Systems Management, Inc

SYSTEMS MANAGEMENT Systems Management, Inc and Service Employees International Union, Local 29, AFL-CIO and International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 327, AFL-CIO, Party to the Contract First Union Management, Inc and Service Employ- ees International Union , Local 29, AFL-CIO International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 327, AFL-CIO and Service Employees Interne tional Union, Local 29, AFL-CIO and Systems Management, Inc, Party to the Contract Cases 6-CA-19321, 6-CA-19465, 6-CA-19407, 6- CB-7147, and 6-CB-7194 February 14, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 9, 1988, Administrative Law Judge Thomas R Wilks issued the attached decision Re spondent Systems Management, Inc (Systems) filed exceptions and a supporting brief The Gener al Counsel filed a brief in answer and a brief in support of limited cross-exceptions Systems filed an answering brief and Respondent First Union Management, Inc answered the General Counsel's cross-exceptions i First Union also filed a motion to sever cases and the General Counsel filed an op- position The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings 2 and i The General Counsels cross-exceptions are timely pursuant to the Board s Rules and Regulations Sec 102 46(e) 2 In adopting the judge s finding that Respondent Systems Manage ment Inc violated Sec 8(ax3) and (1) by discriminatorily refusing to hire the predecessor employees at the 300 Sixth Avenue building we rely on the fact that Systems decided that the building s employees would be represented by Painters Local 327 before executing its service contract and before hiring any employees to staff the building We also note that Systems alleged past practice of seeking new employees through a blind advertisement that did not identify the location of the work had the effect in this case of preventing the predecessor employees from learn mg that their jobs were to be terminated and that if they wished to con tine to work at the building they must apply to Systems for employ ment Further we agree with the judge that Systems President Cicero s March 20 1986 letter indicates that Systems wished to avoid recognizing and bargaining with Local 29 We also note that the predecessor employ ees were not notified until just before Systems took over the contract and new employees had already been hired that their services were to be ter mmated These facts amply support a prima facie case that Systems re fusal to hire the predecessor employees was discrmunatonly motivated See Shortway Suburban Lines 286 NLRB 323 (1987) compare Vantage Petroleum Corp 247 NLRB 1492 ( 1980) We also agree with the judge that Systems has failed to bung forward convincing evidence to rebut the puma facie case 1075 conclusions3 and to adopt the recommended Order 4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that Respondent Systems Man agement, Inc, New Castle , Pennsylvania, its offi- cers, agents, successors, and assigns, and Respond- ent International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 327, AFL-CIO, its officers, agents, and rep resentatives, shall take the action set forth in the Order 8 In adopting the judge s conclusions with respect to the Respondents recognition of Painters Local 327 at the Porter Building based on cards signed in September 1986 we note that employees subsequently indicated that they did not wish to be represented by Painters Local 327 Howev er thereafter a majority designated Painters Local 327 as their represent ative and there was no showing of card invalidity with respect to either of the two designations Moreover employees ratified the contract that was thereafter signed after the second majority designation for Painters Local 327 Therefore the employee disavowal of Painters Local 327 is without consequence 4 In adopting the ,fudges dismissal of the 8(a)(3) and ( 1) allegations against Respondent First Union Management Inc we concur in the judge s conclusion that it is unnecessary to reach the Respondents 10(b) argument It is similarly unnecessary to rule on First Union s motion to sever cases In adopting the judge s Order we note that we reaffirmed the appro priateness of the backpay remedy applied here in State Distributing Co 282 NLRB 1048 (1987) Charles H Saul Esq, for the General Counsel Henry J Wallace Jr Esq (Reed Smith Shaw & McClay), Pittsburgh, Pennsylvania, for Respondent Systems Management, Inc Domenic A Bellisario Esq (Bellisario & Pon tier) and R Bruce Moore Esq, of Cleveland, Ohio, for Respondent First Union Management Ernest B Orsatti Esq (Jubehrer Pass & Intrieri) of Pitts burgh, Pennsylvania for the Charging Party DECISION STATEMENT OF THE CASE THOMAS R WILKS, Administrative Law Judge Pursu ant to unfair labor practice charges filed on 10 July 1986 in Cases 6-CA-19321 and 6-CB-7147, on 11 August 1986 in Case 6-CA-19407, and on 3 September 1986 in Cases 6-CA-19465 and 6-CB-7194 with Region 6 of the National Labor Relations Board by Service Employees International Union, Local 29, AFL-CIO (Local 29), consolidated complaints issued on 2 March 1987 against Systems Management, Inc (Systems), First Union Man agement, Inc (First Union), and International Brother hood of Painters and Allied Trades of the United States and Canada, Local 327, AFL-CIO (Local 327) The cases were all consolidated and were subsequently fur ther consolidated with cases from Region 8 prior to the trial at which I severed the Region 8 cases from the Region 6 cases and remanded the Region 8 cases to the 292 NLRB No 125 1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Regional Director for processing of settlement agree ments The remaining consolidated complaint as amend ed alleges inter alia that Systems has engaged in unfair labor practices within the meaning of Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act (the Act) that Respondent First Union engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act and that Local 327 engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act Respondents answers admit the respective jurisdic tional allegations and deny the commission of any unfair labor practices On 30 March 1987, First Union filed with the Board a Motion to Sever and Motion for Summary Judgment On 3 April 1987, the General Counsel filed an opposing motion with supporting brief By Order dated 21 April 1987, the Board Denied the Motion to Sever and Motion for Summary Judgment in which First Union raised and argued a 10(b) issue The trial before me commenced at Pittsburgh, Penn sylvania, on 28 April 1987, and continued thereafter on 29 and 30 April and 6 and 7 May 1987 On 25 June 1987, the General Counsel filed a posttnal brief Respondent s briefs were filed on 31 July and 4 August 1987 The General Counsels answering brief was filed 21 August 1987 The General Counsel argues and alleges that 1 First Union unlawfully caused its new janitorial sub contractor, Systems, to refuse to hire the predecessor janitorial subcontractors employees 2 Systems discnmmatonly refused to hire the prede cessor janitorial employees at the 300 Sixth Avenue building in downtown Pittsburgh pursuant to the unlaw ful request of First Union 3 Systems discriminatonly refused to consider for hire and to hire the predecessor janitorial employees at the 300 Sixth Avenue building and at the Porter Building a nearby location where it had also been subsequently en gaged by a third party, in order to avoid the obligations of a successor to bargain with Local 29 4 Systems unlawfully refused to recognize and bargain with Local 29, which had represented the predecessor janitorial employers employees and unilaterally institut ed changes in the janitorial employees terms and condi tions of employment at both the 300 Sixth Avenue build ing and the Porter Building, in violation of Section 8(a)(1) and (5) of the Act 5 Systems rendered unlawful assistance to the Painters with respect to its employees at the First Union Building and at the Porter Building and unlawfully recognized the Painters and entered into collective bargaining agree ments at each of those facilities, in violation of Section 8(a)(1) and (2) of the Act 6 The Painters unlawfully accepted recognition from Systems at the First Union and Porter Buildings and un lawfully accepted dues pursuant to a union security agreement in collective bargaining agreements executed with Systems covering, respectively, employees at the First Union and Porter Buildings, in violation of Section 8(b)(1)(A) and (2) of the Act Certain other coercive conduct was alleged in the complaint and litigated, but not argued in the General Counsel s brief Respondent argued that there is no causal connection between Respondent First Union and the hiring motiva tion of Respondent Systems, and that the hiring of new employees by Systems, rather than the retention of its al leged predecessors employees at two downtown Pitts burgh office buildings where First Union and a third party had engaged it to provide cleaning and mainte nance services, was effecutated in accordance with non discriminatory business reasons and its past policy and practice Respondents argue that the General Counsel has failed to prove unlawful motivation, and that even had unlawful motivation been proven, the General Coun sel has failed to prove that a majority of predecessor em ployees would have been hired had they been considered and offered positions, but that on the contrary it is proven that Local 29 would not have had a majority representational interest in any event, and that no bar gaining obligation would have arisen It is further argued that the General Counsel has failed to prove that Sys tems' recognition of Local 327 as bargaining agent was based on other than its good faith belief, not proven to be inaccurate, that Local 327 was designated as such by a majority of its employees at both locations On the entire record of this case, including evaluation of documentary evidence and the much disputed testimo ny of witnesses and their demeanor, and consideration of exhaustive and lengthy briefs, I make the following' FINDINGS OF FACT I THE BUSINESS OF RESPONDENTS At all times material Respondent Systems, a Pennsyl vania corporation with an office and place of business in New Castle Pennsylvania has been engaged in provid ing janitorial and cleaning services and Respondent First Union, a corporation with an office and place of business in Cleveland Ohio has been engaged in the manage ment operation and/or rental of office buildings includ ing an office building located in Pittsburgh, Pennsylva nia known as the 300 Sixth Avenue building During the 12 month period ending 30 June 1986 Re spondent Systems in the course and conduct of its oper ations performed services valued in excess of $50 000 for customers such as First Union Management, Inc which are themselves directly engaged in interstate commerce During the same period Respondent Systems, in the course and conduct of its operations, purchased and re ceived at its Pennsylvania facilities products goods, and materials valued in excess of $50 000 directly from points outside the Commonwealth of Pennsylvania, and pur chased and received at its Pennsylvania facilities prod ucts, goods, and materials valued in excess of $50,000 from other enterprises which had received the products goods, and materials directly from points outside the Commonwealth of Pennsylvania I Counsel for the General Counsels and Systems unopposed motions to correct transcript are granted SYSTEMS MANAGEMENT During the 12 month period ending 31 July 1986, Re spondent First Union, in the course and conduct of its business operations described above, derived gross reve nues in excess of $100,000, of which in excess of $25,000 was derived from First Federal Savings and Loan Asso ciation of Pittsburgh First Federal Savings and Loan Association of Pittsburgh is engaged in the operation of consumer and commercial banking in Pittsburgh, Penn sylvania, and at various other locations and leases space in Respondent First Union s 300 Sixth Avenue building During the 12 month period ending 31 July 1986, First Federal Savings and Loan Association of Pittsburgh, in the course and conduct of its business operations de scribed above, derived gross revenues in excess of $500,000 and in the course and conduct of its business operations described above, transmitted checks valued in excess of $50,000 to out of state banks for collection pur poses During the same period, First Federal Savings and Loan Association of Pittsburgh, in the course and con duct of its business operations described above derived at least $50,000 in revenue from investments made out side the Commonwealth of Pennsylvania Respondent Systems is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act Respondent First Union is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II LABOR ORGANIZATIONS Local 29 is now, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act Local 327 is now and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act III FACTS A Background Historically, until the early 1970s, the practice in downtown Pittsburgh had been that office building owners and operators employed their own cleaners and janitors who were represented by Local 29 in a multiem ployer bargaining unit Thereafter, independent national cleaning contractors commenced with greater frequency to be hired by the building owners Local 29 successfully organized the employees of these contractors and there after represented them as it had the employees of the building owners Bargaining between Local 29 and the employers apparently was effectuated through the Office Building Association of Pittsburgh (OBAP), which re sulted in a standardized contract that provides for a 40 hour workweek The General Counsels witnesses testi feed that there was a frequent rebidding of contracts and therefore a turnover of contractors at any particular building every few years, but that the practice had been for the succeeding contractor to retain its predecessor s employees and to recognize and bargain with Local 29 Local 29 maintains in its labor agreements a clause which recognizes it as exclusive bargaining agent, not only for all bargaining employees at the designated build 1077 ing, but also for those employed in the City of Pitts burgh, Allegheny County, and surrounding counties In the winter of 1985-1986 the OBAP engaged in concessionary bargaining which precipitated picketing by Local 29 Also thereafter, several major building owners/operators engaged succeeding contractors who attempted to hire new employees rather than to retain the predecessor employees, which resulted in picketing by Local 29 at least at some of these sites Local 29 Sec retary Treasurer Ralph Terry testified that at one loca tion the succeeding employer hired some' of the prede- cessor s employees but also hired new employees when it changed the operation from that of full time employment to part time employment with an enlarged work force Although Terry testified that it is normal for the succes sor employer to voluntarily notify Local 29 of its as sumption of work and to retain the same employees and to recognize Local 29 Business Agent Keith Pipes ad mitted that on learning of a successor contractor, Local 29 usually visits the site on the first day that the succes sor starts work and will either picket, or attempt to make applications for employment, or to talk to the new [contractor] General Counsels witness Samuel Gund lach, the vice president of a competitor cleaning contrac tor, Pritchard Services, Inc, admitted in cross examina tion that it is the local practice for Local 29 to picket all contractors who do not acquiesce to their recognition and contract However, Patrick Cassese, president of an other competitor contractor, corroborated Terry but also admitted that he recognized Local 29 before he hired the predecessor employees when there existed a site con tract and that it was area practice to do so Thus, the record is not entirely clear regarding the local practice about whether the retention of former employees has customarily resulted from the successors initiative or from the initiative of Local 29, including picketing and assertion of its jurisdictional and area standards claims It is clear that some downtown Pittsburgh owners/ operators had recently attempted to obtain economic concession from Local 29, and had hired some non Re spondent contractors who within the last 1 or 2 years did not follow the customary procedure of retaining their predecessors full time employees First Union manages a downtown Pittsburgh highnse office building at 300 Sixth Avenue Pipes testified that Local 29 has represented the employees in the custodial unit employed at 300 Sixth Avenue for over 30 years and that until Systems advent the employees had been retained by all the succeeding contractors The bargain ing relationship had arisen between the direct employer of the cleaning persons i e either owner or contractor through OBAP, but Local 29 had never maintained direct contract relations with First Union B Events Leading to First Union's Contract with Systems The record evidence of Cleveland Ohio based First Union s earliest performance as operations manager of 300 Sixth Avenue appears to be in 1983 In that year a cleaning contract between First Union and National Cleaning Contractors expired in September First 1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union's operations manager George Sirow , testified that pursuant to its practice, First Union, prior to expiration of the National contract, notified its on site manager, who in turn resorted to the `marketplace " and solicited bids from a variety of contractors, which in turn were submitted to the Cleveland headquarters Sirow thereaf ter consulted with his manager and with his superiors, but exercised his authority and made the decision to award the contract to a particular bid based on the dollar value of the bid The successful bid was that made by Commercial Property Services, Inc (CPS) which, like National, was in Pittsburgh CPS executed a con tract with First Union on 23 November 1983 after having commenced its services on or about 1 October 1983 That contract was terminable as of 1 October 1985 It provided for 10 full time employed cleaning personnel based on full building occupancy, i e, one day porter/freight operator, eight night cleaners , and one night supervisor General Counsels witness Cassese of CPS testified that he recognized Local 29 and assumed the "existing contract in place with Local 29 " He testi fled with respect to making his bid to First Union Well, it's no secret that [Local 29] was in the build ing so we knew the economics And during the bid ding process we got a copy of the contract and made sure the economics were the same as we had in other buildings because there were some wage scales differentials in various buildings that 29 rep resented Cassese testified that pursuant to the `custom in the in dustry, ' prior to the hiring of any employees he there fore recognized Local 29 as representative of the clean mg employees at 300 Sixth Avenue, all of whom he had already intended to retain Cassese testified that as the second ann'versary of his Sixth Avenue contract ap proached he was hopeful of obtaining a second 2 year term In late 1985 , he was informed by Sirow that First Union had elected to terminate the contract but he was invited to participate in the rebidding process Cassese testified that at some point in the rebidding process there was a conversation with Sirow as follows There was discussion regarding if we would consid er submitting a bid under our non union Cleveland Cleaning and Maintenance Operations Cassese confirmed counsel for the General Counsel s leading question that yes, it was Sirow who made that suggestion Cassese could not recall whether this conver sation occurred by telephone or in person He did not specify a date nor the full context of conversation He merely testified that he declined the suggestion " Cas sere is also the owner of Cleveland Cleaning and Mainte nance Operations, which employs nonunion represented employees and which performs services for First Union at locations in Cleveland In October 1983, Cassese received written notification of the contract termination and the solicitation for CPS' rebidding Cassese testified that the following events transpired He telephoned Sirow for the first contact with him and arranged a meeting in Cleveland which was held at Sirow s office on or about 27 November Present also were Mike Biddle , vice president in charge of CPS' Pittsburgh operations, and Lee Chilcotte, be lieved by Cassese to be an attorney for First Union Nei ther was called as a witness Cassese testified that a gen eral discussion ensued but that it was stated that because he was in the midst of contract negotiations with Local 29, it was difficult for CPS to look at economics Any cost reduction to be made to First Union was attendant on wage concessions obtained from Local 29, and that in absence of such an assured concession he could not tender a lower bid It was stated that therefore the con tract would be awarded to Pritchard Services, Inc Cas sese testified Well, I questioned how they [Pritchard] could do it less economically than we could since we were dealing with very defined economics in the labor agreement, and, I believe, at that point in time, Mr Sirow expressed the fact that it was Pritchard s problem and they were intending to do it non union, and the economics were substantial enough that the business decision had to be made Cassese did not explain who the they' were who in tended "to do it non union," i e , whether it was Pntch and or First Union He gave no further context Subse quent to the meeting, Cassese submitted to Sirow a writ ten bid dated 3 December 1985 (after the Pritchard con tract execution) in which he stated the terms on which CPS would revise 300 Sixth Avenue in the event of de fault of its replacement contractor, and where he ac knowledged that the cancellation decision was purely economic " The pricing summary provided for 1 full time porter, 1 full time freight elevator operator, 15 part time cleaners, and 1 part time supervisor for a total annual wage cost of $104 000 compared to the $152,726 annual wage cost at its prior contract The expired con tract set forth that annual costs, excluding service fee of $236,924 88 The rebid offered $153,020 The use of part time personnel is inconsistent with the standard Local 29 contractual mandate for a 40 hour week In cross examination, Cassese testified that his bid to First Union reflected the labor cost factor that he antici pated as a result of the ongoing negotiations with Local 29, and that Sirow stated at the November meeting that the basis of his award was economics Samuel Gundlach of Columbus, Ohio, is vice president of Pritchard and is responsible for its north central oper ations, which includes Pittsburgh Gundlach testified that Pritchard utilizes both full time and part time employees dependent on its own and its client 's desires, but that he has found that employees who work a 4 or 5 hour shift are