assigned to ac- quiring top flight concession facilities is made obvious by a comparison of the clauses in the license agreement, signed by ATS with the State, and that signed by DAKA. While the ATS document contains only a pass- ing reference to cleanliness, the ATS lease is replete with explicit standards relating to cleanliness, quality, and service, stated in the strongest possible terms. Beginning with the preamble in the DAKA lease, there are a mini- mum of eight clauses relating to cleanliness, quality of service, quality of food, courtesy and efficiency, stand- ards of sanitation, improvements, and maintenance. One such clause specifies, "All food, drink, beverages, and other items shall be of the highest quality, wholesome and pure." Another requires that the Company's employ- ees "shall be clean, courteous, efficient, and neat in ap- pearance at all times," and the Company is required "to dispense with the services of any employee whose con- duct is loud or offensive, or otherwise detrimental to the best interests of the department." This agreement, signed in July between DAKA and the State, leaves little room for doubt that DAKA was expected to be selective in the employees it hired in order to effect a dramatic turn- around of the condition of the concessions at the airport. This they proceeded to do in a consistent manner. Thus, Terry Tehrany outlined his plans for the new air- port operation to Brian Magaw in May in their meeting at Northeastern University. He emphasized the poor con- ditions at the airport and his determination (clearly based on a prior decision) to correct these measures by install- ing a different type of eating facility with substantially different employees. This concept was reemphasized to Magaw in his planning session with Tehrany about 4 July, at which time Magaw received his instructions con- cerning hiring. Tehrany told Magaw not to hire the ATS workers as a group, but to hire individuals who were qualified based on the type of industry experience DAKA desired. Within those guidelines he gave Magaw complete discretion concerning which individuals to select. In accordance with DAKA's policy manual, Magaw received the applications personally, or through his assistants. In his credible testimony he emphasized that on receiving any application, his first move was to make a reference check. This also follows the procedure set forth in DAKA's policy manual. The reference for the 16 ATS applicants who applied on 21 August, was ATS Manager Krzyzek. When Krzyzek told Magaw by phone that he would not hire any of these persons, Magaw deleted their names from further consideration. He testified, without contradiction, that this was the same procedure he utilized in considering other appli- cants. At the hearing, the General Counsel introduced into evidence three sets of applications for jobs with DAKA at the airport. An analysis of the applicants hired by DAKA reveals that almost all of them had much more and broader restaurant or fast food experience than the ATS work force, almost all of whom had only DAKA, INC. 561 worked at ATS. The most obvious exception was one of the bartenders for ATS, who had previously worked for two large hotels. This apparent discrepancy is readily ex- plainable by the fact that Krzyzek told both Tehrany and Magaw that he suspected an unidentified ATS bartender of watering drinks. Likewise, the gift shop employees hired by DAKA had considerable previous retail experi- ence. Lastly, an examination of the applications of the employees, other than ATS employees, not hired by DAKA (G.C. Exh. 30), reveals that many of these re- jected applicants had more and varied food service expe- rience than did the ATS work force. Thus, the applica- tions, placed in evidence by the General Counsel, do not support the General Counsel's contention that Respond- ent acted discriminately. As discussed earlier in the por- tion of this decision relating to 1 he alleged discourage- ment of applicants by the Respondent, after 21 August certain DAKA employees were invited by Tehrany to contact him at a later time concerning the possibility of employment. This action on Tehrany's part is hardly consistent with a supposed desire on Respondent's part to discriminate against these employees because of their union membership or sympathies. Nor am I swayed by the strained rebuttal testimony by General Counsel's witnesses concerning the wearing of union buttons in March, from which I am asked to infer that Tehrany saw during his visits and thereby gained an earlier knowledge of the Union's existence at ATS. While I do not believe these employees intentionally made misrepresentations during this testimony, the Gen- eral Counsel's efforts strained their memories beyond their abilities and led them into making unwarranted guesses, assumptions, and conclusions. They were espe- cially weak in describing the times of these incidents and ultimately reveal that these buttons were worn on their uniforms in inconspicuous places and behind the counter. Likewise, I find unreliable their testimony with respect to Tehrany's purported inability to see the cash register from the seating area of the restaurant. Thus, I find that the General Counsel has not proved that the Respondent discriminated against the ATS work force by failing to consider them for employment, and by discriminately re- fusing to hire them, in violation of Section 8(a)(1) and (3) of the Act. Furthermore, even if it were found that the Respondent in part entertained an antiunion motive in the consideration and selection of its employee comple- ment, I would further find that the Respondent, in any event, would not have hired a majority or a substantial number of ATS employees or would have selected em- ployees in a different manner, because of its dominating lawful desire to raise the poor image of airport services created by the former ATS operation, as described above. F. The Alleged 8(a)(5) Violation The General Counsel contends that the Respondent is the successor to ATS's bargaining