U S Marine Corp. And Bayhner Marine Corp.

US MARINE CORP U S Marine Corporation and Bayliner Marine Cor- poration and International Union, Allied Indus- trial Workers of America, AFL-CIO, and its af- filiated Local, Local Union 879, Allied Industri- al Workers of America Cases 30-CA-8206, 30-CA-8404, and 30-CA-8537 April 17, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 22, 1986, Administrative Law Judge George F Mclnerny issued the attached decision Respondent U S Marine Corporation filed excep- tions and a supporting brief, the General Counsel filed exceptions with a supporting brief and an an- swering brief, and the Charging Party filed excep- tions, a supporting brief, and an answering brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions only to the extent consistent with this Decision and Order We affirm the judge's findings that the Respond- ents constitute a single employer and that, as the successor to the Chrysler Corporation in its Hart- ford, Wisconsin outboard motor plant, they violat- ed Section 8(a)(5) and (1) of the Act by refusing to recognize the Union, by refusing to provide infor mation to the Union, by bargaining in bad faith with the Union, by unilaterally implementing changes in terms and conditions of employment, by bargaining individually with employees, and by es- tablishing and bargaining with the "Safety and Progress Committee," an employer-dominated labor organization For the reasons set forth below, however, we reverse the judge and find that the Respondents' failure to rehire 34 former Chrysler employees violated Section 8(a)(3) and (1) of the Act We also have decided to modify the judge's recommended remedy in certain respects as ex- plained below As set forth more fully in the judge's decision, the Respondents purchased the facility at issue from Chrysler in late 1983 and began operations on January 23, 1984 James Hoag, who was an officer ' Respondent U S Marine Corporation has excepted to some of the judge s credibility findings The Board s established policy is not to over rule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are in correct Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 669 of both Respondents, was put in charge of running the new operation In a December 8, 1983 letter, Hoag told Chrysler's employees that Respondent Bayliner Corporation had purchased Chrysler's op- eration, that Bayliner was organizing an affiliated company called U S Marine, and that all Chrysler employees were encouraged to apply for work with US Marine At a December 13, 1983 meet ing, Hoag advised three officials of the Union that Bayliner did not intend to recognize the Union, and that Bayliner would not abide by the existing collective-bargaining agreement between Chrysler and the Union Hoag also stated at this meeting that he was not interested in having a union repre- sent the employees, and that he was too busy to deal with the Union at that time In addition, in late December 1983, Bayliner Chairman Edson told Chrysler Counsel Richie that the Respondents did not have any intention of recognizing the Union or negotiating with it and that the Respondents in tended to hire less than 50 percent of its work force from among former Chrysler employees When Chrysler ceased operations at the facility on January 13, 1984, it employed 262 production and maintenance employees represented by the Union All these employees were terminated at that time, and were notified that if they wished to be considered for employment by U S Marine, they should file applications with the Wisconsin Job Service Hoag asked the Job Service to send all former Chrysler employees who filed applications to U S Marine for interviews without the prelimi- nary screening required of other applicants Hoag interviewed and screened applicants, and made all the hiring decisions When the plant reopened on January 23, 1984, Hoag had hired 219 employees, all of whom were former Chrysler employees As of January 30, the last day on which any former Chrysler employees were hired, U S Marine em- ployed 223 former Chrysler employees out of a total employee complement of 261 In the period from January 23 to August 31, 1984, U S Marine's work force ranged from 219 to 323 production and maintenance employees, stabilizing between April and August at 312 to 323 employees During the January through August period, the number of former Chrysler employees varied from 223 to 218 Of 258 former Chrysler employees who applied for employment with U S Marine, 34 were not hired Throughout the litigation in this case, which in- cludes a Federal district court injunction requiring the Respondents to bargain with the Union ob- tained by the General Counsel pursuant to Section 100) of the Act, the Respondents have contended that they were not required to bargain with the Union in January 1984 because they had not yet 293 NLRB No 81 670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hired a "full complement" of employees, and had projected that they would reach that complement in June 1984 and that the former Chrysler employ ees would not then be in the majority As the basis for this contention, the Respondents have relied on Hoag's estimate that U S Marine's full complement would be 460 employees, which it would reach in June, and that, therefore, the 223 former Chrysler employees would be less than one-half the work force For reasons fully supported by the record, the judge found that this 460 figure was false and mis leading, and had been developed by Hoag shortly after January 31 to furnish a mathematical basis for a defense to the Union's bargaining claim Instead, the judge determined that the original manpower projection of 396 employees for June, which had been developed by U S Marine's accounting de- partment on January 20, was a valid estimate of the Company's full-complement figure In fact, as men- tioned above, U S Marine's work force never num bered more than the 323 figure attained on August 31 Those 323 employees included 218 former Chrysler employees Having found that Hoag false- ly manipulated projected work force figures pre pared by U S Marine's accounting department in order to justify refusing to bargain with the Union, the judge concluded that the former Chrysler em- ployees constituted a majority of U S Marine's work force when the plant reopened on January 23, 1984, through the period covered by the hear- ing, i e , to August 1984 Accordingly, the judge concluded that U S Marine was a successor to Chrysler within the meaning of NLRB v Burns Se- curity Services, 406 U S 272 (1972), and that the Respondents violated Section 8(a)(5) and (1) by re- fusing, since January 25, 1984, to recognize the Union We affirm those conclusions Despite finding that Hoag fabricated the full em- ployee complement estimates in order to avoid bar- gaining, the judge refused to find that the failure to rehire 34 former Chrysler employees was part of this unlawful scheme Contrary to the judge, we find that the Respondents unlawfully failed to hire the 34 employees in order to keep the number of former Chrysler employees below 50 percent of the 460 figure that purportedly represented the full complement of employees to be attained in June, and on which the Respondents based their refusal to recognize the Union The judge reasoned that once he had found that the manpower projections computed by Hoag were false and designed to deceive the Board and the court on a theory that full employment at the 460 level would not be attained until June, it would be inherently contradictory for him also to find that Hoag viewed the 460 figure as a "real, valid goal" and that continued hiring of former Chrysler em- ployees would endanger a "real, valid non-union majority " Thus, the judge found that the General Counsel had failed to establish a prima facie case that the failure to rehire the additional former Chrysler employees violated Section 8(a)(3) and (1) On the contrary, we find that the General Coun- sel has established a strong prima facie case that the failure to rehire the 34 employees was discn minatorily motivated, and that the Respondents have not proved that the 34 would not have been hired even without the Respondents' desire to avoid bargaining with the Union The flaw in the judge's reasoning is his premise that Hoag would have to view the 460 figure as a valid one in order to need to restrict the hiring of former Chrysler employees to under one-half of that figure This premise ignores the fundamental fact that the Re- spondents' central concern was to avoid a bargain- ing obligation by means of reliance on a false full- complement projection Once Hoag decided that 460 would be the false projection, it became imper- ative that he hire fewer than 231 former Chrysler employees, or the 460 figure would become mean- ingless as a defense to the Union's recognitional claim Thus, the sham inflation of the full comple- ment projection and the decision to stop rehiring former Chrysler employees once their number had reached 223 are complementary aspects of the same scheme sought to be carried out by US Marine A new owner, like the Respondents, is not obli- gated to hire any of the predecessor's employees, but may not refuse to hire the predecessor's em- ployees solely because they were represented by a union or to avoid having to recognize the union 2 The Board has held that the following factors are among those that establish that a new owner has violated Section 8(a)(3) in refusing to hire employ- ees of the predecessor substantial evidence of union animus, lack of a convincing rationale for re- fusal to hire the predecessor's employees, inconsist- ent hiring practices or overt acts or conduct evi- dencing a discriminatory motive, and evidence sup- porting a reasonable inference that the new owner conducted its staffing in a manner precluding the predecessor's employees from being hired as a ma- jority of the new owner's overall work force to avoid the Board's successorship doctrine 3 We find that all those factors are present here 2 Burns supra Howard Johnson s v Detroit Local Joint Executive Board 417 U S 249 (1974) 9 Houston Distribution Service 227 NLRB 960 (1977) Lemay Caring Centers 280 NLRB 60 (1986) enfd mem 815 F 2d 711 (8th Cir 1987) US MARINE CORP The record clearly establishes the Respondents' animus and discriminatory intent, which appeared even before the Respondents assumed the Chrysler operations and continued through the bargaining that followed as a result of the district court's in junction The statements of the Respondents' offi cials, Hoag and Edson, mentioned above, that the Respondents intended to hire less than one half the former Chrysler employee complement were made in conjunction with these officials' statements that the Respondents would not recognize the Union, and before the Respondents had considered the qualifications of any of the former Chrysler em ployees Further, the Respondents' animus is dem- onstrated by the numerous 8(a)(5) violations