far more productive than full time employees because of the lack of need for breaks and the ability to sustain a night shift with less fatigue He testified about the fol lowing sequence of events involving First Union's solici tation of bids for 300 Sixth Avenue in late 1985 Gund lach and his Pittsburgh branch manager met with Sirow in Cleveland in mid September (The branch manager was not called to testify) A generalized conversation oc curred regarding a possible national contract with First SYSTEMS MANAGEMENT Union A specific immediate bid for cleaning services for 600 Sixth Avenue was solicited Gundlach gave no de tails of the conversation and alluded to no union refer ence Thereafter, Gundlach met twice with Robert Becky, First Union's property manager assigned to 300 Sixth Avenue, and also engaged him in a telephone con versation in early October The meetings occurred at the site, the first of which occurred about 1 October when the building was inspected by Gundlach There was a discussion of the job requirements were discussed Gund lach testified that during this discussion and on "several" other undated and unspecified occasions Becky stated "At that point in time that it was their desire to have a non union contractor in there and that had been his rec ommendation for several years " Gundlach did not give the general or precise context of the discussion within which these statements arose, i e, what comments by either him or Becky preceded or precipitated the refer ence to a nonunion contractor On counsel for the Gen eral Counsel's questions about whether Sirow had made similar remarks, he testified In the bidding process and through several negotia tions it-Mr Sirow expressed the fact-an interest that he would like to see us bid a non union, and if we could do that I said, yes, we could This expressed "interest" was not clarified by Gundlach s testimony, i e, whether it was baldly verbalized or merely implied by Sirow or inferred by Gundlach, de manded, suggested, or merely queried Neither were dates, circumstances, and contexts given Prichard was awarded a cleaning contract for 300 Sixth Avenue effective 1 December 1985 through 30 No vember 1988, and mutually terminable on 30 days ad vance notice or by First Union after 3 days' notice on failure of performance Attached to the agreement was an "annualized total cost analysis" of $152,576, including $116,020 annual wage costs to be incurred by First Union for 2 part time day cleaners, 15 part time night cleaners, 1 part time night supervisor, 1 full time day porter and 1 full time elevator operator Gundlach testified that pursuant to his 16 years in the industry, 7 of which included Pittsburgh except for the preceding year of turmoil," it has been the industry practice in downtown Pittsburgh to automatically hire the employees already on the site Furthermore, he testi feed that in the past on occasion or occasions when avail able for transfer Pritchard has hired his predecessor's employees at an unspecified location where there had been no union representation in order to simplify the transition and to obtain employees who have specific knowledge of the on site job requirements and routines, thus resulting in an economic benefit of avoiding unpro ductive training time On commencement of its contrac tual performance, Pritchard did not retain the cleaning employees formerly employed by CPS He did so despite his testimony above and testimony elicited in cross exam ination that traditionally Local 29 will picket and demand recognition for any nonunion contractors in downtown Pittsburgh His contract also set forth part time positions that appear to conflict with the standard 1079 Local 29 labor agreement which set forth a 40 hour workweek He testified without contradiction that Local 29 threatened to, and did picket Pritchard at 300 Sixth Avenue everyday for the first full week of its perform ance and further that the International union agents threatened to transport persons from Pittsburgh to New York City to engage in informational picketing at sites there where Pritchard was performing $40 million worth of business After a week Pritchard terminated the new part time employees, rehired the former full time Pritch and employees and recognized Local 29, and agreed to effectuate the existing wages, terms, and conditions of full time employment previously negotiated by Local 29 in downtown Pittsburgh, and to incorporate into a labor agreement the results of the current negotiations that at that time in December had resulted in picketing of downtown Pittsburgh building sites by Local 29 where Local 29 labor agreement contractees were utilized It is Gundlach's testimony that Pritchard's New York City representative executed a labor agreement there with Local 29 The resulting reinstatement of former employees at higher wages than Gundlach had factored into his bid for 300 Sixth Avenue caused him to conclude the eco nomic unfeasibility of continued performance of the First Union contract He subsequently sought relief from Sirow and asked for a renegotiation of the contract at a higher cost to absorb the increased wage rate and a "no cut" clause required by Local 29, i e , a standard Local 29 clause prohibiting a reduction of employees when building rental space is underutilized On 10 December, he and two associates who did not testify met with Sirow and Chilcotte Sirow "initially" adamantly re fused, stating it was Gundlach's problems and that Pritchard would be held to its contractual undertaking A conversation transpired, the contents of which Gund lach did not reveal in his testimony except that it was es sentially a 'one sided" presentation by Pritchard At the end of the conversation he told Sirow that he would send him a revised pricing sheet with a new billing and Sirow said that would be fine Based on these out of context words of Sirow, Gundlach assumed that First Union had agreed to absorb increased costs Ultimately, First Union did not agree When Sirow received the new additional billing, he responded by demanding that Gundlach explain what it was, and then disputed that any such agreement was made, and that billing set forth a new pricing sheet for a total annual billing of $231,006 On 17 January, a meeting was held between representa tives of both companies, at which Sirow refused the as sumption of added work and insisted on contractual per formance Sirow again objected to the proposed "no cut" clause, which would prevent a reduction of labor in accordance with decreased square footage that needed cleaning Gundlach protested that he would be forced to terminate the contract By letter dated 20 January, Gundlach confirmed the contract cancellation effective 15 February By letter dated 22 January, Sirow acknowledged the cancellation and accepted it as effective 19 February By letter dated 31 January, Gundlach unsuccessfully submitted to Sirow 1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD revised cost and pricing based on a reduction of one night cleaner position and elimination of the day porter position, leaving a balance of seven full time nonsupervi sory employees The letter explained, however, that re tention of the current staff level would result in a total ceiling price in excess of $224,000 Pritchard's last date of performance was between 15 and 19 February CPS, like Pritchard, had previously successfully bid on other First Union jobsites in Cleveland Cassese of CPS testified to the following encounter with Sirow on or about 22 December 1985 in Cleveland where they met to discuss their contract for services at two downtown Cleveland buildings Cassese s associate, Biddle, was also present but did not testify Sirow was alone According to Cassese s generalized testimony near the end of the meeting something was said to lead Cassese to conclude that `Pritchard apparently had some problems with the Union, which led to the cancellation of its contract Sirow asked whether Cassese was interested in rebid ding As to a reference to union representation, Cassese testified in the disjointed fashion endemic to his entire testimony Well, in the conversation of how rebidding would take place you know we talked about, could it be done non union since-and I think I expressed some of my own feelings about it, that there was a possi bility because [Local] 29 we had lost the contract and [Local] 29 to our understanding no longer rep resented the employees because I think, we both felt that the only way we could meet the economics in the property was to be in a non union situation And, we expressed some interest, at that point in time, however we didn t respond, at that meeting as if we could or would be able to do it [Sirow] did express the fact that he was going back to see quotes, and he had several companies, some of which were non union some-one two possi bly said that they could either be union or non union, giving him some choice So it seemed to me that he had several alternatives in the bidding proc ess Cassese testified further that Sirow did not explicitly name any particular union but asked him whether he was interested in submitting a price either union or non union, he wanted a price Sirow told Cassese that he could bid the job union or non union but that the basis for awarding the bid as discussed was economics In disjointed sentence structure, Cassese testified that ref erence to CCM somehow emerged and Sirow asked if Cassese was willing to bid through that entity There was an "expression by someone to the effect that Pritchard s rehiring of former employees rendered his position to be economically untenable but that Sirow stated that bids were being solicited from non union companies and companies who said that they could either be non union or union depending on what First Union may have wanted In more specific terms Cas sese testified that Sirow stated I in soliciting non union companies Some of those comapnies can deliver a union can you? Cassese responded that he could not give an immediate answer because the complexity of the situation required legal advice and, moreover, at that time the contract re newal negotiations with Local 29 had not been resolved and Local 29 was picketing other locations in Pittsburgh which were serviced by CPS Within a couple of weeks Cassese communicated to Sirow his decision to decline the bid solicitation, because CPS did not feel it was worthwhile to do so under the circumstances, that CPS was not interested in submitting a nonunion bid that the Local 29 negotiations were still in flux, and that coming in with another union was not the answer and there were questions whether [Local] 29 really had jurisdiction to that building The thrust of this testimony appears to be that Sirow wanted a low cost contract, that Pritchard could not do it because it hired the former employees, recognized Local 29, and agreed to collective bargaining contract terms that made it impossible to perform its contract to service 300 Sixth Avenue Further Sirow was soliciting bids from a variety of companies union, i e, Local 29, nonunion and those that recognized a different union and questioned Cassese as to his abilities in this regard Sirow suggested that Cassese could submit a bid under any of those alternative operational formats but that Sirow s objective was price, that is, a price substantially lower than that quoted by contractors who factored in a labor cost based on the prevailing standard contractual Local 29, downtown Pittsburgh wage rates I conclude that according to Cassese s testimony, Sirow by statement and implication, informed Cassese that he would award the contract to the bidder who gave him his desired price, and how that price level bid was effectuated and was left to the judgment of the bidder be it one who was non Local 29 one that affili ated with another union, or one that recognized Local 29 Implicit in the Local 29 recognition alternative is that the contractor would despite its recognition of Local 29 be able and willing to successfully negotiate a wage rate level comparable of performance with the accepted bid There was no explicit suggestion that the successful bidder must necessarily refuse to hire the predecessor employees However Cassese was left with the subjec tive impression that they both felt that the most eco nomically viable alternative was nonunion, i e non Local 29 after Sirow told him that other non Local 29 (either nonunion or other union) contractors would be willing to bid, and inquired about his ability and willing ness to bid as a non Local 29 entity Sirow testified to the following sequence of events which led to the acceptance of Systems as Pritchard s re placement Implicit, however was the understanding that the successor contractor set initial wage rates which made a cheaper contract feasible When Pritchard had been initially selected, it had been based on Sirow s judg ment as to which of a group of bidders would provide capable service at the most reasonable cost Although there were lower bidders, they were not well qualified Sirow denied that he ever expressed an interest in re ceiving a nonunion bid from Gundlach He denied that he had ever agreed to absorb the added costs resulting SYSTEMS MANAGEMENT 1081 from the recognition of Local 29 He denied that subse quent to Pritchard s recognition of Local 29 he asked Cassese to bid either union or non union ' Except for the January meeting with Gundlach he failed to accom pany his denials of nonunion solicitations with his ver sions of the context of the conversations in which Gund lach and Cassese testified that they occurred He did not deny their testimony about having had conversations rel ative to the rebidding process and the nature of the bid ders, and the alternative prospects of how it would be feasible to achieve a bid that factored a wage cost lower than that possible with adherence to the citywide Local 29 wage rates Despite the generalized and disjointed nature of Cassese s testimony and conclusionary nature of Gundlach s testimony , I find that I must credit them where their testimony is not contradicted by Sirow I found it unnecessary to decide whether Sirow agreed to absorb Pritchard's added costs However, I also credit their testimony that Sirow did indicate some interest in a nonunion bid and discredit Sirow s monosyllabic dem als solicited by his counsel Although Systems argues that they be discredited as biased competitors of Sys tems, they are not competitors of First Union but rather, if anything, it would appear to be contrary to their inter est to testify adversely to First Union with whom they have done business and might need to do so again How ever, I attach little probative value to Gundlach s testa mony because the suggestions were without context With respect to Cassese s testimony, as noted above it does not clearly reveal that Sirow instructed , ordered, or asked Pritchard to submit only a nonunion bid if he ex pected it to be approved Becky denied that he told Gundlach that it was First Union's desire to have a nonunion contractor at 300 Sixth Avenue and that he had recommended such for several years I must credit Becky Gundlach s testimony was generalized and given without context The credible evidence is that Becky had not been employed by First Union for several years at the point of time when the alleged statement was made and had been appointed property manager in February 1984 It is therefore un likely he would have made such statement Thus the ac curacy of Gundlach s recollection of Becky s comments, if any regarding the desirability of nonunion contractors at 300 Sixth Avenue is sufficiently suspect to undermine reliance on it Sirow testified that immediately after he received Pritchard s notification of termination he instructed Becky to contact and commence solicitations for con tract bids with anyone in the market place ' Becky rec ommended a contract with Systems based on the previ ous submission of bids Of that submission , only two less qualified or inexperienced contractors were lower in cost than Pritchard Systems prior bid, however, was com petitive Sirow agreed His letter to Gundlach of 22 Jan uary acknowledged receipt of Gundlach s cancellation notice on 20 January Systems executive vice president, William Noble who participated in all discussions with First Union testified that subsequent to November there had been no contact with First Union until Becky en gaged in a telephone conversation on 28 January 1986 in which Becky advised that Sirow be contacted Becky testified that he would have immediately communicated this message to Joseph Cicero, the president and chief executive officer of Systems, but for the fact that Cicero was absent and out of the city on 28 and 29 January Becky thus had to wait until 30 January when Cicero then became involved in negotiations with Sirow From the testimony , it appears that Sirow did not immediate ly" commence contact with Systems From the testimo ny of Cassese, the credibility of which is thus enhanced, Sirow had opportunity to and did solicit Cassese s re newed interest as described above, and no contract was made with Systems until the eighth day of receipt of Pritchard's cancellation notice In direct examination Sirow s testimony glossed over the precontract negotiations with Systems and he merely testified that he awarded Systems the contract based on the qualifications of the contractor and a competitive rate He answered in a simple negative response to First Union counsels questions about whether he or anyone from First Union directed Systems to hire or not to hire certain employees and whether First Union has any policy against utilizing union contractors, but as to the latter he cited examples of First Union con tracts with union construction contractors In cross ex amination, Sirow could not recall whether he first con tacted Systems after he was informed of Pritchard s can cellation and he testified that because he was aware of the probabilities of nonperformance by Pritchard, he may have contacted Systems earlier , but most likely not before his 10 January meeting with Gundlach Noble was certain that it was on 28 January and referenced it to Cicero s absence from the city Sirow also could not recall how many telephone conversations he may have had with Noble or Cicero before actually meeting with them which he believed occurred in early February Noble testified that pursuant to a telephone conversa tion on 30 January, a meeting was arranged which took place on 3 February at Sirow s Cleveland office between Sirow, Cicero, and himself at which they introduced themselves and at which respective business structure and operations were described Noble testified that before a contract was signed he met again with Sirow in Cleveland primarily to satisfy some concerns raised by Sirow relative to what kind of vacancy credit Sys tems would offer Three such meetings were held in cluding the dates of 7 and 11 February Noble testified that the first meeting had been exploratory and Sirow had not given an indication of commitment but that after having received several telephonic inquiries about Sys tems insurance coverage, etc, he became optimistic of obtaining a commitment He testified that at the first meeting we had discussions on Local-on the union, and we brought up that we had contracts , both of a non union nature and we also were working at that time, or had contracts with Local 327 He testified that either Cicero or Noble informed Sirow that there could be an interest on Local 327's behalf in that building According to Noble , Sirow neither said that that s good or that's bad because , as he phrased 1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD it, we couldn't offer anything definitive as to would they take it, or [interruption by counsel with an other question at this point of answer] " In cross exami nation, Noble testified that it was Sirow who introduced the subject of Systems' maintenance of contracts with labor organizations, to which Noble responded that Sys tems maintained 90 to 100 contracts, most of which are nonunion but that it does have contracts with Local 327 at some locations Noble testified that between 3 and 7 February, he had contacted Local 327 and advised them of the potential acquisition of a new worksite He did so because he understood that the Local 327 contract obliged him to do so He testified that on 7 February he told Sirow that Local 327 had a definite interest in repre senting 300 Sixth Avenue employees Cicero testified he was aware of representation of the 300 Sixth Avenue em ployees under CPS and Pritchard by Local 29 at the 3 February meeting as a result of his questions to First Union representatives Sirow acknowledged in cross examination that the sub ject of unions ' did apse during these negotiations but he could not recall when He admitted that he became aware that Systems maintained collective bargaining agreements with Local 327, inclusive of sites at a major department store chain, Kaufmann s, but he had no recollection about whether it came before that meeting, at that meeting, or other meetings and telephone conver sations He acknowledged that Systems did state that fact and the extent of it but that he did not explore it ' be cause of a lack of concern "about their particular agree ments and Systems relations with other unions, despite Noble s testimony that Sirow raised the subject He in sisted that he was concerned only whether Systems was qualified and would submit a competitive price He in sisted on First Union s indifference to Systems union re lationships and what union might represent the cleaning employees at 300 Sixth Avenue despite his recent expert ence with Pritchard and despite his admitted awareness that a contractors collective bargaining disputes would entail the unwanted prospect of picketing and that Local 29 was then currently embroiled in picketing a number of downtown Pittsburgh buildings in consequence of the ongoing dispute with OBAP, and that nonunion wages were lower than the standard Local 29 wage rates On further persistent cross examination, Sirow admitted that prior to contract execution, Systems representatives told him in negotiations that Systems would apply a Local 337 contract to 300 Sixth Avenue, and that the wage rates under that contract would be lower than that of Local 29 Thus, in contradiction to Noble's testimony that he said Local 327 would only express an interest in 300 Sixth Avenue Sirow's testimony reveals that Sys tems had predetermined on recognition of Local 337 as bargaining representative , prior even to an execution of a contract with First Union Sirow testified that during these negotiations it was his understanding of the state of the law that a contractor who had replaced Pritchard and hired all of Pntchard's employees would have been obliged to recognize and bargain with Local 29 He in sisted that the identity of the employee bargaining agent was a matter of indifference , but rather to him econom ics was the `bottom line In effect Sirow s objective was to obtain a successor contractor that would be able to perform at lower cost made feasible by lower wage costs Noble testified that during these meetings