obligation toward the Union from and after 1 September 1984, because DAKA's work force, he argues, would have reflected the Union's majority status if the Respondent had not un- lawfully discriminated against them. I disagree. The gov- erning test for assessing a successorship issue has been es- tablished by the Supreme Court of the United States in the case of NLRB v. Burns Security Services, 406 U.S. 272 (1972). The controlling feature of that test is whether there is a substantial continuity of business operations from the predecessor to the successor. Factors to be con- sidered in making this determination are the continuity of the operation, supervision, machinery and equipment, methods of production, type of product, and the continu- ity of the work force and their working conditions. These various indicia are to be examined in the context of the total circumstances involved in each individual case. For this reason, the various precedents cited by the parties, which I have fully considered, while helpful, are by no means determinative, since to a very real extent each case must be determined on the basis of its own set of facts. Turning to the instant case, it is evident at the outset that there exists what might be described as a continuity of industry, since both ATS and DAKA operate eating establishments in the food service industry. However, at this point the similarity ends to the large extent, since it appears that ATS concentrates its efforts in the areas of airports and the sports industry, while DAKA has been most successful in large institutional feeding facilities in company and college cafeterias, and museums. There is no evidence concerning the corporate structure or inter- organization of ATS. Consequently, a comparison with the highly compartmentalized and specialized structure of DAKA's organization in Wakefield, cannot be made. It is clear, however, that considerable differences exist between the two enterprises at the corporate level. DAKA also has rather recently embarked into building a chain of fast food establishments, of which the T. F. Green operation was one of three being developed at the time of the hearing. There is no evidence that ATS of- fered any similar type of service. Turning to a consider- ation of the ATS and DAKA operations at the airport, it is immediately clear that there are substantial differences in these operations. Thus, the General Counsel's remark in his brief that "put in sophisticated legal terms, an air- port coffee shop, lounge and gift shop is an airport coffee shop, lounge and gift shop," represents a gross oversimplification of the situation. Although both ATS's concession and DAKA's oper- ation served the same categories of customers in the same building on a profit-and-loss basis on behalf of the same client, their relationship with that client was totally different. ATS was a licensee that operated a "turn key" operation. ATS made no capital investment and operated entirely with state equipment and furniture. In DAKA's agreement with the State, it was granted a lease and re- quired to make a considerable capital investment and purchase furniture and equipment of its own. Moreover, as has been previously discussed, ATS operated under only rudimentary requirements in the license agreement concerning sanitation, and quality of food and service, while DAKA's lease from the State contains extensive standards and regulations designed to dramatically up- grade the quality of concession services in the airport. This factor cannot be ignored as a significant distinction. Obviously, ATS thought it was an important departure 562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from the way it had been permitted to operate in the past, because it caused them to decline to bid. Thus, DAKA did not take over any assets from ATS. The old equipment utilized by ATS was disposed of. The only part ATS played in the transition to the new operation was simply to grant access to the premises to DAKA, in order to make measurements and assessments of what work needed to be done in the demolition and construc- tion phase. It also allowed DAKA setup time on 31 August in order that the temporary cafeteria service would begin to function on time on 1 September. Secondly, while, as the General Counsel observed, there was no hiatus of operations in the traditional sense. There was a period between 1 September 1984 and Janu- ary 1985, during the demolition and construction phase of the changeover, in which DAKA offered very differ- ent services from those that finally emerged on comple- tion. Thus, on 1 September, the upstairs lounge closed for 4 months and all alcoholic beverages were served downstairs. When the upstairs lounge reopened as a com- pletely new facility, wall-to-wall, alcoholic beverage service downstairs was permanently discontinued. Like- wise, food service in the new upstairs lounge was dra- matically altered. Downstairs food service temporarily was offered in a segment of the lobby area in the form of buffeteria or cafeteria service, while the old restaurant was demolished and renovated. The reconstruction of the downstairs restaurant included expansion into an area previously utilized only for storage. The gift shop was closed and completely moved across the airport lobby, into an area never utilized for this purpose before. Con- sequently, the gift shop reopened as a new facility in every respect. When the downstairs food service facility reopened, it was in the form of a completely new fast food operation, which, unlike ATS' restaurant, did not have waitresses or table service. Raymond Reed, vice president of marketing for Paramount Restaurant Equip- ment Corporation of Providence, testified extensively concerning the numerous and extensive changes that oc- curred during the demolition, construction, and renova- tion stages of the changeover.25 It was Paramount's con- struction subsidiary that performed these operations. It is unnecessary to list in this decision every last detail of the many alterations that were