that we have found, and U S Marine's falsification of the employment projections in order to evade its bargaining obligation In addition, the Respondents have advanced no legitimate reasons for the refusal to hire the 34 former Chrysler employees The record shows that all the employees who were not hired were good employees, had exemplary work records, and were versatile and skilled in various jobs in the plant 4 Accordingly, the judge found that the skills, abili- ties, and versatility and other work-related charac- teristics of the 34 employees were comparable to those 223 former Chrysler employees who were hired by U S Marine Moreover, U S Marine has failed to prove its assertion that the employees who were not hired displayed employment histories, health, seniority, or allergenic characteristics that were substantially different from those of the em- ployees who were hired In this regard, the judge found that "[t]here is no substantive evidence of why one person was hired and one was not hired " Although U S Marine hired some 100 additional employees after January 30, 1984, it never contact- ed any of the other 34 former Chrysler employees who were comparable in qualifications to those former Chrysler employees who were hired before January 30 The judge's conclusion that, because Hoag knew that the 460 figure was false and invalid, he would have no reason to keep the number of former Chrysler employees under 230, simply does not stand up The end sought to be achieved by the false "full complement" figure would be frustrated if the former Chrysler employees constituted more than one-half that figure Hoag was solely responsi- ble both for creating the false employment-projec tion figure and for hiring It is no coincidence that about the same time that Hoag conceived the 460 figure, he stopped hiring former Chrysler employ- 4 In addition these employees had been employed by Chrysler for pe nods ranging from 10 to 31 years 671 ees Only one Chrysler employee was hired after the Union requested recognition on January 25 The judge's reasoning mistakenly assumes that Hoag would proffer the 460 figure as a defense to recognition, and then not take this figure into ac count in making his hiring decisions In sum, we find that Hoag's fabrication of the 460 employment-projection figure made it impera tive that U S Marine hire no more than 230 Chrys- ler employees, and that the failure to hire the 34 employees at issue here was a necessary and inte- gral part of the Respondents' attempt to avoid an obligation to recognize and bargain with the Union Accordingly, we find that the Respondents violated Section 8(a)(3) and (1) by refusing to hire the additional Chrysler employees 5 As mentioned above, the judge found that the Respondents unlawfully failed to recognize the Union on January 25, 1984, subsequently bargained in bad faith with the Union, and unlawfully made a number of unilateral changes in wages, hours, and terms and conditions of employment To remedy these violations, the judge ordered the Respondents to bargain in good faith with the Union, to cease and desist from making unilateral changes, and to bargain with the Union over all the changes that the Respondents have made since it began oper- ations on January 23, 1984 The judge, however, left to the compliance stage the question of further unilateral changes in wages, hours, and working conditions The General Counsel and the Charging Party except to the judge's failure to direct the Respond- ents to rescind all adverse unilateral changes and to restore the status quo ante with respect to wages, hours, and other terms and conditions of employ ment We find merit to this exception, and shall order the Respondents to rescind all detrimental unilateral changes occurring on and after January 23, 1984,6 and to reinstitute the terms and condi- tions of employment that were in effect when Chrysler closed its operations at the facility on Jan- uary 13, 1984' Under Burns, supra, a successor employer is ordinarily free to set initial employ- ment terms, without preliminary bargaining with the incumbent union When, however, "it is per- fectly clear that the new employer plans to retain all of the employees in the unit," the successor must consult the union before altering the terms s Hubacher Cadillac 267 NLRB 1062 (1983) enfd 760 F 2d 275 (9th Cir 1985) State Distributing Co 282 NLRB 1048 (1987) B Including all adverse unilateral changes contained in the Respond ents January 21 1985 implementation of their final bargaining offer Nothing in our Order is to be construed as requiring rescission of any wage increase or other benefits that previously have been granted the unit employees 1 American Press 280 NLRB 937 (1986) State Distributing Co supra 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and conditions of employment 8 We have found that the Respondents unlawfully discriminated against 34 of the predecessor's former employees by refusing to hire them Accordingly, we con- clude that absent their unlawful purpose, the Re- spondents would have retained substantially all the predecessor's employees, and therefore the Re- spondents were not entitled to set initial terms of employment without first consulting with the Union 9 Requiring the Respondents to restore the prede- cessor's terms and conditions of employment does not violate any principles of due process because this is strictly a remedial matter that does not have to be specifically alleged 10 The Love's Barbeque remedy that we order here does not require a spe- cific complaint allegation that the Respondents made unlawful unilateral changes when they began their operations Nor must this remedy rest on a separate finding that the Respondents committed a separate unfair labor practice by unilaterally chang ing employment terms The illegality of such changes is subsumed in the broader 8(a)(5) and (3) allegations and violations involved in this case As noted above, an employer-like the Respondents- that unlawfully discriminates in its hiring in order to evade its obligations as a successor does not have the Burns right to set initial terms of employ ment without first consulting with the Union The Respondents forfeited any right they may have had as a successor to impose initial terms when they embarked on their deliberate scheme to avoid bar gaining with the Union by their discriminatory hiring practices Here, we are simply restoring as nearly as possi- ble the situation that would have prevailed but for the Respondents' unfair labor practices We rely "on the well-established principle that, in cases in- volving discriminatory conduct, the restoration of the status quo ante is a necessary remedy as it is the Board's policy that the wrongdoer, rather than the innocent victim, should bear the hardships of the unlawful action" (citations omitted), Mash kin Freight Lines, 272 NLRB 427, 428 (1984) Failing to return to the status quo ante in this case would encourage the kind of subterfuge and falsification 8 Burns supra at 294-295 9 Potters Drug Enterprises 233 NLRB 15 (1977) enfd mem 99 LRRM 3327 (9th Cir 1978) Loves Barbeque Restaurant 245 NLRB 78 (1979) enfd in relevant part sub nom Kaltman Y NLRB 640 F 2d 1094 (9th Cir 1981) Although the Kaltman court agreed that an employer who de hberately avoids successorship through discriminatory hiring violates Sec 8(a)(5) through its unilateral setting of initial terms the court dis agreed with the theory of the Boards monetary remedy 640 F 2d at 1102-1103 The Board has explained the basis for the Loves Barbeque remedy in State Distributing Co supra and an order containing that remedy was enforced in Shortway Suburban Lines 286 NLRB 323 fn 36 (1987) enfd mem per curtain 862 F 2d 309 (3d Cir 1988) 10 See e g NC Coastal Motor Lines 219 NLRB 1009 (1975) in which the Respondents engaged As the Board stated in a prior case involving a successor that un- lawfully refused to hire a number of the predeces sor's employees in order to avoid bargaining, "A remedy that allowed to stand the reduced terms and conditions of employment that the Respondent imposed unilaterally would quite possibly leave victims uncompensated and it would confer Burns rights on an employer that has not conduct ed itself like a lawful Burns successor because it has unlawfully blocked the process by which the obli- gations and rights of such a successor are in curred " State Distributing, supra at 1049 See also Shortway Suburban Lines, supra, American Press, supra, American Stevedoring Co, 280 NLRB 756 (1986) In view of this precedent and the com- plaint's 8(a)(3) and (5) allegations, we do not agree with our colleague that the Respondents reason- ably could believe that the General Counsel was not challenging their right to set initial terms and conditions of employment Contrary to our col- league's suggestion, this case did not simply in- volve "a mere successorship allegation " The Re- spondents had ample notice of the General Court sel's intertwined 8(a)(3) and (5) allegations, and therefore were on notice that the Board might apply an appropriate remedy in its power should the Board find the violations alleged 11 Further, our dissenting colleague has failed to show how the Respondents have been prejudiced by the General Counsel's failure to allege specifi cally that the Respondents were not entitled to es- tablish initial terms and conditions of employment There is nothing indicating that the Respondents would have litigated the case differently, or would have presented any different evidence had such a specific allegation been made On the contrary, it is clear that the Respondents' defense to the com plaint allegations would have been the same, based as it was on the Respondents' false production and manpower projections, and their discriminatory staffing scheme 12 Contrary to our dissenting colleague's sugges- tion, what the Respondents may have stated con cerning employment terms during their preemploy- ment interviews with some of the predecessor's employees is immaterial in the circumstances here, 11 See NLRB v Marin Operating Inc 822 F 2d 890 (9th Cir 1987) enfg 279 NLRB 481 (1986) 12 In this regard we view as a distinction without a difference our dis tenting colleagues suggestion that this case is distinguishable from prior cases in which a Loves Barbeque remedy has been given because here the refusal to hire did not involve the entire unit of the predecessors employ ees That the Respondents discriminated against only a portion of the unit does not absolve the Respondents from the consequences of that discnmi nation i e the forfeiture of the right to set initial terms which is enjoyed by those successor employers who lawfully choose to hire fewer than all the predecessors employees US MARINE CORP in which the Respondents were not entitled to set initial terms because of their discriminatory hiring practices Thus, our dissenting colleague's reliance on Starco Farmers Market, 237 NLRB 373 (1978), is inapposite because the issue in