and conver sations there were no explicit discussions about how Sys tems intended to staff the building, and that Sirow had placed no restriction on staffing In view of Sirow's testi mony regarding the predermination of Local 327 recog nition and contract application, and his understanding of the impact of predecessor employee retention, Sirow had no motivation to dictate a new staff if that predetermina tion had been proffered without First Union's request, demand, or solicitation Noble testified that the first indication of contractual commitment from Systems came by way of a telephone message from Systems on 13 February which led to Noble's visit to Sirow on the same date On 13 February in Cleveland, Noble signed a contract prepared by Sirow which called for start of work on 16 February at 300 Sixth avenue The General Counsel argues that it is reasonable that Sirow made the same requests and requirements" and `demands of Systems as it had done of Pritchard and CPS However, the General Counsel also argues that be cause of Systems historical sweetheart arrangement with Local 327, it was already the perfect match' for First Union because it improved on the aborted Pritch and scheme to operate nonunion by virtue of the pre recognition of Local 327 The later argument undermines the argued inference that Sirow made any requests or de mands of Systems' hiring or recognitional intentions as it had no need to, i e, the discovery of the perfect match Thus, under this theory, the causation of the layoff of former Pritchard employees was not a demand or request of First Union on Systems but rather the ulti mate consequence of First Union s engaging a contractor which, as a matter of practice delivers another union with a cheaper labor agreement Noble agreed that since 1978 Systems maintained a good past relationship with Local 327 and that he had made Sirow aware of it There had never been any pick eting of Systems by Local 327 The Local 327 contracts provided for substantially lower wage rates than those of Local 29 Except for one different local union of the same International Union Systems maintains contractual relations with no other union About 20 percent of Sys tems employees are covered by contracts with Local 327 Systems practice under its interpretation of its col lective bargaining agreement was to notify Local 327 each time it obtained a new cleaning contract and when it was about to commence operations Noble testified that on such notice Local 327 would at its option decide whether to express interest and to seek representation of employees there and on behalf of Systems it was Cic ero s decision to grant recognition Contrary to the Gen eral Counsels assertion Nobles testimony in its full con text did not state that recognition of Local 327 was granted on Local 327 s mere decision to ask for it A de terminant factor for Local 327 to request recognition was the geographical logistics involved in servicing the SYSTEMS MANAGEMENT new location Local 327 headquarters is in Chareroi, Pennsylvania C Staffing at 300 Sixth Avenue Noble s testimony that the industry is highly competi tive is supported by the record, e g , it 'is the custom for contracts to be frequently rebid and to replace contrac tors Noble testified that Systems was excited and eager to obtain the Systems contract as a real opportu nity' for it to enter what for it was a new market, down town Pittsburgh Its contracts previously had covered such areas as retail establishments, schools, and shopping malls As Noble stated 'We are a three million dollar corporation, [with] no business downtown, and here is a high rise that we are looking at ' Accordingly, he ex plained that he did not wish to distract Sirow from sign ing an agreement by raising any questions about staffing Noble testified that it was Systems intention to staff the building with part time employees, i e, 4 to 6 hours per shift per employee , and that the basis of its cost formula tion, inclusive of labor cost charges was premised on that intention He testified on direct examination about Systems past use of part time employees Q Is that common in your company? A Yes, very Q Could you tell us how common it is and why you do this? A Well, maybe, to put in perspective then, out of possibly ninety to a hundred total contracts that we had at the time [500 employees] I don't think any of those contracts have full time people No other testimony or documentary evidence was proffered to corroborate this testimony of the extent of past pratice, which, however, was not challenged by the General Counsel Noble s more detailed uncontradicted, and credible testimonial explanation as to the greater effi ciency and productivity and less expense of part time employees was corroborated, as we have seen, by Gener al Counsel witness Gundlach Noble testified that Sys tems does employ four or five full time employees who do special service work as a strip crew who service hard surface floors twice annually from location to location because there is a lack of in house expertise at each site The General Counsel erroneously cites this testimo ny as evidence of a lack of past practice The scheduling of a specialized floating crew of 5 floor finishers is pa tently distinguishable from that of 495 permanently as signed on site cleaning and janitorial employees Again, without contradiction, Noble testified that the type of person hired for custodial work is, unlike the career minded employee, a person interested in a supplemental or temporary work, i e, college students and housewives who are generally younger and more vigorously produc tive The contract wage rates previously negotiated with Local 327 were substantially lower than that negotiated in the downtown Pittsburgh area with Local 29 The lower wage costs incorporated into Pritchard s contract with First Union accompanied the employment of non 1083 union employees, a significant number of whom were contractually specified as part timers Systems' contract with first Union contained an annualized cost analysis which set forth full occupancy wage cost changes pre mised on 17 part time night cleaners, 1 part time night supervisor, 1 full time day porter, and 1 full time eleva tor operator Total annual costs, exclusive of monthly service fees, were $153,461 By virtue of this contractual item, some sort of staffing discussion is extremely likely to have occurred between the two companies during ne gotiations, despite Noble's testimony that there was "not really" a staffing discussion Noble testified that it had been Systems' intent to overstaff the building with 25-30 employees on com mencement of its operations in order to make an immedi ate impression on First Union , and because earlier in September he had found unkempt conditions in the public areas Sirow conceded that at least this much re garding staffing was proffered by Systems in negotiation Noble testified that by 16 February, Systems had gath ered 26 employees of whom 15 were currently experi enced Systems employees from other Systems locations including some from its Kaufmann s Department Stores account locations near the city Some who were geo graphically close, were offered the option of transferring permanently to the downtown high rise for part time em ployment The full time strip crew finished its work within 12 hours Of the approximately 25 part time em ployees utilized on 16 February, 10 were newly hired Despite Noble s testimony that Systems gave no con tractual commitment until 13 February, and that Systems was merely optimistic up to then, it is clear that by its conduct Systems felt quite assured well before then that it would be cleaning the building as of 16 February William Hudson regional manager responsible to Noble at the time, testified as a witness for the General Counsel Respondent Systems, in argument claimed him to be currently the employee of a competitor and in its brief included him in a grouping of General Counsel wit nesses, which it termed as disgruntled ex System em ployees ' Nothing in his demeanor or in the record sup ports the suggestion that Hudson is or has reason to be biased against his former employer He was not im peached, nor was there a serious effort to do so I found him to be convincing dispassionate objective and credi ble Indeed Systems elicited testimony from him in cross examination in support of its own position I fully credit his testimony According to Hudson, the following events led to the hiring of 10 new part time employees for 300 Sixth Avenue At the time it was Hudson's duty to train the Company s district managers and to see that policy was followed He also initiated the operations of new ac counts He was responsible for 45 accounts and had been involved in hiring for 20 locations The building supervi sors reported to the district managers who reported to him He in turn reported to the operations vice president, Dale Palmer, who was directly subordinate to Noble Hudson hired new employees who commenced work at 300 Sixth Avenue on 16 February He interviewed and hired them approximately within 2 weeks before that 1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD date, after having followed his universal practice of ad vertising in a suburban advertising journal called the Pennysaver in early February That publication was distributed free to all homes in the metropolitan area and was admittedly received and read by some of the former Pritchard employees The ad itself did not reveal the lo cation nor the identity of the employer but solicited part time employees at a specified wage rate of $3 75 per hour for work at an office building The ad also specified that experience was desired and directed the reader to the telephone number of the state operated North Side Job Service, at which applicants were processed pursu ant to past practice Hudson and an associate interviewed 100 applicants at the state agency sometime in the 2 week period prior to 16 February most probably between 3 and 7 February It is not clear when 10 of those employees were notified that they were hired and told to report to 300 Sixth Avenue, nor when the decision to hire was actually made Respondent witness, the current Systems down town Pittsburgh district manager, Betty Boggs testified that she had been interviewed at the North Side office by Hudson at least one week prior to the hiring and was notified of hiring at least 2 days prior to 16 Febru ary The witnesses for the General Counsel, Shelly Harvey and Lisa Mobley, were hired prior to and re ported for work on 16 February, but they were silent as to the interview and hiring circumstances Hudson testified that based on his interviews he was satisfied about the qualifications of those he hired as A Number One people' After Hudson was questioned by the General Counsel about the interviewing and hiring of the prospective employees he testified that he re viewed their past records and work history and then asked if they had belonged to any union When asked whether he had done so on specific instruction he testi feed Well, when interviewing I found a lot of people not being familiar with a union And I ask a ques tion and proceed to tell them about union coming in with a union and just explain everything to them I explained to them that they would be associated with Local 327 And that was basically it On cross examination Hudson testified that at the same period of time in February, he interviewed and hired some of those 100 applicants for positions with some of his other accountants which needed an unspeci feed number of employees, including the Rochester Shop N Save and the 5 Kaufmann's Department Stores at which Systems employed 50 cleaning persons, and at which the employees were covered by a union security clause in a Local 327 contract He did not explain whether those were the same locations from which Noble testified that experienced employees were tempo ranly transferred Respondent Systems argues that Hud son s testimony regarding his union reference to at least some of the applicants must be understood in the con text of his interviewing employees some of whom he in tended to place at Kaufmann's location where there was a valid union security clause Respondent Systems argu ment however ignores subsequent testimony of Hudson which in response to a direct question, explicitly direct ed to the interviews of the prospective employees for the Sixth Avenue building about whether a union con tract was referred to he testified I told them that they would belong to the Local 327 He testified that he made no mention to them of a union contract Thus the context of his testimony supports the General Counsel's argument that Hudson told each of the Sixth Avenue ap plicants, necessarily inclusive of the 10 hired that they would belong to and become members of Local 327, which in that context meant that they were told that such membership was a necessary consequence of em ployment and thus a condition of employment Although the General Counsels witnesses were silent about their own interviews I credit Hudson rather than Boggs who testified that Hudson made no reference to union affili ation during the interview His demeanor was more con vincing and he had less interest in the proceeding than did Boggs, the district manager Admittedly, no direct solicitation for employment nor notice of employment opportunity was tendered by Re spondent to any of the full time career employees al ready employed at the site by Pritchard and most of whom had been employed by its predecessors for 15 years None of these employees responded to the blind Pennysaver advertisement and, indeed Hudson testified that of 100 applicants interviewed, only Boggs indicated prior membership in Local 29 in her distant past Nor were the Pritchard employees given more than 2 days notice of the lack of need for their services Of the 20 places where Hudson had hired employees for new ac counts, he testified that he used the same type of blind advertisement in the Pennysaver with nondisclosure of work location and processing through the state job re source agency He did not testify that he always used a blind advertisement exclusively Also, of those 20 loca tions he testified that there were 3 accounts he recalled, where predecessor employees were interviewed and where he had notified them of interviewing He identi feed those locations where predecessor employees were hired on interview as the five Kaufmann s stores from April to July 1985, and the Meadow Race Track in 1981 or 1982 He testified that he interviewed the predecessor employees at the Sears department store at the South Hills Village, but hired only two of those for another ac count He was silent about the circumstances of such interviewing He failed to testify that he notified those employees and solicited their applications directly, or whether they applied to Systems pursuant to the instiga tion of the predecessor employer, a union, or even the blind advertisement He refused to answer affirmatively the General Counsels questions about whether it was Systems common or general practice to interview predecessor employees He explained that Well some occasions I would interview the employees and some oc casions, I wouldn t When asked by counsel for the General Counsel what objective advantage there was in hiring predecessor employees he answered that the best advantage was the knowledge of the location or build SYSTEMS MANAGEMENT 1085 ing, if' they were good employees He did not testify, as is suggested by the General Counsel , that this particu lar objective advantage was the predominant or indeed a factor at all in his past decision whether predecessor employees would be hired or even interviewed at those 3 accounts of 20 locations where he did so He did not tes tify at all about what the determining factor was in those accounts, nor did he testify or explain why he followed what clearly was his predominant hinng practice regard ing the 300 Sixth Avenue hiring despite the objective advantage of retaining good employees who are famil tar with the building which was the site of an exciting and important access into a new market , for which Sys tems planned to make a favorable first impression on First Union However, Hudson was also not called on to explain why he did not notify and interview predecessor employees in the preponderance of his hinng situations Neither Hudson nor any other witness for any party tes tified, and no other evidence was adduced , about the hiring experiences at those 75 to 80 other Systems ac counts and/or locations where Hudson had not been in volved There is no evidence whether Systems has a uni form hiring procedure, or whether it vanes with the re gional managers For example, Hudson utilized the Pen nysaver' because it was headquartered near his particu lar Pittsburgh residence Hudson neither contradicted, nor corroborated, Noble s testimony regarding the part time hinng practice With respect to union representation of predecessor employees of all those accounts in which he was in volved, Hudson was not sure but he thought that per haps Kaufmann s employees had been previously repre sented by a union At all the other locations, to his knowledge the predecessor employees had been unrepre sented This unrebutted testimony about his own past practice thus reveals that in the minority of cases where predecessor employees were notified and interviewed five of seven locations had been unionized and that in the preponderance of locations where no such interview ing occurred, there had not been a factor of prior union representation Hudson testified that he commenced operations at 300 Sixth Avenue with about 25 employees, apparently ex clusive of the strip crew The 15 Systems employees bor rowed from other Systems accounts also continued to perform their regular jobs at those locations during the morning hours They were expected temporarily to help get the building cleaned up to where we wanted it to be at Although all were given the opportunity to stay downtown, only 1 of those 15 chose to stay on as a dayworker Hudson had expected three to decline by virtue of the distance to their homes from downtown These 15 worked for 1 week and were ` feathered so that Hudson had 6 or 7 of them stay for another week Hudson testified that after about 1 month, the employ ment level was reduced to the approximate expected complement of 10 employees This seeming inconsistency with the First Union contract full-occupancy wage cost analysis, which called for more part time employees, was not explained However, the buildings occupancy per centage was never revealed Nor was it revealed wheth er it had fluctuated D Local 327 Recognition at 300 Sixth Avenue Fred Kachmank is presently an officer of Local 327 From 1982 until June 1985 he had been business manag er His duties as an officer entail responsibility for all the Union s office operation and he is service agent and or ganizer for its industrial division, inclusive of janitorial units In his testimony, Kachmark acknowledged that before the commencement of Systems operations at 300 Sixth Avenue on 16 February he had received a tele phone call from Cicero where he was told that Systems had obtained a contract at that site, and that Cicero agreed to Kachmank s requested recognition of Local 327 as employee representative Thus, in his testimony, he admitted having demanded and having received from Cicero bargaining recognition of employees before they were hired and before he had received any employee designation as bargaining agent Repudiating his pretrial affidavit and his written statement of position submitted to the Regional Director he denied that it occurred in December 1985, and that he and Cicero negotiated a labor agreement for that site on 3 January 1986, the very date of execution as it appears in that document He also repudiated his prior sworn affidavit testimony and post tion statement to the effect that a majority of the em ployees hired for the job were already " members of Local 327 and had agreed to work under the terms of the Local 327 national agreement with Systems At the trial Kachmank first testified that he could not recall the date of Cicero s telephone call, but then testified that it was a day before 16 February when he first discovered that there would be a Systems account at 300 Sixth Avenue He explained with complete lack of conviction, that he first became aware of the error of his affidavit about 6 days before the trial and, that when given in August 1986, he had not been thinking much about this case, and had merely observed the 3 January execution date in the contract and assumed the date to be correct He admitted that he did actually write the contract exe cution date as 3 January 1986 and intentionally entered an incorrect date He testified that he did so on the advice of his superior who gave him no explanation for such conduct which he admitted was unusual The con tract negotiated with and signed by Cicero refers to an annual expiration date of 15 February , and an addendum with 16 February as an operative date Cicero and Kach mank testified that they negotiated the contract at Sys tems main office in Newcastle on 21 February Cicero testified that the negotiation of and agreement on a con tract occurred on the same date that recognition was granted to Local 327, Friday 21 February 1986 He tes tified Mr Kachmank informed me that he had all of the members of-all of our crew working at 300 Sixth Avenue that wanted to belong to the Union, and I had no reason of doubting him So , I recognized him Kachmank not only failed to corroborate this version of the recognition demand, but the context of his testimony is inconsistent with it Cicero testified that his secretary 1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD typed the agreement and it was mailed to Kachmank be tween 21 February and 20 March and that it was re turned to him signed by Kachmank and dated 3 January 1986, and that he also dated his signature 3 January He testified I had no reason to put any other date on it We had-it wasn't unusual to put a different date, sign ing date on a contract than [that which] was the actual date it was signed He did not testify that it was usual for him to designate execution dates of pure whimsey and for no relevant purpose His demeanor was somewhat above the patent chagrin of the embarassed Kachmarik, but it was as un convincing His proffered explanation in effect was a nonexplanation Kachmank's only testimony, at the trial or in his affi davit with respect to employee designation of Local 327 as bargaining agent, was that he had received a list of employees' names from Systems a "few days' after 16 February and that he met with Systems' employees on 20 March at a nearby location and obtained seven em ployee executed representation designated membership applications and dues deduction authorizations He con ceded that there were one or two others, maybe three others, there were a few others who had just begun and who had not been there for thirty days' He admitted to be accurate the following affidavit testimony when I signed up the employees I explained to them the contract with Systems including that