made. Suffice it to say that they were extensive, and included such major items as the demolition of walls, the erection of new walls at dif- ferent locations, the replacement of flooring, relocations, enlargements, the creation of new corridors, and the in- stallation of new plumbing, heating, ventilation, and lighting. The DAKA airport operation has different supervisory personnel from the top down. While operating schedules remain relatively the same, food and gift products are substantially different. While ATS operated the gift shop only a short time, after the takeover from Tele-Trip, in a sort of caretaker capacity, DAKA was awarded the gift zs Morty Miller also testified about the differences between the ATS facilities and those installed by DAKA, using photographs Because he was not actively involved in the demolition and construction process, his description here is much more general and less reliable Unlike his ac- count of other events, his testimony in this area tended to minimize the extent of the renovation to a far greater degree than was warranted. shop concession in conjunction with the food service, al- coholic beverage service, and vending machine conces- sions. It is true that both ATS and DAKA were forced to obtain their newspapers, magazines, and books from a single supplier, which had a virtual monopoly on that business in the area. However, the parallel between the two operations ends at this point. ATS placed no empha- sis on Rhode Island products, a constant source of irrita- tion to the State, while DAKA, pursuant to an explicit provision in the lease agreement, concentrated on pro- moting items manufactured in Rhode Island. Further- more, the DAKA gift shop was entirely new, in that it was moved to a completely different location and inte- grated with DAKA's eating facility downstairs in the airport terminal. The above considerations are only the major differ- ences existing between the manner in which ATS operat- ed, and the workings of the new facility owed and oper- ated by DAKA. A final consideration is the continuity of the work force, which in the final analysis is the de- termining factor. As the General Counsel noted in his brief, the central requirement for a successorship is whether the employer utilized a work force that reflects a union majority status. The General Counsel argues, "To the extent that the GC's Section 8(a)(3) claims are deemed fully or largely meritorious, then the majority status element of the successorship case is established." Implicit in that observation is the unwritten concession that the converse is also true. Thus, if an employer does not hire a majority or a substantial number of the prede- cessor's work force for reasons unassociated with unlaw- ful discrimination, there is no successorship. Since I have found that the Respondent did not hire and would not, in any event, have hired any substantial number of ATS employees for lawful reasons, there is no continuity of the work force in this matter, and consequently no successorship exists. I find that under these circum- stances the Respondent had and has no obligation to bar- gain with the Union, and consequently the Respondent has not refused to bargain in good faith with Local 217, in violation of Section 8(a)(5) of the Act. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent has not discouraged or attempted to discourage ATS employees from filing job applica- tions, nor has it failed to accord normal consideration for employment to employees in the ATS work force, nor refused to hire any of the ATS employees because of their union membership, sympathies, and activities, in violation of Section 8(a)(1) and (3) of the Act. 4. The Respondent is not the successor to ATS, and, consequently, has not refused to bargain in good faith with the Union in violation of Section 8(a)(1) and (5) of the Act. 5. The Respondent has not violated the Act in any other respects. DAKA, INC. 563 On the foregoing findings of fact and conclusions of law and the entire record, I issue the following recom- mended26 ORDER The complaint is dismissed. Janeann Orsini Gift Shop Carol Patalano Second floor lounge Ernie Reinhardt Utility Tracey Smith Restaurant Diane Tomassi Gift Shop Kim Tolley Restaurant Julie Wagoner Restaurant 26 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 APPENDIX B Employees Employed by DAKA at T. G. Green Airport during the Period September 1, 1984, until the Present APPENDIX A Name & Date of Hire or Transfer Charit Nu ent-8/30/83 Bargaining Unit Employees by Air Terminal y g Marion Corning-8/28/84 Services at T.G. Green Airport as of August 31, Tracey Gallagher-8/28/84 1984 Thomas Gibb-8/28/84 Alisa Machado-8/28/84 Name Location Jean McAnaugh-8/28/84 Mattie Albino Ground floor bar Jean O'Rourke-8/28/84 Mary Banes Restaurant Ricky Upole-8/28/84 Sherill Bouthillier Second floor bar Tammy Wagoner-8/28/84 Joe Bracken Restaurant Susan Wayne-8/28/84 Alyce Burke Second floor bar Deborah Jones-8/29/84 Pat Caniglia Restaurant Julio Sanchez-8/29/84 Pat Clancy Restaurant Donna Engstrom-8/31/84 Jack Coletti Second floor bar Ruth Engstrom-8/31/84 Diane Denker Restaurant Cheryl Aponik-9/1/84 Thelma Dufresne Restaurant Erica Engstrom-9/1/84 Gabrielle Ellis Restaurant Steve Moretti-9/1/84 Olive Fitzpatrick Restaurant James Orenberg-9/1/84 Beth Fuyat Restaurant Arnold Engstrom-9/4/84 Eleanor Gallagher Gift Shop Linda Mardigan-9/7/84 David Ghigliotty Restaurant Craig DeVito-9/10/84 Thong Hang Restaurant Renata Wolney-9/11/84 James Hughes Restaurant Robin Gross-9/12/84 Phyllis Kelly Restaurant Michael McIntyre-9/14/84 William Kingma Restaurant Gregory Lowe-9/17/84 Jane La Fazia Second floor lounge Cindy DeGrandpre-9/26/84 Jennie Lawrence Restaurant Gully Keating-10/15/84 Mike Leighton Restaurant Kim Crossley-10/22/84 Claire Matteson Restaurant David Tonge-10/23/84 Dawn Monteiro Restaurant Michael Maguire-11 /8/84 Bernadette Morrell Restaurant Jane Poulin-11/12/84 Laurie Napolillo Restaurant Kimberly White-12/2/84 Jane Olsen Restaurant Robert McCollough-Wk. 12/29/84