Starco was when the successor employer was entitled to set initial employment terms, while the issue here is whether the Respondents were entitled to set those terms In addition, for the reasons set forth in M F A Milling Co, 170 NLRB 1079 (1968), enfd sub nom Laborers Local 676, 463 F 2d 953 (D C Cir 1972), we will order the Respondents to reimburse the employee-members of the Union's negotiating com mittee for any wages lost while attending past ne- gotiating sessions, with interest 13 ORDER 14 The National Labor Relations Board orders that the Respondents, U S Marine Corporation and Bayliner Marine Corporation, Hartford, Wisconsin, their officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to recognize and bargain in good faith with International Union, Allied Industrial Workers of America, AFL-CIO, and its affiliated Local, Local Union 879, Allied Industrial Workers of America, as the exclusive collective bargaining representative of their employees in the following appropriate unit All full time production and maintenance em- ployees at the Hartford, Wisconsin plant, except executives, office and clerical workers, salesmen, shop superintendents, supervisors, engineers, nurses, first-aid attendants, guards, temporary summer/seasonal employees, any employee in training for the foregoing, and all other employees having the right to hire and discharge (b) Refusing to give information to the Union that is reasonably related to the Union's function as collective-bargaining representative and in further- ance of the Union's obligation to process griev- ances for employees (c) Unilaterally changing wages, hours, and other conditions of employment without bargaining about these changes with the Union and bargaining with individual employees concerning such changes 13 See also K Mart Corp 242 NLRB 855 (1979) Preterm Inc 240 NLRB 654 (1979) 14 The Judges recommended Order includes a visitatonal clause au thonzing the Board for compliance purposes to obtain discovery from the Respondents under the Federal Rules of Civil Procedure under the supervision of the United States court of appeals enforcing the Order We find no need for such a remedial provision here See Cherokee Marine Terminal 287 NLRB 1080 (1988) 673 (d) Engaging in collective bargaining, soliciting and discussing employee grievances with, and meeting with the safety and progress committee, and paying employees for serving on that commit tee (e) Refusing to hire unit members of their prede- cessor, or otherwise discriminating against employ- ees to avoid having to recognize and bargain with the Union (f) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Recognize and, on request, bargain collec- tively with the Union as the exclusive representa- tive of the Respondents' employees in the above unit, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed document (b) Furnish the Union with any and all informa- tion requested by it and reasonably related to its function as collective-bargaining representative (c) On request of the Union, rescind any depar- tures from terms and conditions of employment that existed immediately before the Respondents' takeover from Chrysler Corporation of the Hart- ford, Wisconsin operations, retroactively restoring preexisting terms and conditions of employment, including wage rates and benefit plans, and make the employees whole by remitting all wages and benefits that would have been paid absent such uni- lateral changes from January 23, 1984, until they negotiate in good faith with the Union to agree- ment or to impasse The remission of wages shall be computed as in Ogle Protection Service, 182 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir 1971), plus interest as prescribed in New Horizons for the Retarded 15 The Respondents shall remit all payments they owe to the employee benefit funds and reimburse their employees in the manner set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn 2 (1980), enfd 661 F 2d 940 (9th Cir 1981), for any expenses resulting from the Respondents' fail- ure to make these payments Any amounts that the Respondents must pay into the benefit funds shall be determined in the manner set forth in Merryweather Optical Co, 240 NLRB 1213 (1979) 15 283 NLRB 1173 (1987) Interest on and after January 1 1987 shall be computed 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 accrued prior to January 1 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 (1977) 674 DECISIONS OF THE NATIONAL I ABOR RELATIONS BOARD (d) Reimburse employee-members of the Union's negotiating committee for any wages they lost while attending past negotiating sessions , with in- terest to be computed in accordance with New Ho- rizons for the Retarded, supra (e) Offer to unit employees of the predecessor, who would have been employed but for the illegal discrimination against them, including those listed below, immediate and full employment , without prejudice to their seniority and other rights and privileges previously enjoyed, discharging if neces sary any employees hired in their place Gerald A Riege Brian F Kuehl Edward Becker Velora Shilts Charles Deis Ervin C Margelowsky Janet A McFadden Dons Koepke Alvah P Ostrander Roy C Maher Victoria S Krueger Jean D Whitish Merlin V Nelson L 0 Schroeder Judith A Wagner Duane A Whitish Harvey W Grulke Michael S Beckwith Frank Schaeffer Geraldine A Prusik Eleanor C Heimermann Russell F Thompson Barbara A Hopfensperger Richard Wingelman Barbara Constantineau Diane G Thom Delons M Bunker Mary A Bilgreen Timothy Noble Otto Quandt Carol M Schumacher Rochelle M Schmidt Warren K Moritz James Schwickert (f) Make the above-named employees whole for any loss of earnings and benefits they may have suffered by reason of the Respondents' unlawful re- fusal to employ them Backpay shall be computed as in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as prescribed in New Horizons for the Retarded, supra (g) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (h) Post at their Hartford, Wisconsin plant copies of the attached notice marked "Appendix 1116 Copies of the notice, on forms provided by the Re- gional Director for Region 30, after being signed by the Respondents' authorized representative, shall be posted by the Respondents immediately upon receipt and maintained for 60 consecutive 16 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 days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply MEMBER CRACRAFT, dissenting in part Contrary to my colleagues, I would not require the Respondents to reinstate the terms and condi tions of employment that were in effect when the predecessor ceased doing business My disagree ment with my colleagues is based solely on due- process grounds The amended consolidated com- plaint did not allege that the Respondents violated the Act in setting their initial terms and conditions of employment and this issue was not fully litigat- ed I am unwilling to remedy unilateral changes that were not alleged nor litigated as unlawful I do not disagree with my colleagues that the Lobe's Barbequei remedy is often an appropriate remedy in cases involving refusals to hire in successorship situations See, e g, State Distributing Co, 282 NLRB 1048 (1987), Shortway Suburban Lines, 286 NLRB 323 (1987), American Press, 280 NLRB 937 (1986), enfd in relevant part 833 F 2d 621 (6th Cir 1987), relied on by my colleagues I differ with my colleagues only in that I would not apply that remedy in cases such as this one in which the Respondents were not put on notice that the setting of initial terms and conditions of em- ployment is alleged to be unlawful 2 i Loves Barbeque Restaurant 245 NLRB 78 (1979) enf denied in rele vant part sub nom Kailman v NLRB 640 F 2d 1094 (9th Cir 1981) 2 In all the refusal to hire cases relied on by my colleagues except one the respondent was put on notice that its altering of employment terms was alleged to be unlawful It is unclear in American Stevedoring Co 280 NLRB 756 (1986) whether there was a separate 8(a)(5) allegation involv mg the setting of initial terms and conditions of employment or whether the respondent was otherwise put on notice that such unilateral changes were in issue To the extent that that case can be read to allow a remedy for the failure to bargain over initial employment terms absent a specific complaint allegat on or other evidence that the respondent was put on notice that its failure to do so is being challenged I believe it was wrongly decided and would not rely on it See the dicussion of the ap plicable law infra N C Coastal Motor Lines 219 NLRB 1009 (1975) enfd 542 F 2d 637 (4th Cir 1976) cited by the majority does not involve a refusal to hire an d does not even involve a successorship allegation Therefore that case does not directly support the majority s proposition that requiring a suc cessor to adhere to the predecessor s terms and conditions of employment is strictly a remedial matter that does not have to be specifically a] leged Far from being strictly a remedial matter my colleagues deci sion constitutes an attempt under the guise of remedy to find the Re spondents guilty of an unalleged and unlitigated unfair labor practice and to impose a potentially huge financial liability See generally Spruce Up Corp 209 NLRB 194 (1974) enfd on other grounds 529 F 2d 516 (4th Cir 1975) US MARINE CORP In NLRB v Blake Construction Co , 663 F 2d 272, 279 (D C Cir 1981), the court described the "applicable law" as "clearcut " The court said "The Board may not make findings or order reme dies on violations not charged in the General Counsel's complaint or litigated in the subsequent hearing " Here, not only is there no unilateral change allegation regarding the Respondents' set- ting their initial terms of employment, but the 8(a)(5) allegations that were alleged in the amended consolidated complaint would reasonably have led the Respondents to believe that their right as a suc- cessor to set initial terms and conditions of employ- ment was not being challenged as unlawful 3 Fur- thermore, the General Counsel's opening statement did not put the Respondents on notice that their setting of initial terms of employment was alleged to be unlawful,4 and my colleagues do not point to any other portions of the transcript of the hearing that would establish such notice Rather, my colleagues' position is that an unlaw- ful unilateral change allegation "is subsumed in the broader 8(a)(5) and 8(a)(3) allegations and viola- tions involved in this case " I disagree With regard to the general refusal-to-bargain allegation, it must be remembered that the Burns5 successor who cannot set its own terms is the exception, not the general rule Thus, in my view, notice about a uni- lateral change allegation cannot be implied from a mere successorship allegation Nor are the 8(a)(3) allegations a substitute for such notice 6 An 8(a)(5) unilateral change violation does not inevitably follow every time an alleged successor commits any refusal to hire violation This