it is a con dition of employment that they become members of the union His visit to the employees was made apparently in pursu ance to the union security clause of the contract Kach mank however, engaged in similar organizational con duct during a 16 February orientation program con ducted for the new employees Systems had arranged for the newly hired employees to be addressed by Noble Palmer and other Systems representatives After they spoke Kachmank there by invitation, was introduced by Hudson to the employees as the business manager at Local 327 who was present to talk to them and that he would be going over all the specifics with them Kach mank addressed the employees in the absence of the managers He admits that he told the employees on that occasion that they must join Local 327 in order to be employed at that place' Kachmank was silent about what else he stated to the employees at the orientation meeting General Counsel s witness Lisa Mobley testified to Kachmarik's remarks in the following order he stated it was mandatory to belong to Local 327 he explained the Union the union dues and fees, and he explained a little bit about being in [it] to us General Counsels witness Shelley Harvey, who was present with Mobley and the other new em ployees, at first recalled only that Kachmank explained a little bit to us about the Union how wed represent the-as a union, and we discussed the union dues' On exhaustion of her recollection, she responded affirmative ly to the question whether anything was said about it being mandatory to join the Union,' by corroborating Mobley Respondents Pittsburgh district manager, Betty Boggs, was one of the 10 newly hired employees She answered negatively to the question whether she had heard "anybody say you had to be a member of Local 327 to work at the First Union Building ' She testified that she was designated as union steward by fellow em ployees 'as soon as the orientation was over ' She ex plained that the new employees present at that meeting remained in the room and were allowed to discuss "what we wanted to do' and that Kachmank had left and re turned for their decision It was then that she testified that the employees decided that they did want the Union ' After only several days or a week as a stew ard, she was promoted to supervisor On cross examina tion, she elaborated that Kachmank was introduced and, after Hudson left, explained himself and what he wanted to do and his objective for the employees, and that as he waited outside by some indefinite mode of common con sensus, they all agreed, yes we wanted [Local 327 rep resentation] " She recalled at least nine new employees, of whom were included 'a few of the girls that didn t stay very long,' and of whom she could only recall the names of Sharon and Debbie She named the others Lisa Mobley, Shelley Harvey, Patricia Thomas, Robert Mercer, and Catherine Kunesky She identified her em ployment application but explained that the date she had entered 19 February, was in error She identified her W 4 form which also was dated 19 February She had no explanation for the dates that she assumed were incor rect, as she testified because I started on the 16th and unless I was unaware of the [correct] date [when signed] " She admitted that she had filled out the W 4 form except that she denied the written entry of a dollar symbol and union dues' in item 2 which provided for additional deductions The writing despite her testimo ny, is almost identical to that on the employment apple cation which she had grudgingly conceded was indeed her handwriting Bogg s testimony was evasive hesitant and marked by a singular lack of spontaneity and conviction I found her not credible I conclude that on 16 February she was under the impression that dues were to be immediately deductible and paid to Local 327 I find more pertinent Kachmank s own admissions against interest as corrobo rated by General Counsel witnesses, that he told the new employees that Local 327 was an immediate condition of employment Despite General Counsel witnesses failure to explicitly testify that no form of voting took place, I reject the vague, unconvincing testimony of Boggs that some form of option was provided and exercised by the employees As Kachmarik testified, the reason that he made such a statement to the employees was his then belief based on his superiors instructions to him, which he solicited because of an ignorance due to inexperience of how to go about organizing the 300 Sixth Avenue He testified that the general representative of the Inter national Painters Union told him that the then already existing national" contract between Local 327 and Sys tems included in article II section 2, a union security SYSTEMS MANAGEMENT clause which entitled him, "to visit the site where there's a new contract by the employer and tell the people that they must join the union in order to be employed at that place" When asked whether he then did so at the 16 February orientation meeting, he answered, I did so " Thus it is clear why and how Kachmank proceeded to tell new employees, who had already been told in es sence as much in their interviews with Hudson, that they were constrained to join Local 327 as a condition of em ployment Based on his admission , he had no understand ing and no interest of trying to organize those new em ployees by advising them that they had any options He proceeded to talk to them based on the assumption that they were already subject to the national contract, as he had stated in his repudiated affidavit, much of which he inadvertently admitted to be accurate Even if Boggs was credible, which she is not, the order of presentation is clear, i e, Kachmank was presented and identified and he told the employees why he was there without refer ence to any options to them If indeed they did seek to have some consensus about representation per se during his absence, which, had it occurred at all, was to allow them to designate a steward, it necessarily followed the statements of Hudson and Kachmank about the obligato ry nature of Local 327 representation and had not pre ceded Kachmank s statement, as is argued by Respond ent Systems It is unnecessary to find that Systems and Local 327 actually executed a contract on 3 January, 30 January, or some other date prior to 16 February, because it is clear from the testimony of Kachmank, Hudson, and Sirow that Systems had predetermined to, and did, recognize Local 327 as bargaining agent of employees it had not as yet hired and predetermined that it would apply the standard type Local 327 contract to 300 Sixth Avenue, as Systems told Sirow that it would during its solicita tions of this highly desirable work from First Union Cic ero s unconvincing testimony to the contrary is not cred ible The actions and conduct of Hudson and Kachmank are fully consistent with this conclusion and totally at variance with Cicero s disingenuous testimony of indif ference to the identity of the employees designated bar gaining agent, on which he insisted despite an evasively conceded awareness of Local 29 s relentless efforts to maintain a downtown wage rate level that undermined a competitive bid Cicero testified The idea is to be com petitive " The evidence demonstrates that not only was Systems indeed concerned about whether Local 29 might be designated as bargaining agent at 300 Sixth Avenue but that it predetermined to recognize another union i e Local 327 with which it had a successful relationship and with which it had been able to negotiate lower wage rates With respect to the possibility that Systems might under certain circumstances have been lawfully obliged to recognize and bargain with Local 29, Cicero after much evasion, testified about his state of mind prior to 16 February As I understood the law at that time, [it] is that, even if I had hired all of those people that previous ly worked for the previous contractor at 300 Sixth Avenue and brought them in with the total crew 1087 that I had working the first day of that contract, that I would not have a legal obligation to negotiate with Local 29 since they would not represent a ma jonty It was my understanding that first day of em ployment was key This testimony strongly suggests that Kachmank s recog nition demand of 21 February was premised on employ ee designation made on 16 February He conceded that he was aware that if the predecessor employees had con stituted a majority of Systems' crew that hypothetical ly" a bargaining obligation arose with Local 29 In vig orously objecting to that line of questioning directed to Cicero's motivation in February 1986, Systems counsel stated its position that even if they all applied, there is no way they could have been a majority of the work force in that building because it was staffed on a part time basis [i e, a higher number of employees] However, Boggs' testimony indicated that only nine new employees attended the meeting at which she claimed Local 327 was designated bargaining agent, of whom two soon departed According to her, the reas signed employees were not present Furthermore, Hud son's credible testimony indicated that it was never the intent to retain all those extra transferred employees, but that there was an expectation that only some of them might exercise an option to transfer downtown perma nently after the initial period of flux Accordingly, I dis credit Cicero's improbable testimony that Kachmarik claimed to have been designated bargaining agent by all 20 or 25 employees at 300 Sixth Avenue on what Cicero believed to be that critical first day of operation Neither before nor immediately after 16 February did any of the predecessor employees nor did Local 327 make any employment requests or bargain demands on Systems In a letter from Cicero to Systems attorney dated 20 March forwarding a copy of the Local 327 labor agreement, he stated Here is the Union Contract you requested that is in force at the 300 Sixth Avenue Building It took some time to let the Union review it since we did the typing It has been over a month now that we have been cleaning that building with employees who are rep resented by the Painters and Allied Trades Union Local 327 We have yet to hear a 'peep' from Local 29 and I think it is because they have so many problems that are solvable that they can t waste time on a no win situation Your help and counsel are partially responsible for our enviable position and we thank you for being in our corner The meaning of the language in that letter is clear Cicero revealed that Systems had not wanted to recog nize and bargain with Local 29 and that Local 29 s ap parent quiescence invoked congratulatory satisfaction from Cicero Any other meaning is insupportable Cic ero s testimonial proffered explanation that the envia 1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ble ' position did not refer to the subject matter of the letter, as the context certainly discloses but that it refers to Systems' obtaining of the First Union contract is as patently mendacious as was his unconvincing demeanor Cicero s testimonial indifference to bargaining agent identity is revealed as a cynical prevarication Further more, it can be inferred from that letter that Systems not only wanted to avoid Local 29 recognition, but that it did something affirmative to bring about that enviable state of affairs Finally, the language in that letter en hances the conclusion that recognition of Local 327 was tendered more than a month prior to 29 March None of the eight predecessor employees had thereaf ter directly requested employment by Systems at 300 Sixth Avenue They were not notified of their nonreten tion until the time when Systems' assumption of it was imminent They were then told by Becky that Systems intended to utilize its own employees Local 29 picketed 300 Sixth Avenue commencing on 31 March, which led to the filing on 2 April 1986 of an unfair labor practice charge in Case 6-CC-1664 against Local 29 by First Union which alleged violation of Section 8(b)(4)(i) and (iii)(B) of the Act On 3 April, Local 29 filed in Case 6- CA-19012 an unfair labor practice charge against First Union which alleged that First Union, as a joint employ er with Systems, terminated the predecessor employees at 300 Sixth Avenue in violation of the Act Case 6-CC- 1664 was settled by an informal Board settlement ap proved by the Regional Director on 5 May 1986 On 16 May 1986, the Regional Director approved the with drawal of Case 6-CA-19012 On 10 July 1986, an unfair labor practice charge was filed by Local 29 in Case 6- CA-19231 against Systems On 11 August 1986 an unfair labor practice charge in Case 6-CA-19407 was filed against First Union which alleged that First Union had terminated employees of 300 Sixth Avenue unlawfully on 14 February 1986 That charge was amended on 2 March 1987 to allege that on or about 15 December 1985 First Union directed Systems to refuse to employ the predecessor employees at 300 Sixth Avenue in viola tion of the Act From 16 February 1986 until May 1987 at 300 Sixth Avenue about 100 different persons were utilized by Systems at one time or another as part time custodial em ployees including 31 persons in 1987 As of about April 1987, there were in excess of 20 regular part time em ployees utilized who each worked anywhere from 15 to 35 hours in a pay period However, 16 March to 16 April 1986 only 12 regular cleaning persons plus Super visor Boggs were employed during all or part of that period according to the record evidence Of those 12 employees 1 commenced work on 6 April, 1 ceased on 3 April, and 1 ceased on 31 April Additionally, for part of that same period two employees from Kaufmann s Ross Park store continued to be utilized, one from 16 Febru ary through 23 March and one from 17 February through 6 April From 16 April to 16 May, 16 regular part time employees, including Boggs, were utilized, of whom 1 started on 13 April and ceased on 29 April 4 started at the middle or end of May and 1 ceased 13 May E Events Leading to the Porter Building Staffing The Porter Building is in downtown Pittsburgh about two blocks away from the 300 Sixth Avenue building Alfred L Black, a Systems witness is the building man ager of that building and also of the Allegheny Forbes Building and the Park Fifth Avenue Building in down town Pittsburgh He performs his services on behalf of the owner, Lehman Company He testified to the follow ing events By letter dated 27 December 1985, Lehman notified National Cleaning Co of the termination of con tracts for cleaning services at the Porter Building as of 30 January 1986 That letter complained of unsatisfactory performance Lehman, however, agreed to continue Na tional s service in response to a promise of improved services However, Lehman purportedly remained dissat isfied with the poor quality of service and a second can cellation notice was issued on 23 July 1986, effective 1 September 1986 Black conceded, however that there also had been a payment dispute with National over va cancy credits He conceded that the reason he ultimately canceled the National contact was 'economic In the meantime, Lehman had already obtained bids from other contractors in March 1986 and thereafter, one of which was submitted by Systems which was considerably lower in cost than the National contract, i e , 9 cents vs 6 cents per square foot, or annual savings of $60,000 Black testa feed that he was concerned only with the final cost bid and not how it was based, i e , labor cost savings by use of part time employees, or from other cost savings However he ultimately conceded that bids were based on what contractors were obliged to pay their own em ployees He denied any knowledge of the identity of Sys tems employees bargaining agent, but conceded that during negotiation with Noble and Cicero he was aware that Systems did maintain a labor contract with a union Noble conceded that during the meeting with Lehman and Black he had become aware that the National em ployees were represented by Local 29 Black was first contacted by Systems salesperson Grossman in February or March and had two subsequent meetings with Noble and Cicero He denied that any understanding had been reached regarding Systems employees union repre sentation Black testified that he was unaware of a Local 29 practice of insisting on full time employment, and that it was not until 25 July when a contract was drawn up that he was aware of Systems intent to use part time em ployees He testified without contradiction that National had cleaned the Allegheny Forbes Building at a consid erably lower cost than the Porter Building, despite the fact that the Allegheny Forbes Building was larger and that seven or eight part time cleaners were used who were also represented by Local 29 At the Porter Build ing National employed six full time cleaners who were represented by Local 29 Noble testified that he had first become aware that Local 29 had represented the Porter Building cleaners when that fact surfaced in contract negotiation meetings with Grossman Cicero Lehman and Black in early May when Lehman or another of Lehman s representatives mentioned it By cover letter dated 27 May 1986 signed by Systems vice president and salesperson Grossman Systems for SYSTEMS MANAGEMENT 1089 warded to John Hoy Lehman s director of real estate, a package of resumes, references, and a descriptive state ment of operations in addition to its proposed bid A his tory and detailed description of Systems history, poli ties, and operations is contained therein The training of custodial employees is described in extreme detail In subsection A, entitled Housekeeping Personnel under section I Training, it states in part SMI s [Systems ] employee turnover is a mere one sixth of what it was prior to instituting this training program-Employee morale and attitude have im proved to such an extent that everyone takes pride in the condition of their area and more importantly in themselves This is why we guarantee a stable work force of not only full timers but part timer em ployees as well [Emphasis added ] Under subsection B, Management and Supervisors, the promotion of employee efficiency is described Thereaf ter, in section IV, Work Load Control, staffing proce dures are described Nowhere is there a statement to the effect that Systems hires eventually all part time employ ees because of their greater efficiency, nor that it main tains a staff of predominantly part time employees The bid does not contain an itemized cost allocation analysis The quoted language above reveals that Systems holds itself out as an employer with a low employee turnover and a stable work force of trained, experienced not only full timers ' but also part timers as well The inference to be drawn from that phraseology is that full time em ployees are a substantial, if not major part of Systems cleaning staffs Noble testified that on acquiring the Porter contract, but before commencement of work meetings were held at the Newcastle offices on the subject of the Porter Building staffing Present were Noble Cicero Palmer and Robert Miller The buildings geographical location at that time fell within the jurisdiction of Systems dis trict manager, Robert Miller Systems' vice president in charge of custodial operations, Dale Palmer, was about to leave for North Carolina in connection with a new ac count there It is not clear who succeeded Hudson as re gional manager at that time However Miller testified that he reported directly to Palmer Apparently then Palmer was functioning as Miller s regional manager Miller as district manager was responsible for 11 loca tions and superior to-each of the building supervisors who reported to him, including those at 300 Sixth Avenue the Porter Building, and Ross Park Miller had been hired on 14 July Noble testified that he was con cerned about Miller s lack of experience with Systems and that he wanted reassurance of Miller s capabilities Further Noble wanted to initiate the same philosophy of overstaffing approach to Porter as he had with 300 Sixth Avenue to make a favorable immediate impres sion" on Lehman in order to lure more of its business Noble testified that at one meeting the discussion cen tered on how the building was to be staffed The coin mencement date was delayed from 25 August to the Labor Day weekend for a starting date of Tuesday 1 September Noble testified that they discussed the source from which employees would be drawn From his testa mony Palmer was still present It is not clear why the staffing had not been left to Palmer as Miller s regional manager as it had been with respect to the hiring of new employees at 300 Sixth Avenue with Regional Manager Hudson Noble testified that it was decided to draw on a pool of Systems special service employees who had been laid off from the Ross Park account, as it was good sense, and mitigated unemployment compensation costs and he directed Miller to draw on this source first Fur thermore, Miller was already familiarized with those em ployees Also, it was decided that because Supervisor Betty Boggs had developed a supply of about five or six call ins' at 300 Sixth Avenue, that those also could be utilized Furthermore, he testified that Miller had people that were floating whom he could bring in now and find a home Noble stated at this meeting that he wanted to look, here again, at some Kaufmann people despite the fact that Systems had not been successful in obtaining Kaufmann s employees to transfer perma nently to Sixth Avenue He instructed Miller to seek out Kaufmann's and 300 Sixth Avenue employees as sources of experienced workers for the Porter Building Miller testified as a witness for the General Counsel He was no longer employed by Systems at the time of the trial, having severed relations 31 October 1986 Ac cording to Miller much more was discussed at that meeting with Noble, Cicero, and Palmer He testified that he and Palmer were called on to discuss the plans for the Porter Building operation after which either Cicero or Noble, he could not recall which of them, stated that he wanted Miller to bring in people who had already filled out cards for [Local] 327 and people who [were then] presently employed by Systems Management who had already been active with [Local] 327 He testified that They i e Cicero or Noble, stated without explanation to him that They wanted all 327 employees in the building Miller testified that he was similarly ordered to hire Systems employees who had signed a check off card" at Ross Park, and to trans fer 300 Sixth Avenue employees who were already active members of 327 and to utilize whatever source I had to pull them from maybe Kaufmanns at Mt Leba non He testified that he was told again by either Cicero or Noble that such persons would automatical ly become members of Local 327 Miller testified that he suggested that it was illegal to put 327 employees and automatically assume they were union employees to which Cicero responded he would consult legal coun sel Miller testified that during the meeting either Cicero or Noble ordered him to utilize Lisa Mobley Local 327 steward at 300 Sixth Avenue, as the key to getting the 327 employees into the building, and that her transfer to the Porter Building was a must Elsewhere he testified her characterization was `the key plant Although Miller conceded that he was not told explicitly not to hire the predecessor employees at Porter, the very nature of his direct affirmative orders precluded such an option Miller testified that a day or so later he received a telephone call from Cicero in which Cicero thanked him 1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD told him that he had obtained legal advice, but that inex plicably Cicero was silent on reference to, but did not contravene , the earlier orders Because Cicero was silent about prior instructions, Miller assumed that they re mained outstanding Miller testified that immediately after the meeting he had discussed with the Systems' su pervisor at 300 Sixth Avenue, Betty Boggs, the prospect of transferring a group of employees, which at first was contemplated at seven persons but thereafter was re duced to four He did not testify that he instructed her that a pro Local 327 employment packing scheme had been ordered He testified that the other source he looked to was the Kaufmann's store in Ross Park He ex plained that the Ross Park shopping mall had first opened in July and Systems had been awarded the con tract for the construction residue cleanup prior to public opening, and that on the 13 August 1986 completion, the 25 to 30 cleaning persons hired for the job were laid off but had been placed on a `wait list for the next Sys tems job that came on He conceded that some of those construction cleanup persons had been hired in July, for the short term job, and as early as then were promised a subsequent transfer at the closure of that job He testified that each and every temporary construction cleanup person hired had been promised a subsequent transfer to the next job opening Miller testified with some uncertainty that he had in tended a permanent Porter crew of about 10 persons after the first week or so " Miller testified with respect to the Ross Park construction cleanup crew called Spe cial Services, that there were about ten to fifteen of [those] employees who were given 327 cards to sign, but that he did not then know their identity and that he was given a computer printout sheet which disclosed a list of employee names of Local 327 members He testi feed that he received this document from payroll clerk Mrs Cicero, at the Newcastle office He testified that from that list which contained only names he selected employees Fred Broadnax Leroy Taylor Randy Hig gins, David Jordan Kevin Trowery and Marshall West He testified that he obtained the printout of names of employees by visiting the Newcastle office where he ap proached Mrs Cicero and asked her for the list [of] names of employees who filled out a union card for Local 327, which [he] was ordered by Mr Cicero to do He testified that she gave him the printout without comment Apparently he did not retain the document Mrs Cicero did not testify Miller testified that although the Ross Park cleanup operation was not represented by Local 327, the Kauf mann's North Hills store (apparently also referred to as "McKnight ) had closed and moved into Ross Park mall and some of the Systems employees at the North Hills store who had been active Local 327 employees and rep resented by Local 327 transferred to the Ross Park Kauf mann's store, at which the McKnight contract may or may not have been transferred He did not explain whether they were considered to be part of a prospec tive pool of Porter transferees He testified that the em ployees who transferred from 300 Sixth Avenue were al ready Local 327 members presumably pursuant to the union security clause of the labor agreement and that their replacements would be newly hired persons subject to the same union security clause However he testified that two of the transferees from 300 Sixth Avenue had apparently abruptly decided to transfer back to Porter In cross examination, he testified that he transferred five or six employees from 300 Sixth Avenue, seven employ ees from Ross Park, and had hired his stepbrother, Ed Miller In further persistent cross examination, he ac knowledged as true his affidavit statement to the effect that he also hired about five employees whose `applica tions" were on file and who were not members of Local 327 He also conceded that none of the Ross Park employees had told him that they were Local 327 mem bers nor had he actually seen any union members cards or applications filled out by them He thus relied entirely on that computer printout He offered no explanation about why he had hired as many as five applicants" who had not evidenced past membership in Local 327 He insisted, however, that he hired the Ross Park em ployees who were among an unspecified number listed on the computer printout because they were supposed to be Local 327 employees, and that there were only a handful" of such cardsigners among all the Ross Park employees Miller was silent about having a floating supply of persons to be drawn on but he did not contra dict Noble Noble conceded that at the Porter preopening staffing meeting, there may have been a reference to Local 327 He explained that it was discussed that some of the 300 Sixth Avenue transferees could very likely be members of Local 327 ' but he asserted that they did not know what the ultimate mix would be He did not provide a context for the Local 327 reference i e what prompted it With respect to Miller s testimony regarding a coin puter printout Noble testified that he had been unaware of the existence of any such record, and asserted that there had been no conversation at the meeting to obtain any kind of printout or to hire Local 327 people out of Ross Park services, and that Miller warn t telling the truth From the testimony of both Miller and Noble there was no discussion whatsoever about the possibility of utilizing any of the predecessor on site employees As with the 300 Sixth Avenue predecessor employees there is no evidence that Systems had determined not to use their services because of the quality of their work or that they attributed the poor service and conditions at the buildings to be the result of employees' poor work rather than the result of lack of supervision inadequate supplies, or poor management In redirect examination, Noble testified that Lisa Mobley was mentioned at the August Porter Building staffing meeting as a highly thought of employee and potential supervisor He denied any reference to her as a key plant ' or to her status as union or nonunion member He testified that all the Sixth Avenue employ ees were offered a voluntary transfer and were thus given an opportunity to assist their employer who needed their cooperation and was implicitly beholden for this cooperation Cicero was called by Respondent for the expressly limited testimony concerning subsequent recognition and SYSTEMS MANAGEMENT 1091 bargaining with Local 327 at Porter and certain mci dents involving the alleged subsequent employment at tempts by predecessor employees He was not called on to and he did not, contradict any of Millers statements concerning the Porter Street staffing meeting , nor any of the statements attributed to him by Miller Palmer did not testify, nor did Mrs Cicero Respondent Systems uncontroverted record evidence reveals the following employees were utilized for the ini tial Porter Street operations Five employees , Broadnax, Higgins, West, Jefferson, and Trowery were recalled Ross Park special services employees , i e , unrepresented cleanup crew Jordan was designated on Systems records as having worked at various locations from 17 July to 9 August 1986, and unemployed until 2 Septem ber He could very well have been assigned to the Ross Park cleanup operation, as Miller testified and Systems asserts in its brief Taylor was a designated "floater" em ployed at various Systems' locations from 24 July 1986 until assigned to Porter on 2 September He was there fore not unemployed prior to 2 September and also was not a former North Hills (McKnight) employee repre sented by Local 327 Three persons were voluntarily transferred from 300 Sixth Avenue-Mobley, Harvey, and Butler Respondent Systems asserts in its brief that in addition to Taylor, employees Baxley , Dingle, Hall and Mahone were floaters selected by Miller for Porter employ ment starting 2 September, citing Miller s testimony re garding five unidentified persons hired from applica tions on file , and the testimony of Accounting Manager Thomas Onestack who testified in reference to the record evidence That evidence discloses the following employment history Baxley was employed directly at Porter on 4 September and terminated 30 September Salina Dingle and Darlene Hall also are disclosed to have commenced Systems' employment in September di rectly at the Porter Building Hall worked from 2 to 11 September and Dingle worked from 12 September to March 1987 It was disclosed from the records that Malone commenced employment on 8 April 1986 at 300 Sixth Avenue where she worked for 1 day and thereafter at another account from 10 April until 3 September and from 4 September at the Porter Building She was termi nated on 28 October 1986 The record evidence supports Miller s description of D Hall Dingle , and Baxley as applicants for employment and not regularly employed floaters Systems' record evidence discloses only four persons explicitly designated as previous floaters, i e , Taylor Edward Miller and two others who were uti lized only in preopening setup , i e, delivery of materials in August Mahone however , having worked at two prior locations could justifiably be characterized as a `floater Significantly , Miller did not contradict Noble's characterization of them as a floating pool of potential employees for whom Miller was seeking a permanent home Edward Miller worked until 11 September Sys tems record evidence also discloses that on 18 Septem ber 1986, Tommy or Tammy Hall was hired directly at Porter and worked there until 24 September and has not been employed again until employed at 300 Sixth Avenue from 7 to 29 January 1987 Also, Tonya Hender son was hired at 300 Sixth Avenue and worked 1 day there and was employed at Porter from 15 September through 31 December 1986 Employee English was hired 19 September directly at Porter, worked until 11 Octo ber, and was reemployed at 300 Sixth Avenue in 1987 The record evidence submitted by Systems without objection consisted of summaries of documentary evi dence Respondent proffered the underlying business records for inspection by the General Counsel Subse quent to an opportunity provided to the General Counsel to inspect that data, much of which was produced pursu ant to the General Counsels own subpoena no challenge was made to that record evidence nor was it rebutted According to that evidence , as supplemented credibly by testimony of Onestack , Systems' records disclose no rec ordation that any of the initial Porter Building employees had signed union membership cards and/or authorized dues deduction for Local 327 as of 2 September, with the exception of Lisa Mobley and Shelley Harvey Al though its significance is undervalued by the General Counsels brief consideration of it , this evidence remains unrefuted and establishes the fact that the purported scheme netted only two apparent Local 327 members at a period of peak employment which Cicero considered was the key time determinant of successorship obliga tions With respect to Miller s testimony regarding computer printout of Ross Park employees who had executed dues authorization cards or union membership cards, Onestack testified that there were no such computer printouts maintained with that information He testified that hand generated ledger sheets under the control of his assistant, Mrs Cicero, would contain that type of information The employee ledger sheets for the laid off Ross Park employees actually rehired at Porter July and August reveal no deductions for union initiation fees or union dues Furthermore, with the exception of Jefferson all those employees, including Taylor, had worked for Re spondent for less than 30 days at Ross Park, thus rein forcing the evidence that they had not in fact executed dues deduction authorization while at Ross Park Thus the undisputed record evidence demonstrates that Re spondent Systems had no records extant on which to provide Miller with the information he vigorously insist ed was given him by way of a computer printout at Noble s or Cicero s orders as part of a deliberate scheme The General Counsel proffered no rebuttal evidence or testimony to contradict this record evidence, or on which to infer its fraudulent contrivance None of those former Ross Park employees were called to testify in re buttal With respect to the three employees transferred from 300 Sixth Avenue, Patricia Butler had commenced em ployment at 300 Sixth Avenue on 31 August 1986 She testified as a General Counsel witness but did not rebut Systems record evidence that she did not sign a dues deduction authorization for Local 327 prior to the trans fer Indeed, she had no opportunity to demonstrate any proclivity for pro Local 327 during her short stay at 300 Sixth Avenue Shelley Harvey a General Counsel wit ness testified that she had been hired at 300 Sixth 1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Avenue 16 February 1986 Neither Harvey nor Butler testified about any reference to their union proclivities in the circumstances of their transfer to the Porter Building Mobley, the Local 327 steward however, testified that Boggs asked her and five or six unidentified employees to work at the Porter Building for 1 or 2 weeks When asked what reason Boggs stated, she testified that the stated purpose was to help commence its operations, i e help open the building up, get it into shape On ex haustion of recollection about what other reason was stated by Boggs, Mobley hesitantly responded to the question of what union reference there may have been we were told that because we were union-or, that we had to be union to go to the Porter Building and that s why she needed us to go because we were union She testified this conversation occurred about 10 days prior to the opening and that she Harvey , Catherine Kunesky and Pat Thomas also accompanied her to the Porter site She testified without corroboration that after about 2 weeks they were offered the option of staying or returning but that Kunesky and Thomas returned and she and Harvey stayed The record evidence fails to dis close any Porter Street employment of Kunesky or Pat Thomas Mobley was not corroborated by either Harvey or Butler nor any other employee In cross examination, she testified that six employees were asked individually to volunteer, rather than asked as a group She admitted that as many as 10 could have been asked, that she was asked, not ordered to transfer that she volunteered and that both she and Harvey wanted the assistant supervisor job there, and that the stated purpose was to assist in getting the building in shape Boggs testified without contradiction that Miller had asked her to obtain the best cleaners to volunteer and assist in the opening of the Porter Building because it was in poor condition She corroborated Mobley to the extent that she did ask this of five or six cleaners at 300 Sixth Avenue but she claimed that she did so because these were the best workers She did not identify these persons except that she trained Mobley and Harvey to be back up supervisors who each were contending for promotion as backup supervisor at Porter and they each told her that was the reason they wanted to transfer Wilbur Watts was assigned as supervisor at Porter Boggs failed to testify that she explicitly told these em ployees that they were being asked to transfer because of their abilities, and she did not explicitly contradict Mob ley s testimony except to the extent that she claimed that Mobley asked to be transferred whereas Mobley testified she was solicited Despite the failure of a clear contradic tion and Bogg s lack of credibility in other areas I am constrained to discredit Mobley because of lack of cor roboration, inconsistency, lack of spontaneity and con viction in demeanor and poor recollection which re quired prompting by counsel F Recognition of Local 327 at Porter Building Mobley testified that on 2 or 3 September Kachmank visited her at her home carrying with him union forms that employees filled out for the 300 Sixth Building to pass out to the people at the Porter Build ing in order to receive more money [and] okay plus we had to be in the Union Thereafter she distributed these forms and returned them to Kachmank She testified that Kachmarik told her that there was a chance of obtain mg a 35 cent raise if they signed the forms and that he said something about that it wasn t-he didn t want to make the same mistake that he did at the 300 Sixth Avenue building at the Porter Building or something of that nature that I recall In cross examination, she admitted that Kachmank did not tell her in so many words that Local 327 cardsign ing was mandatory She did not contradict Kachmank s testimony that he told her that the employees would also be solicited by Local 29, and they had the right to choose which Union if any, they wanted as bargaining agent She testified that on 5 September she solicited about 12 or 13 Systems Porter employees to sign union membership cards She identified that the following signed cards on the same date Jordan, Butler, Harvey, Higgins, Sharon Mahone (often erroneously referred to as Malone) Taylor Trowery, and West They all signed cards which she conveyed to Kachmank In soliciting those cards she testified that she told the employees that the forms were union authorization cards and that Kach marik said that if they wanted to earn more money, then they had to sign up and go union She testified that she dated all the cards 5 September on his instructions and had done so on the date he gave them to her However, it is not clear that they were not actually signed on that date She did not testify that she told any employee that union membership was a condition of employment Mob ley s testimony made no reference to any request, demand, or suggestion by Boggs Miller, or any other Systems supervisor or agent that she engage in organiza tional activities for Local 327 nor that they even dis cussed it with her Thus if she were to be a key plant she was to be programmed by Local 327 and not direct ly by Systems Kachmank testified that within a day or so he re ceived from Mobley union representation and dues checkoff authorization cards dated 5 September In adds tion to those named by Mobley he identified cards signed by employees Henderson Broadnax as well as one signed by Mobley Kachmarik testified that based on receipt of these cards he demanded bargaining recogni tion of Local 327 by letter dated 9 September to Cicero which forwarded the cards and which named the card signers with the exception of Henderson That card is dated 14 November 1986 Kachmank s identification of it as part of a group identification solicited by counsel for the General Counsel must have resulted from inadvert ence There clearly were 10 such cards executed on 5 September The Porter Building cleaning employees had been told by their employer, National, on 28 August that they were terminated as of 29 August because a new contrac tor would not require their services In the past these employees some of whom had been employed there for SYSTEMS MANAGEMENT 11-20 years, had been automatically retained by a succes Sion of cleaning contractors without employment inter ruption and without any effort on their own behalf None of these employees had received any contact from Systems About 5 p in on 2 September, six former Na tional employees accompanied by Local 29 representa tives Pipes and Billy Jo Jordan entered the Porter Build ing and confronted Miller , of whom they demanded that they were ready to perform work The testimony of Pipes and five of the employees vanes about what was said (The sixth employee had since deceased on an un specified date ) It appears that Miller told them that be cause Systems, the new contractor, had its own work force, it did not need their services and when they asked for job application forms , he said that he had none Pipes testified that he erroneously told Miller that the employ ees had not had prior notice of termination During the confrontation, Lehman's manager, Black, arrived and during a discussion in which Pipes alluded to the 18 year tenure of the former employees, according to Pipes, Black disclaimed concern and stated that Local 29 did not have jurisdiction in the building and that Systems had a contract with Local 327 and referred him to Sys tems Black contradicted Pipes and testified that the only contract he referred to was Lehman s contract with Sys tems, and that he had no awareness of what union, if any, represented Systems employees on that site Pipes was not corroborated by any of the five employees who were present and who testified about the incident, nor was Miller called on to corroborate him Pipes did not evidence sufficient certainty of recollection of the con frontation I find that the evidence falls short of support ing a conclusion that Black was concerned about the de tails of how Systems was able to perform its contract to the point where he had been assured prehire recognition of Local 327 I credit Black 's denial Pipes and the former National employees departed on Pipes promise to seek NLRB assistance, but neither he nor the employees left with Miller the employees names addresses or telephone numbers By mailgram dated 3 September 1986 to Cicero, Local 29 claimed exclusive bargaining agent status of the Porter cleaning employees and did "submit" the names of former National employees as applicants to be con sidered for employment at the Porter Building On 3 September the unfair labor practice charge was filed in Case 6-CA-19465 and received by Systems on 5 Septem ber By letter dated 5 September Cicero in response disclaimed any intent by Miller to refuse to accept job applications and that their applications would be accept ed at 5 p in on Tuesday , 9 September at the Porter Building On 9 September, the six former National employees again appeared at the Porter Building where a second confrontation ensued between the group and Miller, who testified that they approached him in the basement area loudly and rudely As at the earlier occasion, Pipes was prohibited by Miller from talking to Systems employees Miller testified that he was enforcing his customary prac tice of prohibiting outside union solicitation that tended to interfere with an employees active duties As one of the applicants credibly testified there was all kinds of 1093 commotion, and they were all upset and that the scene became a madhouse as the former employees re ceived, filled out and submitted employment application forms Miller testified that he heard one applicant loudly state, Well, I in not working for this type of wages or nonsense He testified that as they were floating- walking down the hallway