is particularly 3 The complaint does not allege an 8(a)(5) unilateral change violation in January 1984 when the Respondents allegedly became a successor It does however allege that certain specific unilateral changes in Novem ber and December 1984 and January 1985 were unlawful The complaint further alleges that the Respondents violated Sec 8(a)(5) by a general re fusal to bargain since January 1984 a refusal to provide information since that time surface bargaining since May 1984 creation of the safety and progress committee in January 1984 and direct dealing since November 1984 From these specific complaint allegations it is reasonable for the Respondents to conclude that the General Counsel was not contesting their right to set their initial terms and conditions of employment in Janu ary 1984 4 On the contrary the General Counsels opening statement alludes to the Respondents use of their hiring interviews to establish new terms and conditions of employment before they brought the employees back on board The General Counsel did not however state that this was alleged to be unlawful Indeed on the basis of the facts as stated by the General Counsel it would appear that the setting of initial terms by Respondents was entirely lawful See the summary of the case law in Starco Farmers Market 237 NLRB 373 (1978) (in which the new employer s offer of dif ferent terms and conditions of employment is prior to or simultaneous with the offer of employment to the predecessors employees the Board finds no duty to bargain over initial employment terms) 5 NLRB v Burns Security Services 406 U S 272 294-295 (1972) 9 NLRB v Mann Operating 822 F 2d 890 (9th Cir 1987) enfg 279 NLRB 481 (1986) cited by the majority is a successorship case that did not involve any refusal to hire allegations Therefore it does not directly support the majority s claim that the 8 (a)(3) and (5) allegations of the complaint provided the Respondents with sufficient notice 675 true in a case such as this one in which the refusal to hire did not involve the entire unit 7 Under the "applicable law," Blake Construction, supra, the Re- spondents remain entitled to notice of precisely what violations they allegedly committed The court's conclusion in Blake Construction is equally applicable here "Elemental procedural due process prevents [the] granting of reme- dies that go beyond the scope of the complaint and are directed toward violations of the Act not no- ticed or actually tried before the ALJ or the Board "8 Accordingly, absent a complaint allegation or other evidence that the Respondents were put on notice that the January 1984 setting of initial terms and conditions of employment was alleged to be unlawful, I would not require the Respondents to reinstate the predecessor's terms and conditions of employment as a remedy for the violations found in this case 9 r I note that all the cases relied on by my colleagues involve instances in which the refusal to hire violations extended to all or virtually all the available unit positions Here there is no such link between the refusal to hire violations and the Respondents status as successor In this case quite apart from the 34 refusal to hire violations they committed the Re spondents became a successor as a result of their hiring more than 200 employees of the predecessor Whether the Respondents unlawfully set initial employment terms depends on what was said in the employment interviews with those employees a matter not pursued in the complaint or litigated at the hearing If the Respondents had been put on notice that the General Counsel was challenging their right as successor to set initial terms the Respondents could have defended by introducing evidence showing that in the interviews that resulted in the hiring of more than 200 employees of the predecessor it clearly announce[d] its intent to alter terms and conditions prior to offering employment to incumbent employees Starco Farmers Market supra see fn 4 supra a 663 F 2d at 283 In all other respects I agree with my colleagues decision except that in adopting the judge s finding that the Respondents bargained in bad faith I would not rely on the Respondents insistence on having ne gotiations away from the plant and outside work hours their position that any contract negotiated might be temporary based on the outcome of court proceedings and their rejection of mediation APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice 676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT refuse to recognize and bargain in good faith with International Union, Allied Indus- trial Workers of Amenca, AFL-CIO, and its affili- ated Local, Local Union 879, Allied Industrial Workers of Amenca, as the exclusive collective bargaining representative of our employees in the following appropriate unit All full time production and maintenance em- ployees of the Hartford, Wisconsin plant, except executives, office and clerical workers, salesmen, shop superintendents, supervisors, engineers, nurses, first-aid attendants, guards, temporary summer/seasonal employees, any employee in training for the foregoing and all other employees having the right to hire and discharge WE WILL NOT refuse to give information to the Union that is reasonably related to the Union's function as collective-bargaining representative and in furtherance of the Union's obligation to process grievances for employees WE WILL NOT unilaterally change wages , hours, and other conditions of employment without bar- gaining about these changes with the Union and WE WILL NOT bargain with individual employees concerning such changes WE WILL NOT engage in collective bargaining, soliciting and discussing employee grievances with, and meeting with the safety and progress commit tee, and WE WILL NOT pay employees for serving on that committee WE WILL NOT refuse to hire unit members of our predecessor, or otherwise discriminate against em- ployees, to avoid having to recognize and bargain with the Union WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL recognize and, on request , bargain col- lectively with the Union as the exclusive represent- ative of the unit employees with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an agreement is reached, embody it in a signed document WE WILL furnish the Union with any and all in- formation requested by it and reasonably related to its function as collective-bargaining representative WE WILL, on request of the Union, rescind any from Chrysler Corporation of the Hartford, Wis- consin operations, and WE WILL retroactively re- store preexisting terms and conditions of employ ment, including wage rates and benefit plans, and WE WILL make employees whole by remitting all wages and benefits that would have been paid absent such unilateral changes from January 23, 1984, until we negotiate in good faith with the Union to agreement or to impasse Provided, how- ever, that nothing herein shall be construed as re- quiring rescission of any wage increase or other benefits that previously have been granted to unit employees WE WILL reimburse employee-members of the Union's negotiating committee for any wages they lost while attending past negotiating sessions, with interest WE WILL offer to unit employees of the prede cessor, who would have been employed but for our unlawful discrimination against them, including those listed below, immediate and full employment, without prejudice to their seniority and other rights and privileges previously enjoyed, discharg- ing if necessary any employees hired in their place Gerald A Riege Brian F Kuehl Edward Becker Velora Shilts Charles Deis Ervin C Margelowsky Janet A McFadden Doris Koepke Alvah P Ostrander Roy C Maher Victoria S Krueger Jean D Whitish Merlin V Nelson L 0 Schroeder Judith A Wagner Duane A Whitish Harvey W Grulke Michael S Beckwith Frank Schaeffer Geraldine A Prusik Eleanor C Heimermann Russell F Thompson Barbara A Hopfensperger Richard Wingelman Barbara Constantineau Diane G Thom Deloris M Bunker Mary A Bilgreen Timothy Noble Otto Quandt Carol M Schumacher Rochelle M Schmidt Warren K Moritz James Schwickert WE WILL make the above named employees whole for any loss of earnings and benefits they may have suffered by reason of our unlawful refus- al to employ them, with interest U S MARINE CORPORATION AND BAYLINER MARINE CORPORATION departures from terms and conditions of employ- Paul Bosanac Esq and Katherine Colgan Esq, for the ment that existed immediately before our takeover General Counsel US MARINE CORP Fred G Grass Esq and Carolyn Gnaedinger Esq (Quarles & Brady) of Milwaukee Wisconsin, for the Respondent U S Marine Corporation Warren Ogden Esq (Williams Lanza Kastner & Gibbs), of Bellevue, Washington, for the Respondent Bayliner Marine Corporation Kenneth R Loebel Esq (Habush Habush & Davis), of Milwaukee, Wisconsin, for the Charging Unions Peter Stone Esq (Whyte & Hirschboeck), of Milwaukee, Wisconsin, appearing specially to represent Chrysler Corporation DECISION STATEMENT OF THE CASE GEORGE F MCINERNY, Administrative Law Judge This proceeding is based on charges filed on 2 February 1984 in Case 30-CA-8206 by International Union, Allied Industrial Workers of America, AFL-CIO, and its affili ated Local Local Union 879, Allied Industrial Workers of America (the International and Local 879 and collec tively as the Union) This charge was amended by the Union on 27 February 1984, and on 28 February 1984 the Regional Director for Region 30 of the National Labor Relations Board (the Board) issued a complaint al leging that U S Marine Corporation , a wholly owned subsidiary of Bayliner Marine Corporation (U S Marine, and Baylmer, or collectively as Respondents) had violat ed Section 8(a)(1) and (5) of the National Labor Rela tions Act (the Act) On 2 March 1984, an answer was filed on behalf of Respondent U S Marine, in which it was alleged that U S Marine is a Wisconsin corporation , the stock of which is owned by the same individuals who own the stock of Bayliner , and otherwise denying the commission of any unfair labor practices On 2 July 1984, Local 879 filed the charge in Case 30- CA-8404 and on 1 October, it filed the charge in Case 30-CA-8537 A complaint in Case 30-CA-8537 issued on 10 December 1984 naming the Respondent as U S Marine Corporation an affiliate of Bayliner Marine Cor poratfon " The answer here denied the commission of any unfair labor practices On 19 June 1985 another com plaint issued, this time in Case 30-CA-8404, again naming U S Marine as an affiliate of Bayliner and on 19 June all three cases 30-CA-8206, 30-CA-8404 and 30-CA-8537 were ordered to be consolidated by the Acting Regional Director for Region 30 An answer was filed in Case 30-CA-8404, again denying the commission of any unfair labor practices Finally on 21 August 1985 the Acting Regional Di rector issued an amended consolidated complaint com bining all the allegations in the prior complaints , and this time alleging that U S Marine and Bayliner are Single and/or