that they said , we re not going to work for substandard wages The six filled out applications forms were received by Miller The appli cants named themselves as references In the entry of the form reading would you work and followed by spaces to be designated full time , and part time, the appli cants all designated the full time entry but not the part time entry All indicated for the inquiry rate of pay expected' an amount almost and in one case more than double the rate Systems was paying its part time Porter employees Miller testified that contrary to usual procedures he sent the applications to the main office in Newcastle on Cicero s instruction Miller testified that Cicero told him that the applications would be taken because of the unfair labor practice charge filing Cicero testified that he reviewed each of the applications that sought full time work at excessively higher rates and received from Miller an account of the loud joint application scene de scribed above, and on that basis concluded that the appli cants did not seriously seek employment but rather sought to make a statement for Local 29, and accord ingly he did not hire them By letter dated 11 September to Kachmank from Cicero Systems recognized Local 327 as exclusive bar gaining agent at Porter Street based on the submission of 10 authorization cards which Cicero calculated as 83% of our crew on the job Cicero offered to commence contract negotiation on 17 September In addition to the 10 cardsigners who were still employed at Porter on 11 September employed on that date also as their last date of employment at Porter were Edward Miller T Hall and D Hall Subsequently commencing Porter employ ment were Dingle on 12 September, Henderson on 15 September and English on 19 September By mailgram sent on 17 September to Systems Local 29 claimed representational interest in the Porter employ ees On 25 September, Local 29 filed a petition for certi fication of representative for the Porter Street employees in Case 6-RC-9751 Kachmank testified that he and Noble had agreed on a collective bargaining contract on 25 September and that he sent the proposed contract to all employees and then arranged for a ratification meeting, which was held on 6 October at the Martin Building at which only two em ployees attended and at which both employees rejected the contract Kachmank testified that one of the employ ees told him that Mobley, in the course of soliciting union cards stated that the union card execution was a condition of employment retention Thereafter Kach mank arranged for and held a meeting with 10 to 12 em ployees at the Porter Building , exclusive of the absent Mobley, at which Kachmarik testified that they all attrib uted the same comment to Mobley Kachmank testified without contradiction that initially the employees told 1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD him they did not want him to represent them but, after meeting privately in his absence, they called him back to the room and stated that a majority of them had decided to retain his representation Butler testified without con tradiction that Supervisor Watts told her in advance when and where a union meeting was to be held, and that it lasted from 5 to 7 p in , well into shift time Nei ther she nor any other employee testified about what oc curred at this meeting Nor did any employee except Mobley testify about Local 327 authorization card solici tation Kachmank testified to the following events He and employee Jordan met with Noble on 20 October to re negotiate a contract Noble rejected Jordan's request for higher wages Jordan then stated that the employees changed their minds about continued representation by Local 327 Subsequently, on the same date, Kachmank again met with the employees at the Porter Building about 5 p in Not all, but a majority, of the employees were present Kachmarik was told that they no longer desired him to represent them On 21 October, Kach mank telephoned Noble and stated that the employees rejected Local 327 representation Kachmank testified, and Noble confirmed, that he expressed displeasure over the resulting withdrawal of union recognition Noble ex plained that he was concerned because of the possible impact on employee morale and job performance caused by employee ill feelings toward Kachmank By mailgram dated 23 October addressed to Systems, Local 29 assert ed that the Porter employees desired Local 29 represen tation and demanded access to speak to the employees About 29 October, Kachmank received a letter dated 22 October in which a disclaimer of representation because of alleged cardsigning misrepresentation was attested by the purported signatures of employees Higgins, Jordan, West, Mobley, Taylor, Broadnax, and Henderson, whose card is dated in the same handwriting as the signature with a date of 14 November and who was not one of the original cardsigners by virtue of her late employment date In cross examination, Kachmank testified that at an unspecified date under unknown circumstances, he ob tained an undisclosed number of additional cards Clearly, one of those cards was executed on 14 Novem ber Kachmank testified that he proceeded on apparent rerecognition by Cicero to agree to and execute a con tract for the Porter employees on 17 December 1986, covering a unit of `all custodians and working supervi sors,' and having a scope effective `within the bound apes of the United States," which incorporated by refer ence "all work outlined in the attached agenda, ' which stated that the addendum applies only to the jobsite known as the Porter Building' There is no reference thereon to a specific length of workweek or to full time or part time work Noble testified that he received a letter dated 25 No vember 1986 from Kachmank That letter described a misunderstanding of the Porter Building employees which constrained Kachmank to disregard all earlier au thorizations It asserted that he had again met with the employees and had obtained new cards which were en closed and were signed by Broadnax, Butler, Dingle, Harvey, Henderson, Taylor, and West In that letter Kachmank advised that a ratification meeting of employ ees would be held on 1 December 1986 By letter dated 10 December, Kachmank advised Noble that employees had ratified the contract Subsequently, Kachmank and Noble executed the contract on 17 December 1986 No employee testified about any of these authorizations or their circumstances From September through 10 April 1987, 37 persons had been utilized for varying periods of employment by Systems at the Porter Building, and the number em ployed as of that date is about that projected by Miller The General Counsel asserts that Systems continued without interruption to deduct dues from the paychecks of the 300 Sixth Avenue employees who transferred to the Porter Building The record does not clearly estab lish this Onestack's testimony does not clearly indicate an uninterrupted continuation of dues deductions, and he elsewhere testifies that the practice of Systems is to deduct dues only when an on site contract is executed Purported documentation cited by the General Counsel does not appear to have been offered and received into evidence The General Counsels assertion that Onestack admitted by implication the existence of an ongoing Local 327 contract in early September with respect to his testimony regarding a wage dispute between Systems and Miller's brother, is not supported by unambiguous testimony G Independent Acts of Interference Paragraphs 15(b) and (c) of the complaint were dis missed on unopposed motions at trial Paragraph 15(a) al leges that Systems Agent Palmer on or about 16 Febru ary 1986 informed employees that it was a mandatory condition of employment to retain Local 327 member ship There was evidence about the conduct of Hudson prior to that date but which was not alleged in the corn plaint There was no evidence about such conduct by Palmer The complaint alleges that on or about 26 October, Systems, by its Supervisor Watts at the Porter Building, promised employees benefits if they supported Local 327, and also interrogated employees concerning their union membership, etc Paragraph 15(e) alleges that Boggs in terrogated Porter employees concerning union member ship etc These allegations were based on the testimony of Butler, which was denied by Watts and Boggs But ler's testimony about these incidents was so vague, un certain, selective, cryptic, and without context as to pro vide sufficient basis for a finding that violative conduct occurred, and not deserving of any discussions, as indeed the General Cousel failed to accord in the brief IV ANALYSIS A Applicable Precedent The General Counsel cites NLRB v Burns Security Services, 406 U S 272 (1972), as authority for the asser tion that had Systems hired a sufficient number of the preceding contractor's employees so that they would have constituted a majority of Systems employee com plement, an obligation to bargain with Local 29 would SYSTEMS MANAGEMENT have devolved on it The General Counsel contends that Systems, aware of that constraint, discnminatonly re fused to hire the employees of Pritchard, pursuant to First Union's "requirements and discriminatonly refused to hire National employees, in order to avoid recognition of and bargaining with Local 29 In view of the substan teal evidence of economic motivation, the General Colin sel argues that opposition of unionization for economic reasons, which results in the discrimination of union em ployees, is nonetheless violative of the Act, and that Re spondents are thus not exculpated The essence of the General Counsel's theory of violation is that Respond ents, being aware of the Burns mandate, perceived as the only feasible means to achieve a lower cost contract was to avoid bargaining with Local 29 which, with its eco nomic power, had managed to achieve an apparent mon olithic wage structure in downtown Pittsburgh until recent times To avoid bargaining with Local 29, Re spondents discnminatonly caused or effectuated the non hire of the on site employees who had traditionally been automatically retained, i e , again until recent times The only options, according to the General Counsel, per ceived by Respondents were either to hire the former employees and be bound by the higher wage structure and/or attempt to confront potential picketing and/or other tactics by Local 29, or to hire a new work force by dealing with a nonunion contractor or a contractor who assured recognition of a more accommodating bar gaining agent The tenor of the General Counsel's argu ment suggests discrimination as the only perceived option for economic relief The Supreme Court in the Burns decision, however, did allude to another option not considered by the Gen eral Counsel In that case the Court stated that an other wise successor employer is free to set the initial wages and terms and conditions of employment on which it in tends to offer those persons it ultimately hires except in that situation where "it is perfectly clear that the new employer plans to retain all of the employees in the unit, ' and thus must first consult with the bargaining agent prior to changing the old wage rates and terms and conditions of employment In Spruce Up Corp , 209 NLRB 194, 195 (1974), enfd on other grounds 529 F 2d 516 (4th Cir 1975), the Board exempted the successor from the "perfectly clear exception where that succes sor made it clear from the outset" that it had intended to set its own employment terms inasmuch as the number of old employees hired would be contingent on their ac ceptance of those new terms The Board stated We believe the caveat in Burns, therefore, should be restricted to circumstances in which the new em ployer has either actively or, by tacit inference, misled employees into believing they would all be retained without change in their wages hours, or conditions of employment, or at least to circum stances where the new employer, unlike the Re spondent here has failed to clearly announce its intent to establish a new set of conditions prior to inviting former employees to accept employment 1095 See also Holiday Inn of Victorville, 284 NLRB 916 (1987), in which it was held lawful for a successor to make um lateral changes contemporaneous to the announcement of hiring However, the Board continues to find that where the successor employer fails to hire its predecessor's em ployees because of unlawful discriminatory motives, it may not lawfully unilaterally set the initial terms on which it will hire those employees Shortway Suburban Lines, 286 NLRB 342 (1987), State Distributing Co, 282 NLRB 1048 (1987) Loves Barbeque Restaurant No 62, 245 NLRB 78, 82 (1979), enfd in pertinent part sub nom Kaltman v NLRB, 640 F 2d 1094 (9th Cir 1981), in which, however, the court's remedial approach was at variance with that of the Board's status quo ante reinsti tution of wage rates, etc Assuming a nondiscriminatory economic basis for the decision to set new wage levels and working conditions, i e, part time employment, it would appear that another valid viable option was available to a successor employ er, i e , to set a lower wage rate and part time employ ment in order to substantially undercut the established competitor rates This option, of course, entailed the pos sibility, if not probability, that the old employees would accept employment under their rates and conditions and seek higher rates through future bargaining on their behalf by Local 29 Gundlach's vague testimony does not necessarily preclude the inference that in late De cember 1985 Sirow considered that valid, as well as dis criminatory, options were open to contractors who could give him a contract far below the current market rate Systems argues that it did not seek to satisfy First Union's low contract rate and Lehman s objective by re sorting to a discriminatory scheme, but rather by its bid ding a price that was calculated on a substantially lower initial wage rate for employees who accepted those rates, and who accepted employment on a part time basis Thus it argues that its determination of initial wage rate and part time employment conditions was economically motivated Systems argues that the burden of proving unlawful discrimination remains at all times with the General Counsel and that this burden was not sustained by the General Counsel who not only failed to prove discriminatory motivation, but also failed to prove that the predecessors employees would have accepted em ployment under the conditions it set and that they would have constituted a majority of its employees at either 300 Sixth Avenue or the Porter Building Respondents citation of authority relative to the Gen eral Counsel's burden of proof neglects the most crucial, i e, Wright Line, 251 NLRB 1083, 1089 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989, (1982) There the Board stated Thus, for the reasons set forth above, we shall henceforth employ the following causation test in all cases alleging violation of Section 8(a)(3) or vio lations of Section 8(a)(1) turning on employer mote vation First, we shall require that the General Counsel make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employers decision Once this is established, the burden will shift to the 1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employer to demonstrate that the same action would have taken place even in the absence of the protected conduct The Wright Line criteria has been applied to issues identical to those here, and the Board with Court ap proval held that once the General Counsel has estab lished a prima facie case of discrimination , the burden shifts to Respondent Spencer Foods, 268 NLRB 1483 1485 fn 8 (1984), affd in relevant part, reversed in part the Board s dismissal of 8(a)(5) allegations, and remanded for reconsideration of the remedy , sub nom Food & Commercial Workers Local 152 (Spencer Foods), 768 F 2d 1463 (D C Cir 1985), Shortway Suburban Lines, supra Furthermore, with respect to any uncertainty that might anse about whether predecessor employees would have applied for and would have accepted employment, and also about what terms and conditions of employment would have been maintained in the absence of a discnmi natory refusal to hire the predecessor's employees, Board precedent supports the General Counsel and, contrary to Respondents arguments, holds that such uncertainties will be resolved against the wrongdoer whose conduct created those uncertainties State Distributing Co, supra On finding puma facie proof of discriminatory refusal to hire a predecessor's employees, the Board stated that it was the burden of the otherwise successor employer to prove the allegation that it did not hire those employees because they would have refused to work for the wages it was offering Shortway Suburban Lines, supra In such cases as Shortway Suburban Lines and Spencer, the Board has inferred that at least a part of the motivating factor was unlawful discrimination , based on a deviation from past practice, the pretextual nature of proffered reasons for nonhire, etc B Allegations Concerning the 300 Sixth Avenue Employees With respect to the 300 Sixth Avenue building situa tion, Respondent correctly asserts that the General Counsel has not proven that systems deviated from its universal past practice in the general manner and means of staffing that building I conclude that the General Counsel has also failed to prove by coherent probative evidence that First Union required requested , directed demanded or otherwise caused Systems to effectuate a low cost contract specifically by refusing to rehire the Pritchard employees as I have previously detailed However the General Counsel has shown that First Union vigorously solicited a low cost cleaning contract which required a labor cost factor grossly inferior to the downtown Pittsburgh Local 29 standard rate and that it was aware of achieving this type of contract through a variety of options or strategies, some but not all of which were lawful The evidence discloses that Systems responded to First Union s solicitation by assuring Sirow of First Union that its bid was feasible because it had fac tored into it the lower wage rate negotiated with Local 327 in a labor contract that would be in place at 300 Sixth Avenue as of the inception of its work there As found above Systems complied with this solicitation by contemporaneously prerecognizing Local 327 as bargain ing agent of its employees at 300 Sixth Avenue, prior to their actual employment there I find that Systems exe cuted a written on site contract with Local 327 sometime in January 1986 or early February that Systems Region al Manager Hudson was aware that it was extant and was applicable to employees even as they were hired, and told them so Whether Systems motivation about the identity of em ployees hired at 300 Sixth Avenue was discriminatory, or whether Systems intended merely to prerecognize Local 327 regardless of the identity of on site employees, must be resolved by further analysis of its relationship with Local 327 Cicero conceded that he understood when hiring 300 Sixth Avenue employees that Systems was obliged to recognize Local 29 , had a majority of on site employees been predecessor employees Systems ' prehir ing recognition of Local 327 and Systems objective of effectuating an economically feasible contract with First Union was in stark conflict with an employee comple ment consisting of a majority of predecessor employees Prerecognition of Local 327 therefore necessarily pre cluded the hiring of a substantial number of predecessor employees and had to form the integral part of the basis of its bid In addition to Systems motivation to effectuate Local 327 prerecognition , the General Counsel has established these additional facts Systems was eager for access into the downtown Pittsburgh market It wanted to make a very good impression on First Union It held itself out as an employer of a stable experienced work force of full time and part time employees with a low turnover rate It admittedly sought out experienced workers and, as it did at the Porter Building resorted to the transfer of ac tively employed persons before resorting to new hires It was aware that there was an actively staffed crew of ex penenced workers at 300 Sixth Avenue There is no evi dence that it blamed the unkempt conditions at 300 Sixth Avenue on those workers or refused to consider them because of their lack of abilities There is evidence that at least in some circumstances, predecessor employees have been interviewed and hired Its hiring agent ac knowledged the objective advantage of retaining prede cessor employees particularly because of their familiarity with the building which was a totally new type of ac count Systems made no evaluation or consideration of and did not seek out, the predecessor employees but rather solicited new hires through a tedious interviewing process of 100 applicants who responded to a blind ad vertisement in an advertising circular These facts coin bined with Systems prehiring recognition of Local 327 compel the conclusion that the General Counsel has made a prima facie showing sufficient to support an in ference that the predecessor employees membership in and representation by Local 29 was a' if not "the mo tivating factor in Systems hiring decision The Respondent therefore had the burden of proving that the predecessors employees would not have been hired regardless of their Local 29 membership and repre sentation Although the General Counsel may not have proven conclusively that Respondent deviated from uni versal or general past practice when it hired new em SYSTEMS MANAGEMENT 1097 ployees at 300 Sixth Avenue, the Respondent did not adduce any meaningful, persuasive and credible evi dence that it did act in accord with universal or even predominant past practice The testimony elicited by the General Counsel from Hudson , as noted above, was se lective and inconclusive as Systems actual , general past hiring practices Even with respect to Hudson, some times he did and sometimes he did not interview prede cessor employees, but no explanation was proffered by him or any Systems witness about why no consideration was given to soliciting the former Pritchard employees Respondent correctly argues that an employer is not nec essanly obliged to seek out the predecessor employees In this context, however, Respondent in urgent need sought out new employees by way of a blind advertise ment, which necessarily gives rise to an inference that Respondent sought to avoid the risk of possible prede cessor employee applications, had they been then aware of their imminent termination By the time that the Pritchard employees were notified of the installment of a new contractor who did not intend to automatically retain them but who had already assembled a new crew, it had clearly become a futility for them to have applied for jobs that were filled Under the facts of this case, it was incumbent on Respondent to come forth with some cogent explanation as to why it did not consider or ac tively seek out the predecessor downtown employees as it had actively sought out totally new employees inter viewed in the northern part of the city No manager testified that consideration was not given to employment of predecessor employees because of the failure to submit written applications Systems merely argues in its brief that no predecessor employee filed an application Systems also argues in its brief that it had a `sound business justification for following its own practice ' of not advising Pritchard employees that it had acquired the contract and that it was taking employ ment applications Systems cites Hudson s and Noble s testimony in support of this contention Neither Noble, Hudson, nor any other manager testified that Systems uniform or even general past practice is not to advise and/or not to consider predecessor employees for em ployment opportunity where such opportunity is not ob vious to them Hudson merely testified that he always placed blind advertisements He did not testify that he did so exclusively Nor did he testify that he placed blind advertisements that were timed to solicit applications prior to the awareness of the predecessor employees that were to be terminated He testified that he only actively notified three accounts He did not testify why He did not testify that these accounts were not notified by other means known to Systems Furthermore , Hudson s hiring experience was limited to only 20 of 90 to 100 locations and, moreover, in 3 accounts encompassing 7 locations he actually notified and interviewed predecessor employ ees Why he did or did not interview more is not ex plained His testimony is too imprecise for Systems to claim that it has proven that it had acted according to past practice Noble's testimony as to actual staff was limited to the reasons the building was temporarily overstaffed with ex penenced workers from its other locations If anything, his testimony suggests the urgency of finding sufficient, experienced persons He was silent about the motivating decision to hire new employees and intent about the predecessor employees He did testify that Systems in tended to utilize part time employees but he did not tes tify that the predecessor employees were ignored be cause of any assumption that they would not accept part time employment at the wage level Systems intended The only business justification testified to by Nobel is his uncorroborated, undocumented, very loose, conclusion ary, and generalized testimony that he could not think' of a single location where full time employees are uti lazed Despite this testimony, Systems shortly afterward solicited the Porter Street account and represented itself to Porter as an employer of a stable, experienced work force of full time and part time employees of low turnov er i e , the contrary of its 300 Sixth Avenue subsequent experience This inconsistency, as well as inconsistency and lack of crediblity in Respondent's testimonial evi dence, necessitates a more precise, cogent, probative evi dentiary submission to sustain Respondents burden of proof which, I find, included the burden of proving that its past practice was indeed that of hiring only part time employees, and that it was not contrived for 300 Sixth Avenue as an inherent element in the contemporaneous scheme to avoid and deter hiring of predecessor employ ees I therefore must conclude that Respondent would have offered employment to the Pritchard employees to fill urgently needed positions for experienced cleaning persons at 300 Sixth Avenue had it not been for its un lawfully discriminatory motivation of effecutating a pre hiring recognition of Local 327 at that site in January or early February 1986 by refusing to hire predecessor em ployees, in violation of Section 8(a)(1) and (3) of the Act Any uncertainty about whether any of these predecessor employees would have accepted employment offered under lawful conditions must be resolved against Re spondent Systems, State Distributing Co, supra I further find that Respondent therefore had it not been for its unlawful discrimination , would have been a successor employer, having assumed the same work as Pritchard and having hired those former employees who would have formed a majority of its regularly employed new crew exclusive of temporary employees at a time when a reasonably representative number had been employed after an initial startup period By refusing to recognize and bargain with Local 29 as exclusive bargaining agent for the cleaning and janitorial employees at 300 Sixth Avenue Respondent violated Section 8(a)(1) and (5) of the Act Furthermore, the setting of new terms and conditions of employment was itself integral to and premised on the unlawful refusal to hire the predecessor employees Al though a successor employer is ordinarily privileged to effectuate initial terms and conditions of employment of predecessor employees because Respondent Systems un lawfully failed to hire these employees because of their membership in and representation by Local 29, it was not lawfully at liberty to do so, and by such action it fur 1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ther violated Section 8(a)(1) and (5) of the Act by these unilateral actions Shortway Suburban Lines, supra With respect to its relationship with Local 327, I find that Systems further violated Section 8(a)(1) and (2) of the Act as alleged in the complaint by its recognition of Local 327 and execution of a collective bargaining agree ment with it at a time in January or early February 1986, prior to its employment of any employees at 300 Sixth Avenue Further, even had recognition not been ex tended until after 16 February, it would have been un lawful Respondent correctly cites Bruckner Nursing Home, 262 NLRB 955 (1982), and Great Southern Con struction, 266 NLRB 364 (1983), for the proposition that it is not unlawful for an employer to voluntarily recog nize a union that represents an uncoerced majority of its employees The operative word, of course, is un coerced " The employees of 300 Sixth Avenue were de prived of the opportunity to freely make an uncoerced decision about representation on or after 16 February, even had they been given the opportunity in light of the conduct of Hudson who told them when hired that they would by virtue of their very employment conditions be members of Local 327 and who then, when engaged in the orientation of new employees, introduced Kachmank who explained things to them by reinforcing Hudson s statement, i e, they had to be Local 327 members to retain employment Accordingly, no uncoerced majority of employees designated Local 327 as bargaining agent Rather, the new employees were in effect ordered to become and remain Local 327 members pursuant to Sys tems unlawful discriminatory scheme Thus Systems violated Section 8(a)(1) and (2) of the Act by granting recognition to Local 327, and by there after maintaining a collective bargaining agreement with it under which it has maintained a union security clause that obligates continued membership in Local 327, and new membership on and after the 31st day of employ ment, and under which Systems has deducted dues and initiation fees from the pay of its employees and remitted the same to Local 327, which by its collaboration in the conduct violated Section 8(b)(1)(A) and (2) of the Act C The Allegation Against First Union With respect to the alleged liability of First Union the General Counsel contends that it should be found to be equally culpable with Systems because it had directed, required, or otherwise caused Systems, an employer with which it has a relationship of "an intimate business char acter, to violate the Act, citing Dews Construction Corp, 231 NLRB 182 fn 4 (1977) First Union is neither argued nor alleged to be a joint employer, alter ego, nor single integrated enterprise with Systems, and there is insuffi cient evidence of such relationship despite some routine directions to Systems employees by Becky It is not nec essary to evaluate whether the business relationship falls within that contemplated by Dews because I have found that the General Counsel has been unable to prove that First Union directed, demanded, requested, or otherwise caused Systems to accomplish its objective of a lower cost contract based on a lower than area standard wage rate, by the specific unlawful means of a failure to hire the predecessor employees Having made that finding, I also find it unnecessary to evaluate First Union s argu ment about the issue of timeliness of the amended unfair labor practice charge against it Accordingly, I conclude that the complaint allegation against First Union ought to be dismissed D Allegation Concerning the Porter Building With respect to the Porter Building, the facts are sub stantially changed A different building owner/operator was involved, and there was no blind advertisement" hiring of totally new employees and no prehire recogni tion of Local 327 The facts regarding negotiations be tween the owner, Lehman, and Systems are even more sparse than those involving First Union and its solicits tions for bids The evidence reveals that initially Lehman Manager Black wanted a different contractor, either be cause of unsatisfactory performance or possibly because of some other performance term dispute with National Ultimately, Black conceded that the final termination of Nationals contract was for `economic reasons Black had contracted a lower cost contract with National at another downtown building under which Local 29 repre sented part time employees were utilized He wanted a reliable but lower cost contract at Porter Systems satis feed his requirement The General Counsel argues forcefully that Black is not a credible witness Primarily, it is argued that his protested indifference to Systems labor relations is unbe lievable There is, however no direct evidence nor any compelling basis to necessarily infer that Black cared what specific means Systems used to obtain a cheap con tract It is highly reasonable to suspect that he did know and care, but the General Counsel has not proven that fact Furthermore, even if Black were discredited on the point, the General Counsel has still failed to prove that Black or any other agent of Lehman had requested, di rected required or otherwise caused or even solicited Systems to submit a low contract feasible necessarily only by the nonretention of predecessor employees As stated previously, a predecessor may lawfully determine the initial wages and conditions of employment offered to predecessor employment applicants The General Counsel has the burden of proving a prima facie case that discriminatory motivation was a motivating factor in the failure of Systems to hire Na tional employees With respect to the first union account, the General Counsel was able to prove a prima facie case and Respondent had not sustained its burden of re butting that case There, Systems lawfully could have set the initial wages and conditions of employment of em ployees on which to factor its bid and could have invited and/or accepted predecessor workers employment on those conditions and could have assumed the risk of sub sequent possible, if not probable, bargaining for higher wages if Local 29 had by chance ended up as a bargain ing agent, either by the nature of the employee comple ment or by new employee designation It did not do so but, rather, chose a different strategy as found above, i e , prehire recognition of Local 327 and the necessary concomitant of nonhinng of predecessor employees who would otherwise have been hired I do not believe that SYSTEMS MANAGEMENT having found that Systems chose the unlawful course of conduct for the First Union account that I must neces sanly infer unlawful motivation sufficient of itself to es tablish a prima facie case with respect to the Porter Building The burden is again on the General Counsel to prove its case in regard to the Porter Building, albeit im mediate past unlawful conduct may be evaluated The General Counsel attempted to prove that Respondent again planned to use Local 327 recognition as a means of avoiding Local 29 bargaining obligations and that the scheme again necessitated the nonhinng of predecessor employees to accommodate the needs of its client, Lehman This time however, Systems is argued to have contrived a scheme of packing the Porter employment roster with Local 327 members and supporters and with a key plant' so that less blatant subsequent rather than prehire recognition would be effectuated The evidence of this plot rests squarely on the credibility of Systems' former manager, Miller Much testimony and other evidence was adduced about Miller s potential bias, i e , the circumstances of his employment, the quality of his work performance, and the conditions leading up to his departure Contrary to Respondents assertion the evidence in the record fails to establish that he was involuntarily terminated He tes tified that he resigned, and that is supported by other evidence It is unnecessary to evaluate all the evidence addressed to his work performance and alleged problems arising therefrom It is clear from uncontradicted evi dence, including his own testimony and demeanor and uncontradicted testimony of Onestack, that Miller was sharply dissatisfied with the rate of pay and nonpromo tion of his half brother, and the alleged failure of Re spondent to compensate himself a certain percentage of costs charged to the customers His own demeanor on the witness stand revealed him to be the opposite of a disinterested or dispassionate witness He displayed pal pable eagerness and satisfaction when testifying to mat tern adverse to Systems interest I agree that Miller indeed, was a disgruntled former employee Of itself, such bias may not necessarily have debilitated Miller s credibility but merely served as an explanation for his willingness to cooperate with the General Counsel s prosecution and subject himself to the rigors of testify ing However, much more important and determinative than Miller's bias is the objective improbability of his tes timony The reference to the computer printout of Local 327 members came not initially, but later in his testimony when called on for details of the execution of the pro Local 327 staff packing scheme Each time he was re ferred to the printout his insistence on its existence became more forceful and vigorous Without hesitation he identified a printout of employee information shown to him by counsel for the General Counsel as similar to the printout given to him but without the numerical data He was as certain of this aspect of his testimony as he was of no other Yet, the unrefuted and unchallenged documentary evidence of Systems disclosed that kind of printout to be nonexistent That same evidence demon strated that the very persons who were supposed to be Local 327 members and/or supporters had given no evi 1099 dence to Systems that they were such and, moreover, that they were unlikely to have previously become Local 327 members or supporters Further indicative of the im probability of Miller's testimony is his admission that he hired about five applicants, knowing them to be non members of Local 327, and also that one of the three persons transferred from 300 Sixth Avenue was not a Local 327 member when Miller was supposedly ordered to arrange that all" Porter employees were to be such It should be recalled that he testified that new hires would be assigned to the First Union account to replace older transferees to the Porter Building The General Counsel argues that Millers testimony must be credited because it is consistent with the record as a whole which, it is argued, supports his testimony that Systems attempted to pack the Porter Building with Local 327 members, although these individuals [hired] may not have actually signed union cards or were laid off prior to formally becoming members I conclude that the improbability of Miller s testimony, re suiting from the evidence of apparent lack of any actual execution of such plan and evidence of nonexistence of source material alleged in aid of such plan, compels me to disregard his entire testimony as untrustworthy and unreliable even where it was not contradicted by Mrs Cicero, Cicero, or Palmer and even though it may have been consistent with Respondents past conduct and not at variance, if not consistent, with other circumstantial evidence If it were merely a matter of the printout s nonexistence, Miller's testimony might have been con strued to have been exaggerated but yet essentially true If it were merely the nonmembership of Ross Park spe cial services employees, it might have been explained as a recordkeeping blunder by Respondent However, all these factors particularly evidence that only two appar ent members were actually transferred despite the total packing intent command disbelief of all his testimony about the scheme Without Miller s testimony, the General Counsel has failed to make a puma facie showing of discriminatory motivation The General Counsel has shown that Re spondent was eager to obtain contracts in downtown high rise buildings by offering them at rates far below those of the Local 29 represented contractors who pre dominated in downtown Pittsburgh But merely offering a contract rate that necessarily involves a wage cost factor below the Local 29 area standard, does not compel the inference that predecessor employees must not be employed, otherwise no successor contractor would ever be free to set unilateral terms of employment and would be constrained to accept the economic impact of his predecessor's labor agreement The General Counsel has shown that Respondent failed to consider or invite the employment of the prede cessor National employees, but had not proven this to be in variation from Systems' own past practices and poli cies Unlike the First Union account, Systems did not need to solicit new employees for the Porter Building It did not need to solicit any new non Systems employees It had, prior to the Lehman account acquisition, a number of laid off employees It matters not that these 1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD employees might have been less experienced in the spe cific type of cleaning work performed by the National employees, because it is established by uncontroverted testimony that they had been promised reemployment pursuant to Systems past policy and practice Moreover, the General Counsel did not adduce any evidence of their lack of pertinent prior experience of Ross Park spe cial services employees Additionally, Miller had at his disposal several other non Local 327 potential Porter Building employees Assuming that they were not float ers as characterized by Noble but were applicants as seemingly characterized by Miller they were, as he testi feed, already pending applicants for employment ready to be used by him when needed and, as Noble testified without contradiction waiting for Miller to find a `home for them There is no evidence that these per sons, like the Ross Park employees, were any less expen enced than the National employees There is no evidence that their use was contrary to Systems past practice, or in any way unusual With respect to the transfer of some employees from a nearby account to augment the initial overstaffing exercise, there is insufficient evidence that such practice is contrary to past policy or practice, or that it was not conducive to good business practice The fact that overstaffing coincided with Cicero s impression that the employment level on the first day of operation was the determinant factor in successorship obligations is insufficient to infer that the proffered business justifica tion, reasonable on its face, was pretextuous There is no evidence that Respondent did anything regarding the Porter Building staffing that it would not otherwise have done in the absence of the predecessor employees Local 29 representation The General Counsel has thus failed to adduce sufficient credible probative evidence on which I can conclude that the proffered reasons for utilizing presently employed and previously pending applicants for Systems employment was so contrary to its normal business practice or otherwise unusual as to necessitate an inference that it was pretextuous and that it must be inferred that unlawful discrimination was a factor The General Counsel has also failed to adduce other evidence sufficient to raise an inference that unlawful discrimination was a motivating factor I conclude that demonstrating a discriminatory motivating factor with respect to the First Union account is insufficient Al though the General Counsel has shown that Respondent strongly preferred to avoid bargaining with Local 29 it has not been proven that this preference was a motivat ing factor at the Porter Building specifically with re spect to the staffing decision The fact that Systems may have been delighted by the bargaining consequence of its otherwise lawful conduct does not render that conse quence a motivating factor, i e, a causal factor in whole or part Thus, the General Counsel has failed to establish a prima facie case with respect to the initial staffing of the Porter Building The subsequent staffing of that building, i e the non acceptance of actual employment applications of prede cessor employees is also not shown to be discriminatorily motivated The special consideration of their applications at a higher than normal level is explainable by the sensi tive nature of Systems position having been accused of an unfair labor practice charge Extra caution by a higher level manager is reasonable and does not neces sarily bespeak unlawful discrimination as the General Counsel argues The former National employees con duct prevented Systems suspected motivation from being put to a real test for they themselves, effectively rejected subsequent employment on the terms and condi tions of employment determined by Systems The Gener al Counsel failed to prove by a prima facie case that the terms and conditions of employment were discriminator ly implemented at the Porter Building, and Respondent Systems therefore rightly disregarded the predecessor National employees applications With respect to the recognition of Local 327, there is no evidence that the posthiring recognition was granted pursuant to any coercive conduct of Respondent Sys tems Furthermore, there is insufficient evidence of any coercive conduct of Local 327 with respect to the solici tation of written representation designations Mobley did not testify that she told any employees whom she solicit ed that Local 327 membership was mandatory She did make the ambiguous statement that Local 327 union membership would effectuate a pay raise, but this sounds like mere noncoercive campaign propaganda Kachmar ik s testimony of employees statements and understand ings of what Mobley stated does not constitute sufficient probative evidence of what Mobley actually told them No employee was called to testify about these solicits tions Thus, contrary to the General Counsel's assertion, there is no competent evidence that Mobley told Porter employees that employment was contingent on Local 327 membership The General Counsel argues that the coercive and un lawful recognition of Local 327 a few blocks