joint Employers To this, U S Marine and Bay liner, each represented by different counsel, filed sepa rate answers, denying that they are single employers or joint employers, and denying the commission of any unfair labor practices Pursuant to notice contained in the amended consoli dated complaint a hearing was held before me in Mil Waukee, Wisconsin, on 16 September, 14-18 October, 21 677 October, and 18-19 November 1985, at which all parties were represented by counsel and had the opportunity to present testimony and documentary evidence, to examine and cross examine witnesses , and to argue orally Fol lowing the close of the hearing, all parties submitted briefs, which have been carefully considered 1 Based on the entire record, including my observations of the witnesses, and their demeanor, I make the follow ing FINDINGS OF FACT I JURISDICTION A Bayllner In its answer to the complaint, Bayliner denied that it is a Delaware corporation, that it had an office and place of business in Hartford, Wisconsin, and that it is engaged in the manufacture and sale of powerboats The General Counsel introduced a certified copy of a certificate of in corporation of Bayliner Marine Corporation showing that the company was incorporated as a Delaware cor poration on 20 November 1972 In the absence of con flicting evidence, I find that Bayliner is a Delaware cor poration The evidence shows that there is no question that Bayliner is engaged in the manufacture and sale of powerboats The denial of the portion of the complaint which alleged this fact apparently was an oversight on the part of Bayliner s counsel The question of whether Bayliner has or had a place of business in Hartford will be discussed, below in section III, A The answer admits and I find that Bayliner is an em ployer engaged in commerce within the meaning of Sec tion 2(2), (6), and (7) of the Act i Under date of 22 May 1986 the Charging Unions filed a motion for leave to reopen and supplement the record The General Counsel sup ports this motion and the Respondents oppose The reasons advanced by counsel for the Charging Unions as to why I should reopen the instant hearing arose during a hearing before the Honorable Terence T Evans United States District Judge for the Eastern District of Wisconsin The judge held a hearing in connection with a petition by the Board to ad judge Respondents in contempt of the court s 10 May 1984 injunction and Order to bargain collectively with the Unions The evidence sought to be introduced here includes minutes of several Safety and Progress Committee meetings and some exchanges of correspondence between the Union and Respondents early in 1986 These documents allegedly shed additional light on the Respondents motions as well as show additional violations of Sec 8(a)(1) and (5) of the Act The General Counsel agrees with the substance of this motion but fails to move to amend the complaint I have reviewed the motion the support of it by the General Counsel and the opposition by counsel for U S Marine The minutes of the Safety and Progress Committee are like other minutes of that committee I have hitherto refused to admit into evidence cumulative and unnecessary to this decision Further the allegations of additional labor practices are re petitive and redundant merely constituting continuations of conduct al ready alleged in the original complaint as violations of Sec 8 (a)(1) and (5) In any event the remedy which I could fashion for these alleged ad ditional violations is identical with that that I will recommend here Ft nally my reading of Judge Evans decisions in the original case and in this contempt action indicates no inconsistency but rather mutual support and agreement That court s remedies are somewhat different than those I am empowered to recommend but I think they will supplement each other without conflict or duplication The motion is accordingly denied 678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B US Marine The answer filed by U S Marine admits, and I find, that U S Marine is an employer engaged in commerce within the meaning of Section 2(2) (6), and (7) of the Act II THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answers admit, and I find that the International Union, Allied Industrial Workers of America, and its Local 879, are labor organizations within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Sale of the Plant The plant involved here is located in Hartford, Wis consin, and consists of a number of buildings, some inter connected and some freestanding , built between 1912 and 1972, and containing altogether about 655,000 square feet The plant was purchased by the Chrysler Corpora tion in 1965, and was used for the manufacture of out board motors and two cycle industrial motors By the early eighties Chrysler s biggest customer for outboard motors was the Seattle based Bayliner Marine Corpora tion 2 In 1981 , Bayliner inquired of Chrysler about the possibility of purchasing the outboard manufacturing fa cility, but apparently that was not pursued In 1983, the Chrysler Corporation decided to sell the Hartford facility, and contacted Bayliner as a prospective purchaser Harold J Daumler Jr, former manager of asset studies for Chrysler, testified that he had been involved in the sale of various Chrysler operations, including Chrysler Marine Corporation, the operating division at the Hart ford facility 3 Negotiations between Chrysler and Bay liner were extended and, at times, acrimonious Aside from questions about the price for the facility, and whether Bayliner would purchase the stock of Chrysler Marine or merely the assets a major point of contention was the disposition of the people employed at the plant On this latter question Chrysler was anxious about the fate of the current employees, not so much out of consid eration for the welfare of those employees, but because of the prospect of liability under its union contracts for enormous sums of money in severance pay and supple mental unemployment benefits Bayliner on the other hand, acted in a manner throughout these negotiations which seemed to indicate a desire to keep all its options open 4 Despite this attitude, it was evident from the tests 2 Chrysler also sold outboard motors directly to independent dealers and also manufactured a line of motors for the Montgomery Ward Coin pany 2 Chrysler Marine also operated a plant in Beaver Dam Wisconsin and the discussions for the sale concerned both plants during the negotia tions but the Beaver Dam plant was not included in the final agreement for the final sale of the Hartford plant 4 My findings on the subject of the negotiations and sale of the Hart ford plant are based on the credible and undenied testimony of Daumler and Chrysler s associate general counsel Leroy C Richie and on docu ments introduced through these witnesses After my denial of its motions to sever or to dismiss and without any notification to me Bayliner and its counsel chose voluntarily to absent themselves from this hearing mony of Daumler, and that of James W Hoag Bay liner s vice president for administration, who also became the general manager at the Hartford plant, that it was Bayliner s intention to begin its own operations at Hart ford as soon as possible after the sale Daumler quoted Donald Saunders, the corporate secretary treasurer and one of the principal stockholders of Bayliner, as saying sometime in the fall of 1983 that Bayliner planned to hire at least 85 percent of the Chrysler employees In a tele phone conversation on 26 September 1983 between Daumler and Christopher Steffan, a Chrysler vice presi dent on one end and J Orin Edson, Bayliner s chairman and principal stockholder, on the other, Edson was quoted as saying that Bayliner would offer the employ ees its own plans and programs ' to replace those in effect under Chrysler The implication which I read into these statements is that, at that time, Bayliner wanted to start up production as quickly as possible, and in order to do so, it would have to rehire enough former Chrysler employees who possessed the necessary skills and expert ence to enable an effective production schedule to be im mediately established Despite some disagreements the terms of the sale were finally worked out late in November In a memorandum requesting approval of the sale submitted by Chrysler s management to its board of directors on 8 December a description of the terms of the sale included the com ment that "Bayliner will make no commitment to offer jobs to all current employees but expects to employ at least 85-90 percent of the present work force " The Board duly approved the sale, and the transaction was to be effective as of 30 December 1983 At this point, Local 879 and its International Union filed suit in the United States District Court for the East ern District of Wisconsin in Milwaukee (Civil Action 83 C 1983), against Chrysler Marine Corporation and Chrysler Corporation, seeking to enjoin the sale as being in violation of contractual requirements that the Unions be given 6 months advance notice of the closing of the Hartford plant, and that the Company negotiate a sever ance pay plan 5 With the filing of the suit, Chrysler dis patched Associate General Counsel Leroy C Richie to Milwaukee to do what he could to clear the matter up Richie called Edson and asked him to support Chrysler s position by having someone from Bayliner testify or exe cute an affidavit that the latter company intended to hire a majority of former Chrysler employees Edson refused to support Chrysler's position in a conversation which Richie described as surprising and not pleasant Richie then instructed Daumler to prepare a memoran dum including language which Richie told Daumler to put within quotation marks as accurately representing the substance of what Edson had said The memorandum noted that Bayliner officials had said throughout the ne gotiations that they expected to hire a majority of the present employees because they would be needed to run the plant, and then reneged on an agreement to support that position in the Federal court The memorandum 5 Chrysler s internal documents in evidence here show that their labor relations people felt that Bayliner s commitment to continue operations for a year would render these contractual provisions inapplicable US MARINE CORP continued it was not until a day two prior to the De cember 28 hearing that you (referring to Edson) indicat ed that you never had any intention of recognizing or even negotiating with the Union Now it would appear that your intention is to hire less than 50 percent of the current employees Therefore the liability for employee severance is going to run in the millions Had we known this we would have structured the deal to avoid this li ability Your misrepresentation has caused us this sub stantial damage Daumler then called Edson and read this language to him Daumler did not recall what Edson said but remarked that it was so minimal as to be insig nificant " Richie was a careful witness, but I found his testimo ny, particularly his clear, positive assertions on cross ex amination that the substance of the memorandum that he had Daumler prepare was in fact, what Edson had said to him, to be candid and credible Thus, I find that some time between September and December, Bayliner made a determination that it would not honor its agreement with Chrysler to hire 85-90 percent of the former Chrysler employees, and that Edson stated to Richie that Bayliner intended to hire less 50 percent of its work force from among former Chrysler employees It may be noted that Hoag did in fact make an affida vit to be used in the Union's lawsuit, but that affidavit carefully avoids any statement that Bayliner intended to hire a majority of former Chrysler employees, stating merely that Bayliner was required under the terms of the agreement with Chrysler to operate the plant for a period of not less than 1 year The district court issued an injunction forbidding the sale, but I was informed by the parties that that decision was reversed by the United States Court of Appeals for the Seventh Circuit The sale then went forward and Chrysler closed its doors on 13 January 1984 B The Corporate Succession Bayliner Marine Corporation was founded in 1955 as a retail dealership called Advance Outboards In 1966 or 1967 the Company began to manufacture boats under the name of Puget Plastics and in 1972 was incorporated under its present name of Bayliner Marine Corporation It is a Delaware corporation headquartered in Arlington Washington 6 which is entirely owned by four share holders J Orin Edson Vinton H (Slim) Sommerville, David Livingston, and Donald Saunders As of October 1985 and at other times material Edson was the chair man of Bayliner, Sommerville the president, Saunders the secretary treasurer, and Livingston the vice presi dent In addition to these four individuals, the board of directors of Bayliner also includes Lennox Black of Lim enck, Pennsylvania, and John Hughes of Seattle, and Terry Picken of Bellevue Washington By 1985, Bay liner was operating 13 plants throughout the United States engaged in the manufacture of fiberglass hulled powerboats ranging from 14 to 45 feet in length There 6 The complaint was amended at the hearing to reflect the fact that Bayliner s headquarters is at Arlington Washington instead of at Hart ford Wisconsin 679 are no unions which represent any employee at any of these 13 plants In connection with the purchase of the Chrysler out board operation The managers of Bayliner decided that the newly acquired plant would not operate under the Bayliner name but that a new corporation to be known as U S Marine Corporation, would be created and incor porated under the laws of the State of Wisconsin This was duly accomplished, and the new company was es tablished on 15 December 1983 The shareholders and di rectors of U S Marine are the same as those of Bayliner but the officers chairs have been shuffled around some what, Edson being the president, Livingston the vice president, Saunders the secretary, and Sommerville the treasurer After the finalization of the sale from Chrysler to Bay liner for a total amount of $14 8 million, Bayliner as signed the plant, real estate, and all other assets to U S Marine for a sum estimated by Bayliner Attorney Donald C Cramer as $10 7 This done, Bayliner then di rected its vice president for administration, James W Hoag, to run the new company Hoag is an attorney who had been vice president for administration for Bay liner since September 1982 In that position he had re sponsibility for human resources and legal services in cluding all personnel functions, training, compensation, and recordkeeping for all the 13 Bayliner facilities Hoag reported directly to Vice President David Livingston As of 16 January 1984, Hoag was made general manager and chief operating officer of U S Marine where he re mained at least until the close of this hearing in Novem ber 1985 During this time, however, Hoag retained his title with Bayliner, and was paid by Bayliner, not by US Marine After Hoag assumed control of the new company, his first task was the hiring of a work force, and steps to do this were instituted even before the closing of the plant by Chrysler on 13 January 1984 Coupled with the hiring process itself, which will be discussed in detail below was the concurrent establishment of new wage rates, other conditions of employment and certain operational changes in manufacturing processes, principally involv ing the reduction in the number of models to be pro duced Both Bayliner and U S Marine maintained throughout the hearing, and in their separate briefs that U S Marine and Bayliner are not a single or joint employer under the Act Bayliner s brief, indeed, is devoted solely to this issue The question of whether they are separate inde pendent entities or are a single or joint employer depends on the application of the four criteria established by the Supreme Court in Radio Union Local 1264 v Broadcast Service 380 U S 255 (1965) Interrelation of operations, common management, centralized control of labor rela tions, and common ownership American Stores Packing 277 NLRB 1656 (1986) ° Neither Cramer s demeanor nor his testimony about his first knowl edge of these proceedings inspired much confidence on my part as to his truthfulness but in the absence of any other evidence I do credit this statement that Bayliner assigned the Hartford operation to U S Manne for a nominal sum 680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD With respect to the first criterion, interrelation of op erations it is true that Bayliner is a manufacturer and seller of boats and U S Marine is a manufacturer and seller of outboard motors and industrial motors It is also true that Bayliner is a Delaware corporation and U S Marine is a Wisconsin corporation 8 The evidence shows however, that Bayliner did not treat with U S Marine at arms length The whole Chrysler Hartford operation which Bayliner had just purchased for $14 8 million was assigned and transferred to U S Marine for a sum thought by Cramer to be $10 Later Bayliner trans ferred machine, tools, designs, and patents for a stern drive engine to U S Marine Hoag did not recall wheth er there was any consideration paid for this transfer Bayliner is U S Marine s largest customer and there was no testimony that Bayliner paid market rates for motors and engines purchased from U S Marine I can draw no inferences from this but it can and must be inferred from these facts that U S Marine is wholly a creation of Bay liner 9 that Bayliner organized U S Marine and gave the plant and all its assets to U S Marine, that Bayliner, in effect, gave the stern drive operation to U S Marine, and that Bayliner is the largest single customer of U S Marine It is further inferred that the two corporate enti ties are vertically integrated, one with the other This in ference is reinforced from the fact that the reduction in the number of types of outboard motors and the numbers of those motors to be produced by U S Marine were all determined by Bayliner even before the sale from Chrys ler was completed, 10 and, according to U S Marine s brief, estimates of U S Marine employment levels were determined by reference to Orin Edson s estimates of how many motors Bayliner would require from U S Marine The fact of common management does not need to be inferred but is apparent from the fact that the officers of one were the officers of the other i i At the next lower level the actual operation of U S Marine was directed by Hoag a Bayliner vice president Thus although there is evidence that Hoag actually exercised management functions at Bayliner while he was on assignment to U S Marine, the fact that he held his Bayliner title and salary and that, even after finally returning to Bayliner in the fall of 1985 , he again came back as general manager of US Marine because of his successors legal problems shows that he was considered an interchangeable ele ment in the common management of the two enterprises There is of course no question of common ownership here because the same four individuals own all the stock of both operations With respect to centralized control of labor relations it must be noted that we are dealing here with two dissimi lar situations involving labor management relations 0 Hoag testified that one of the reasons for the choice of Wisconsin as the State of incorporation for U S Manne was tax considerations He was not asked nor did he say what the other reasons may have been 9 Having the same persons as directors officers and stockholders 10 See letter from Hoag to Chrysler employees dated 8 December 1983 11 Although Edson Sommerville Saunders and Livingston held dif ferent offices in the two corporations Hoag admitted that because these four men owned all the stock of both they could call themselves by any title they wanted There are not or were not at the time of this hearing, any unions at any of Bayliner s 13 plants At Chrysler there had been a union and a union contract leaving U S Marine, when it took control of the former Chrys ler facility facing the situation we have in this case As I have indicated Hoag was given the responsibility late in 1983 to hire a staff to recommence production fol lowing the closing of the plant by Chrysler and given authority to develop a wage and benefit package for these new employees Hoag testified that he had inde pendent authority to establish the wage and benefit package, but he also indicated that he consulted with Livingston and Saunders as well as Herb Hackbarth, former personnel manager for Chrysler 12 There is no question but that Hoag was the officer responsible for the implementation of labor relations policies at U S Marine from the time U S Marine assumed control of the Hartford plant until as least the time of this hearing There is a great deal of evidence concerning these labor relations policies which will be discussed in various sec tions in this decision There is however, very little evidence and no direct evidence, on Bayliner s labor relations policies Hoag, who was in a position to know what those policies were because he had administered them during 1972 and 1973, testified only in general terms about his duties at Bay liner, and did not explain what personnel policies were in effect then Bayliner, having failed to attend the hear ings, or to submit any evidence on this subject, must, perforce suffer me to draw what permissible inferences I may from the record I have before me These facts show a clear line of derivation from pole cies and practices of Bayliner to those of U S Marine At the outset we have the fact that Hoag s experience with personnel and labor relations policies must be based on his experience at Bayliner As far as I can tell from his testimony his only experience in personnel and labor relations was in his capacity as vice president for admen istration at Bayliner from 1972 to 1974 I