away at 300 Sixth Avenue 7 months earlier is sufficient to taint the solicitation inasmuch as there had been no effective repudiation of the coercive conduct which remained for Local 327 as a deceptive cloak of authority (Citing, inter alia Garment Workers v NLRB 366 U S 731, 736 (1961), and Kroger Co 275 NLRB 1478 (1985)) I do not agree The General Counsels argument would be more ap propnately applied to a situation where it is argued as a defense that a subsequent recognition in the same bar gaining unit is valid despite a prior recent unlawful one The Porter situation is distinguishable It involves a dif ferent bargaining unit at a different location under a dif ferent hiring manager at a time over 7 months remote, under different circumstances whereunder Systems' man agers sufficiently distanced themselves from Local 327 s organizing efforts Only two of the employees trans ferred to Porter Street had been subjected to Hudson s and Kachmank s coercive remarks at the 300 Sixth Avenue building I do not find it reasonable to presume that under these changed circumstances the deceptive cloak' of authority continued to inure to the benefit of Local 327, particularly in view of the General Counsel's failure to adduce probative evidence that Mobley did in fact reiterate to the Porter Building employees Hudson s and Kachmank s coercive statements to the First Union SYSTEMS MANAGEMENT 1101 employees and Kachmank s disavowal to Mobley of his earlier conduct and his assurance of employees freedom of choice of bargaining agent Kachmank's admissions that the Porter Building employees after becoming dis satisfied with his representation and after Local 29 had filed unfair labor practice charges and claimed an interest in them, related to him such conduct by Mobley, are of insufficient competency and weight to constitute that type of evidence, particularly in the failure of Mobley to so testify and the failure to adduce the testimony to that effect of any of the employees involved The General Counsel also argued that Respondent s recognition of Local 327 was granted prematurely at the First Union Building and `peremptorily at the Porter Building The problem of premature recognition usually occurs in cases of an imminently expanding unit where at the time of recognition there is an inadequate representa tion of the regular work force or operations are not normal Many of these cases are cited by the General Counsel regarding the First Union account, e g , Kroger Co, supra at 1479, Herman Bros, 264 NLRB 439, 440 (1982) With respect to the Porter Building recognition was granted after the submission to Systems by Local 327 of 10 employee executed authorization cards that the General Counsel has not shown to have been coerced The execution of those cards was not demonstrated to have occurred at a time of abnormal employment levels nor unrepresentative of Systems' employee complement, inasmuch as Miller testified that he expected to regularly employ about 10 persons although he was not absolutely certain 2 The General Counsel has adduced evidence to demonstrate that Systems recognized Local 327 quickly and with enthusiasm but has not proven that recognition was coerced, premature, or that Local 327 did not pos sess majority status Moreover, Local 29 s claimed inter est rested solely on its past representation of the termi nated National employees In view of the foregoing analysis and findings of fact, I conclude that the allegations of unfair labor practices concerning the conduct of Systems and Local 327 with respect to the Porter Building are not proven and ought to be dismissed CONCLUSIONS OF LAW 1 Respondent Systems and First Union are separate employers engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act 2 Service Employees International Union Local 29, AFL-CIO and International Brotherhood of Painters and Allied Trades of the United States and Canada Local 327, AFL-CIO are respectively labor organza tions within the meaning of Section 2(5) of the Act 2 In addition to the 10 cardsigners employed on 11 September the rec ognmon date was Baxley Hall and Ed Miller of whom it was Hall s and Miller s last day of employment Dingle commenced on 12 Septem ber Henderson T Hall and English were not hired until 15 18 and 19 September respectively of whom T Hall and English worked for only several weeks Mobley and Trowery ceased work at the Porter Building in mid October Mahone ceased on 20 October and five other original cardsigners ceased work at the Porter Building on various dates in No vember and December 1986 and one in February 1987 These cards were subsequently supplemented by new cardsigners 3 All the following employees of Respondent Systems formerly employed there by Pritchard Services, Inc constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act All custodial employees and freight elevator opera tors employed by Systems Management Inc, at the 300 Sixth Avenue Building located in Pittsburgh, Pennsylvania, excluding all office clerical employ ees, guards, professional employees and supervisors as defined in the Act 4 At all times material, Service Employees Interna tional Union, Local 29, AFL-CIO has been the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act 5 By its refusal on 16 February 1986 and thereafter to hire the employees of Pritchard Services, Inc following its succession to it in the business of providing custodial services for Respondent First Union at the 300 Sixth Avenue building because of the union affiliation and rep resentation of these employees, and to avoid an obliga tion to bargain with Service Employees International Union, Local 29, AFL-CIO, Respondent Systems Man agement, Inc violated Section 8(a)(3) and (1) of the Act 6 Respondent Systems Management, Inc is the suc cessor employer to Pritchard Services, Inc and by fail ing to recognize and bargain with Local 29 since on or about 16 February 1986 as the exclusive collective bar gaining representative of the employees in the above unit, including by changing the rates of pay wages, hours, benefits and other terms and conditions of em ployment without prior notice to and opportunity given to Local 29 to negotiate and bargain, it has violated Sec tion 8(a)(5) and (1) of the Act 7 By recognizing and executing a collective bargain ing agreement with International Brotherhood of Paint ers and Allied Trades of the United States and Canada Local 327 AFL-CIO when Service Employees Interna tional Union Local 29 AFL-CIO was the exclusive rep resentative of employees in the bargaining unit covered by the agreement and when Local 327 did not represent an uncoerced majority of those employees, Respondent Systems Management Inc violated Section 8(a)(2) and (1) of the Act 8 By its executing and maintaining the above contract with Local 327, which contains a union security clause and by the deduction of dues and initiation fees and the remitting of same to Local 327 since 16 February 1986, Respondent Systems has violated Section 8(a)(3) (2), and (1) of the Act 9 By obtaining recognition of the bargaining unit em ployees, entering into and maintaining a collective bar gaining agreement for those employees with Respondent Systems and by receipt of their dues and initiation fees remitted pursuant to that agreement as described in the foregoing paragraphs Respondent International Brother hood of Painters and Allied Trades of the United States 1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and Canada, Local 327, AFL-CIO has violated Section 8(b)(1)(A) of the Act 10 The aforesaid violations of the Act constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 11 Respondent First Union Management Inc has not violated the Act 12 Respondents Systems Management, Inc and Local 327 have not violated the Act with respect to their al leged conduct at the Porter Building or in any other manner THE REMEDY Having found that the Respondent, Systems Manage ment, Inc discriminatorily refused employment for the former employees of Pritchard Services Inc, I recom mend that it be ordered that their employment status be restored to what it would have been but for the discrimi nation against them, and that the Respondent offer them immediate and full reinstatement to their former jobs or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights or privileges previously enjoyed, discharging, if necessary, employees hired from other sources to make room for them, and make them whole for any loss of earnings that they may have suffered due to the discrimi nation practiced against them, as prescribed in F W Woolworth Co, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded a Backpay is to be based on the rate structure previously prevailing under Pritchard Services, Inc Loves Barbeque Restaurant No 62 supra, 245 NLRB at 82 fn 15, enf denied in relevant part 640 F 2d 1094 (9th Cir 1981) State Distributing Co 282 NLRB 1048 (1987) Further, I recommend that at the 300 Sixth Avenue building, Respondent Systems Management, Inc be or dered (1) to withdraw and withhold recognition from International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 327 AFL-CIO and to cease giving effect to the collective bargaining agreement which these parties have executed (2) and be cause the collective bargaining agreement contains a union security clause to jointly and severally with this Union make reimbursement of the dues paid to it with interest as prescribed above to all employees (3) to bar gain with the Service Employees International Union, Local 29, AFL-CIO concerning any terms and condi tions of employment on which they would have been re quired to bargain had the Union s lawful status been ac knowledged on 16 February 1986, the date it took over the servicing of the 300 Sixth Avenue building, (4) to cancel, on request by Local 29 changes in wages, rates of pay, hours, benefits or other terms and conditions of employment unilaterally effectuated and to make the employees whole by remitting all wages and benefits that would have been paid absent their unlawful conduct as found here from 16 February 1986 until Respondent Sys tems negotiates in good faith with the Union to agree ment or to impasse 4 I also recommend that Respondent International Brotherhoos of Painters and Allied Trades of the United States and Canada Local 327, AFL-CIO be ordered to (1) cease and desist from accepting recognition from Sys tems and executing and giving effect to collective bar gaining agreements at the 300 Sixth Avenue building, (2) cease and desist from acting as the exclusive collective bargaining representative at the 300 Sixth Avenue build mg unless and until Local 327 is certified by the Nation al Labor Relations Board as the exclusive bargaining rep resentative of any such employees in an appropriate bar gaining unit, (3) jointly and severally with Systems Man agement, Inc reimburse all unit employees at the 300 Sixth Avenue building, with interest, for all dues and ini tiation fees remitted to Local 327 since 16 February 1986 It is further recommended that Respondents be or dered to post appropriate notices Also, applying the standard for broad cease and desist orders established in Hickmott Foods 242 NLRB 1357 (1979), 1 find that the Respondents misconduct was suf ficiently egregious to demonstrate a general disregard for the employees fundamental statutory rights A broad cease and desist order is recommended See also Shortway Suburban Lines, 286 NLRB 342 fn 38 (1987) On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed5 ORDER A The Respondent Systems Management, Inc, Pitts burgh Pennsylvania its officers agents successors and assigns shall 1 Cease and desist from (a) Refusing to hire employees because of their union affiliation and to avoid an obligation to bargain with Service Employees International Union Local 29 AFL- CIO (b) Failing to recognize and bargain with Service Em ployees International Union Local 29, AFL-CIO as the exclusive collective bargaining representative of its em ployees in the following unit, including by making changes in the wages rates of pay, hours, and benefits of the employees in this unit without notice to and opportu nity given to Local 29 to negotiate and bargain All custodial employees and freight elevator opera tors employed by Systems Management, Inc, at the 300 Sixth Avenue Building located in Pittsburgh, i In accordance with the decision in New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after 1 January 1987 shall be comput ed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts ac crued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 * The remission of wages is to be applied consistently with the make whole remedy set forth above with respect to the discnminatees 5 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 SYSTEMS MANAGEMENT Pennsylvania, excluding all office clerical employ ees, guards, professional employees and supervisors as defined in the Act (c) Recognizing and executing a collective bargaining agreement with International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 327, AFL-CIO as bargaining representative for the above unit unless it is certified as the representative by the National Labor Relations Board (d) Giving effect to the collective bargaining agree ment at the 300 Sixth Avenue building signed with Local 327, dated 3 January 1986, or to any extension, supple ment, or modification of, or successor to that contract (e) In any other manner interfenng with, restraining or coercing employees in the exercise of the rights guar anteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer to the employees formerly employed by Pritchard Services, Inc, at the 300 Sixth Avenue build ing, Pittsburgh, Pennsylvania facility, full and immediate reinstatement to their former positions or, if those pose tions no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights which they have formerly enjoyed, discharging, if necessary, other employees who have been hired in their places (b) Make whole the employees formerly employed by Pritchard Services, Inc for any loss of earnings they may have suffered due to the discrimination practiced against them in the manner described in the Remedy sec tion of this Decision (c) On request, bargain with Service Employees Inter national Union Local 29, AFL-CIO as the exclusive representative of the employees in the appropriate unit concerning terms and conditions of employment and if an understanding is reached, embody the understanding in a signed agreement (d) On request of Local 29, cancel any changes from the wages rates of pay hours of employment and bene fits or other terms and conditions of employment that ex isted immediately before their takeover of the servicing of 300 Sixth Avenue building and make the employees whole by remitting all wages and benefits that would have been paid absent such changes from 16 February 1986 until it negotiates in good faith with the Union to agreement or to impasse in the manner described in the remedy section (e) Withdraw and withhold recognition from Interna tional Brotherhood of Painters and Allied Trades of the United States and Canada, Local 327, AFL-CIO as the collective bargaining representative of the employees at the 300 Sixth Avenue building, Pittsburgh, Pennsylvania, unless it becomes certified as the representative by the National Labor Relations Board, and jointly and several ly with the Union, remit all dues withheld for it to those employees who became members on or after 16 Febru ary 1986, with interest, as prescribed above in the Remedy section (f) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay roll records, social security payment records, timecards 1103 personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (g) Post at the 300 Sixth Avenue Building Pittsburgh, Pennsylvania facility, copies of the attached notice marked Appendix 6 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's authorized representa tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other maters al (h) On being furnished the same by the Regional Di rector, post the notice marked Appendix B' in the same manner as Appendix A (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply B The Respondent International Brotherhood of Painters and Allied Trades of the United States and Canada, Local 327, AFL-CIO, its officers, agents, and representatives, shall 1 Cease and desist from (a) Accepting recognition from Systems Management, Inc and executing and giving effect to the collective bargaining agreement dated 3 January 1986, for the cus todial employees and elevator operators at 300 Sixth Avenue building, Pittsburgh, Pennsylvania, or to any ex tension, modification, supplement or successor to it (b) Acting as the exclusive bargaining representative of custodial employees and elevator operators at 300 Sixth Avenue building, Pittsburgh, Pennsylvania unless and until certified as such by the National Labor Relations Board as the exclusive collective bargaining representa tive of any such employees in an appropriate unit (c) In any other manner restraining or coercing em ployees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Jointly and severally with Systems Management Inc reimburse all unit employees at the 300 Sixth Avenue Building Pittsburgh Pennsylvania with interest as prescribed above in the remedy section, for all dues and initiation fees remitted to it since 16 February 1986 (b) Post in its office and meeting halls copies of the at tached notice marked Appendix B ° Copies of Ap pendix B" to be furnished by the Regional Director for Region 6, after being signed by Respondent Local 327 s official representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 con secutive days thereafter in conspicuous places, including 6 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board ' See fn 6 above 1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD all places where notices to members are customarily posted Reasonable steps shall be taken by Respondent Local 327 and its agents to insure that such notices are not altered, defaced or covered by any material (c) Forward to the Regional Director signed copies of `Appendix B' for posting by Systems Management, Inc at its facilities in the 300 Sixth Avenue building, Pitts burgh, Pennsylvania, for 60 days in places where notices to employees are customarily posted (d) Notify the Regional Director in wasting within 20 days from the date of this Order what steps the Re spondent has taken to comply APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has of fered us to post and abide by this notice WE WILL NOT refuse to hire employees previously em ployed by Pritchard Services, Inc because of their union affiliation or to avoid an obligation to bargain with Serv ice Employees International Union, Local 29, AFL-CIO WE WILL NOT fail to recognize and bargain with this Union as the exclusive collective bargaining representa tive of the employees in the following unit, including by making changes in the wages, rates of pay, hours, and benefits or other terms and conditions of employment of the employees in this unit without giving notice to it and opportunity for negotiation and bargaining All custodial employees and freight elevator opera tors employed by Systems Management Inc at the 300 Sixth Avenue Building located in Pittsburgh Pennsylvania excluding all office clerical employ ees guards professional employees and supervisors as defined in the Act tions of employment and, if an understanding is reached, embody it in a signed contract if asked to do so WE WILL, on the request of the above Union, cancel any changes from the wages, rates of pay, hours of em ployment, and benefits or other terms and conditions of employment that existed immediately before our takeov er of servicing the 300 Sixth Avenue building and make the employees whole by remitting all wages and benefits that would have been paid absence such changes from 16 February 1986 until we negotiate in good faith with the Union to agreement or impasse WE WILL withdraw and withhold recognition from International Brotherhood of Painters and ALlied Trades of the United States and Canada Local 327, AFL-CIO as the collective bargaining representative of our em ployees at the 300 Sixth Avenue building, Pittsburgh, Pennsylvania, unless it becomes certified as the repre sentative by the National Labor Relations Board, and remit, jointly and severally with the Local 327 all dues withheld for it for those employees who became mem bers on or after 16 February 1986, with interest WE WILL offer to employees formerly employed by Pritchard Services, Inc at the 300 Sixth Avenue build mg, Pittsburgh Pennsylvania, immediate and full rein statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju dice to their seniority or any other rights or privileges previously enjoyed, discharging, if necessary, other em ployees who have been hired in their place and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest SYSTEMS MANAGEMENT, INC APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT recognize and execute a collective bar gaining agreement with International Brotherhood of Painters and Allied Trades of the United States and Canada Local 327 AFL-CIO as the collective bargain ing representative of the employees in the above unit unless it is certified as the representative by the National Labor Relations Board WE WILL NOT give effect to the collective bargaining agreement we signed with International Brotherhood of Painters and Allied Trades of the United States and Canada Local 327 AFL-CIO for the unit or to any ex tension supplement modification or successor to that contract WE WILL NOT in any other manner interfere with re strain, or coerce you in the exercise of the rights guaran teed you by Section 7 of the Act WE WILL on the request of Service Employees Inter national Union, Local 29 AFL-CIO bargain with this Union as the exclusive representative of all the employ ees in the above unit concerning their terms and condi The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT accept recognition from Systems Man agement, Inc nor execute and give effect to the collec tive bargaining agreement dated 3 January 1986 for cus todial employees and elevator operators employed by it at the 300 Sixth Avenue building, Pittsburgh, Pennsylva nia or to any extension modification, supplement or successor to it WE WILL NOT act as collective bargaining representa tives of the custodial employees and elevator operators employed by Systems Management, Inc at the 300 Sixth Avenue Building in Pittsburgh, Pennsylvania, unless and until we have been certified by the Board as such repre sentative WE WILL NOT in any other manner restrain or coerce you in the exercise of the rights guaranteed you by Sec tion 7 of the Act SYSTEMS MANAGEMENT 1105 WE WILL, jointly and severally with Systems Manage moneys unlawfully extracted from them under our con ment, Inc reimburse all the employees , former and tract with Systems Management present, employed by it at the 300 Sixth Avenue build ing, Pittsburgh, Pennsylvania, for dues and any other INTERNATIONAL BROTHERHOOD OF PAINT ERS AND ALLIED TRADES OF THE UNITED STATES AND CANADA, LOCAL 327, AFL- CIO