would infer then that in the absence of evidence that he was using other sources, Hoag drew on his experience at Bayliner, and the policies and practices with which he was there familiar, in formulating and implementing policies and practices at US Marine This inference is borne out by the evidence Even before the sale of Chrysler was finally agreed on, we find Edson in a telephone conversation on 26 September 1983 with Christopher Steffan and Harold Daumler stat ing that Bayliner planned to offer the people our own plans and programs to replace yours Later, Edson ex pressed concern that Bayliner s intention to implement a group incentive compensation system at the Hartford plant might provoke a strike by the incumbent Union In his communication to Chrysler employees on Bay liner s letterhead, and dated 8 December 1983 Hoag told them that Bayliner had purchased Chrysler s Marine and Industrial Products Operations 13 Hoag s letter 12 Hackbarth had been personnel manager of Chrysler for some years before 13 January 1984 and then stayed on with U S Marine until he retired on 31 May 1984 13 This was before the Unions lawsuit against Chrysler the injunction and the separation of the Beaver Dam plant from the Hartford operation US MARINE CORP went on to say that Bayliner was organizing an affiliated company called U S Marine and promised the employ ees that management would be applying the same phi losophies that made Bayliner an industry leader includ mg the belief that efficient teamwork is one of the keys to success This last sentence can only refer to the ap plication of Bayliner personnel policies and practices to the employees of U S Marine In a letter dated 13 December 1983 to Chrysler deal ers, under the U S Marine letterhead, Sommerville stated (signing as president of U S Marine' a), Every one at Bayliner Marine Corporation and all the new people who will be hired for the US Marine Engine Company are here to serve you and make this the most successful engine program in the country The meaning of this is that Bayliner and its four owners considered that the two companies were united in service to its deal ers and customers An employee handbook prepared by Hoag, using a Bayliner handbook as a model, and distributed to all em ployees of U S Marine states that U S Marine is an of filiate of Bayliner the world s largest pleasure boat manu facturer U S Marine will operate using the same suc cessful formula developed by Bayliner , 'Bayliner and U S Marine Corporation are owned and operated by people who work everyday in the business The owners devote their effort and investment to these two business es exclusively and are committed to making U S Marine a success and a great place to work The handbook stated that Bayltner recognized many years ago that a retirement savings plan was needed for its employees and determined that the plan should accu mulate a cash value to the employee We established the Bayliner Marine Profit Sharing Trust of which all eligi ble U S Marine employees automatically become mem bers As it turned out, U S Marine eventually set up its own profit sharing trust However the terms were the same, and the trustees were the same, in both trusts The trustees were Orin Edson and Donald Saunders During the collective bargaining negotiations which took place in 1984, Hoag stated on two occasions, as pre served in the Company s notes, that Bayliner s policies would prevail if there was a conflict between those maintained by Bayliner and those sought by the Union in negotiations with U S Marine Despite Hoag s protestations that he alone formulated labor relations policy for U S Marine, he admitted that he consulted with Livingston and Saunders in the devel opment of the initial wage package implemented on the reopening of the plant on 23 January 1984 that he con sulted with the four owners of the Company before de ciding not to appeal the injunction ordering U S Marine to bargain with the Union in May 1984 that he contin ually consulted with the owners of U S Marine and Bay liner about the union situation at U S Marine and about the progress of this hearing Finally, the evidence shows that on beginning production at Hartford in which all employees were required to participate U S Marine in 1' Sommerville of course was president of Bayliner and Edson was president of U S Marine but as I have noted the four sole stockholders of both companies could call themselves anything they wanted 681 stituted a mandatory system of Safety and Progress Committees again modeled on those in existence among employees of at least two other Bayltner plants It is apparent from all this that the owners of Bayliner and the creators of US Marine intended to, and did, place into effect the same policies and procedures which the owners had found to work successfully at other Bay liner plants This is a consistent pattern not contradicted by any testimony or documentary evidence, and I find that Bayliner and U S Marine have during all times ma terial shared a common labor relations policy Accordingly, I find that Bayltner and U S Marine are commonly owned, have interrelated operations and share common management and centralized control of labor relations, thus constituting a single employer Al britton Communications, 271 NLRB 201, 218 (1984) Truck & Dock Services, 272 NLRB 592 (1984), Las Villas Produce, 279 NLRB 883 (1986) C The Hiring Process Chrysler employed about 262 production and mainte nance employees at the time it closed the plant on 13 January 1984 15 All these employees were terminated at that time and were notified that if they wished to be con sidered for employment by U S Marine they should file applications with the Wisconsin Department of Industry, Labor and Human Relations (the Job Service or DILHR) In his letter to the Chrysler employees dated 8 December 1983, Hoag asserted that Bayliner/U S Marine would be hiring the best qualified individuals from the local area You, as an employee of Chrysler are encouraged to apply for work with U S Marine Hoag also notified the Job Service to send all former Chrysler employees who filed applications to the Com pany for interviews without any preliminary screening required of other applicants To conduct the interviews for former Chrysler employees as well as other appli cants, Hoag brought in five Bayliner executives Allen McKay from Bayliner s Arlington location Robert Hill, facilities engineer at Arlington, Gary Klement plant manager at Valdosta Georgia, Ron Cooley senior vice president for manufacturing at Arlington, and Richard Hammond, human resources manager from Arlington Hoag testified that he himself did some interviewing The interviews were scheduled for the week following the shutdown of the plant on 13 January 1984 Hoag stated that interviews for the former Chrysler employees were set for the first 3 days of that week, with other ap plicants scheduled for the last 2 days 16 The interviewers had been briefed by a labor consultant in Arlington before coming to Wisconsin, and were further briefed by Hoag on the Sunday night before the interviews were to take place The interviewers were told to ask questions relevant to the job and to make sure to ask no questions i s In referring to former Chrysler employees throughout this decision I am referring to those 262 employees who were working at the time of the closing of the plant not to employees who may have worked for Chrysler sometime in the past 16 Hoag projected that 230 jobs would be filled after this round of interviews during which about 500 applicants both former Chrysler and non Chrysler employees were interviewed 682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that could be considered discriminatory in regard to age handicaps sex marital status, or union activity Hoag re viewed with them the topics they should discuss includ ing the types of machines the applicants ran, the toler ance they were used to, and their versatility and flexibil ity concerning future job assignments The interviewers were given copies of the Bayliner employee handbook later used as a model for a U S Marine employee hand book, and were told to discuss wages and working con ditions with the applicants Following the interviews, the scenario for the hiring process called for those not obviously disqualified to be referred for physical examinations to a group of nurses also apparently brought in from Bayliner locations 17 Each evening after the interviews ended the interview ers and the nurses discussed the interviews with Hoag, who had sheets showing the names of the days appli cants Hoag did not tell the interviewers what criteria he was looking for, but did discuss the interviews with the interviewers and the physical abilities of the candidates with the nurses An additional step in the process was a daily consults tion in that week of 16 January between Hoag and three former Chrysler executives who remained on the payroll of U S Manne-Herbert Hackbarth, the personnel man ager, Harvey Bulgrin, former plant manager and John Smith, former production manager These individuals rated all the applicants on a scale of one to three, one being the lowest mark, and gave these ratings to Hoag Hoag then considered all this information and made the decisions on those who would be hired and those who would not without further consultation with the inter viewers, the former Chrysler officials, or anyone else Those selected for hire were notified to report for work on 23 January, when the plant reopened under the man agement of U S Marine At that time 219 employees had been hired, all of whom were former Chrysler employ ees By 25 January 12 more employees had been hired among whom were 3 former Chrysler employees One more former Chrysler worker was hired on 30 January, making a total of 223 former Chrysler workers on the payroll as of that date Between 25 and 30 January an additional 29 non Chrysler employees were hired making a total as of 30 January, of 261 employ ees Em ployment records maintained by U S Marine show that from 23 January to 31 August 1984 the total employ ment ranged from 219 to 323, stabilizing between April and August at 312 to 323 During this whole period the number of former Chrysler employees varied from a high of 223 to a low, as of 31 August 1984, of 218 As has been noted no former Chrysler employees were hired after 30 January 1984 Of 258 former Chrys ler employees who applied for employment with U S Marine as shown by the evidence here 34 were not re hired When one looks at these facts, two differing perspec tives emerge the first pointing toward the allegations in 17 The process was hobbled so far as I can determine by the fact that all the Chrysler employees employment and medical records had been bundled up when the plant closed on 13 January and sent off to Chrys ler s headquarters in Detroit These records were unavailable to U S Marine through no fault of its own the complaint dealing with U S Manne s failure to rec ognize the Union, and the second with the refusal to rehire 34 former Chrysler employees I will deal with these two broad issues in that order, but would note that they are interrelated to some extent, and they will be cross referenced here at appropriate points of contact D The Refusal to Recognize the Union The Union was aware, during the negotiations be tween Bayliner and Chrysler, of the possible disadvan tages to its members and itself resulting from the sale of the Chrysler Marine operation In the Union s last collec tive bargaining agreement with Chrysler, the parties in eluded a side letter dated 30 June 1983, providing for 6 months notice of the closure of the Hartford and the Beaver Dam plants and for the negotiation of a sever ance pay plan This provision was of course part of the reason why Chrysler officials including Leroy Richie, were so concerned about Bayliner s equivocal stand on rehire of the Chrysler employees late in 1983 It was this provision, also which led to the Union s attempt to block the sale in December of that year On 13 December Hoag and Herbert Hackbarth met with Local 879 President Donald L Griffin Robert Johnson, Regional Director for Region 9 of the Interna tional, and John Neff a staff representative for Region 9 According to Hoag s testimony, which was in agreement with that of Griffin, Hoag informed the union represent atives that Bayliner did not intend to recognize the Union and that Bayliner would not abide by the existing agreement between Chrysler and the Union Griffin also recalled that Hoag said that he was not interested in having a union represent the employees, and that he was too busy to deal with the Union at that time Hoag ad mitted that he may have made these last two statements I credit Griffin s testimony that the statements were, in fact made by Hoag On 25 January 1984, the Union, by John Neff, wrote to Hoag, formally requesting that Bayliner and its sub sidiary U S Marine, recognize the International and the Local as the representative of the Hartford employ ees The letter also requested information on the names and addresses of all employees hired by Bayliner/U S Marine with job titles and wage rates and copies of em ployee manuals and handbooks relating to current bene fits U S Marine did not respond to this letter, and on 2 February 1984 the Union filed the original charge in this matter in Case 30-CA-8206 During the course of the events leading up to this present hearing on 13 April 1984 the Regional Director petitioned the United States District Court for the Eastern District of Wisconsin for an injunction requiring U S Marine to bargain with the Union pending resolution of the underlying issues in Case 30-CA-8206 all under the provisions of Section 10(1) of the Act I" During the district court proceeding it was argued by U S Marine, and expressed in an affidavit executed by Hoag and submitted by U S Marine to the court that U S Marine had prepared production forecasts in Janu 18 Civil Action No 84-C-498 filed 13 April 1984 US MARINE CORP ary 1984 which determined when we would reach a level of employment that could be regarded as a full complement for our normal operations This led to the conclusion that as of June, 1984, we would have 460 people employed The theory, then, on which US Marine based complement 19 theory stated (as dicta) in NLRB v Burns Security Services, 406 U S 272 (1972), to the effect that the employer had no duty to recognize the Union on 25 January 1984 20 According to U S Marine s theory, it began initial op erations with less than a full complement of employees In such circumstances [w]hen a new employer hires only part of the old unit, together with others who were never part of the unit, any decision regarding the employers duty to bargain with the Union affects the new employ er, the old employees whom he had hired, and the new employees who were not previously represent ed by the Union The rights of all three must be considered The `full complement standard of Burns attempts to define when the make up of the controlling majority is to be determined The problem then becomes one of defining what is meant by a full complement That cannot be done by the application of a mathematical formula but only by considering the facts of each case in light of the general goal which is sought-to assure majority rule within the new employers unit as to whether and if so with what Union there must be collective bargaining Pacific Hide, supra, at 612- 613 Accurate as the court is in Pacific Hide regarding its appreciation of the Burns standard, and in its recognition of the principle of majority rule, it is with no disrespect intended that I differ with the court's rejection of the ap plication of a mathematical formula to the issue In all these kinds of cases the result must turn on the applica tion of arithmetic or mathematical formulas and on the ratios between the numbers of employees employed by the predecessor employer in the appropriate unit As pointed out by the court in Pacific Hide the facts of each case must be examined to determine the point at which a full complement of employees is attained, or maintained in order to assure majority rule In this search we must turn first to the methods used by U S Marine to determine when its full complement would be reached, and next to discover in or at what point that full complement was reached The Company s projections for the number of produc tion employees required in a given month in the future were based, first, on estimates by the U S Marine ac to In reaching my conclusions on this issue I find it unnecessary to draw distinctions between full complement and substantial and repre sentative complement because the decision here turns on a different issue namely the validity of statistics used by Respondents to establish a projected employee complement at a future time Cf NLRB v Fall River Dyeing Corp 775 F 2d 425 (1st Cir 1985) 20 Citing inter alts, Pacific Hide & Fur Depot v NLRB 553 F 2d 609 (9th Cir 1977) Premium Foods v NLRB 709 F 2d 623 (9th Cir 1983) and NLRB v Pre Engineered Building Products 603 F 2d 1134 (10th Cir 1979) 683 counting department, under the direction of Accounting Supervisor Gil Kiefer, of the numbers of various types of engines to be manufactured in that month These num bers, in turn, were computed through surveys conducted by Bayliner marketing people 21 These numbers would then be projected by Kiefer s group into a corresponding number of manhours referred to as basic work stand and (BWS) hours This, then, reflected a standard number of hours required to produce the estimated number of engines The figure was then modified by a percentage figure representing the efficiency of the work force as a whole, varying between 142 and 137 percent during the time covered by the estimates submitted as exhibits here 22 A higher efficiency rating would result in a lower number of hours required to meet the required production needs The resulting figure would then be divided by the number of shift, or production, hours in a given month (most often 168 hours, based on 21 working days) result ing in a figure representing the actual number of employ ees needed in what the Company referred to as direct labor" in the month being projected The direct labor figure was then further modified by factoring in categories described by the Company as in direct labor including maintenance, warehousing, includ mg and receiving, and figures representing the manpow er equivalent of scrap, that is, waste, resulting, from errors in the production process, engineering, and work orders, representing work beyond normal production schedules and maintenance functions All these figures were then added to the direct labor number to arrive at the number of people needed to run the factory at the estimated level of production in each month, described as the `manpower at work" figure One final variable figure, the percentage of people who would be absent during that month, was applied in the formula to come up, finally, with a figure described as manpower required Because the final (manpower required) figure derives ultimately, as I have described from projected produc tion requirements it follows that changes in the latter es timates would result in different figures for required manpower In exhibits entered here by the General Counsel fig ures developed by Gil Kiefer on 20 January 1984 showed BWS hours of 59,574 for May and 65,076 for June These figures resulted in an estimate of required manpower for May of 358 and June of 396, before ad justment for the absentee rate 23 Hoag testified that after these figures were developed he added to the Kiefer figures a total of 40 additional en gines for May and 90 engines for June This raised the BWS hours for May to 60 388 and for June to 67,081 and the "manpower at work ,figure (before adjusting for 21 This use of Bayliner s marketing personnel from Bayliner s Arling ton Washington headquarters was reflected in the figures at least for the critical period from January to June 1984 22 January to August 1984 22 Note the absentee rate for this estimate has obviously been removed from the chart entered in evidence as G C Exh 31 and replaced by ab sentee factor figures admitted by Hoag to be in his handwriting 684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the absentee factor) from 358 to 361 in May and from 396 to 405 in June Kiefer s figures (G C Exh 32) show an absentee rate for May of 3 percent giving a total manpower required of 372 and an absentee rate of 7 per cent for June (considered a vacation month) giving a total of manpower required for that month of 433 At the same time 31 January the Company s employment fig ures showed a total of 223 former Chrysler employees on the payroll as of 31 January Arithmetically, based on these figures, the Union would have maintained its majority down through the month which the Company claimed represented the time when it would be employing a representative comple ment of employees However, a revised schedule was then prepared where Hoag replaced Kiefer s estimates of the absentee rate, based on U S Marine figures, with figures representing Chrysler s experience with absentee rates in the calendar year 1983 This chart (G C Exh 34) shows that the Kiefer figures of 3 percent absenteeism for May and 7 percent for June were replaced by Hoag with figures of 7 7 percent for May, giving a manpower requirement of 389 and 13 5 percent for June resulting in a total for that crucial month of 460 Under this reconstruction of Kiefer s figures, if no more of the former Chrysler em ployees were hired from 31 January, and if none of those who had already been hired left the bargaining unit, then the Union would not continue to represent a majority in the month of June Hoag gave no explanation for the revised estimate in the number of engines to be produced in May and June He referred to no marketing forecasts which would have resulted in such round numbers of 40 additional engines in May and 90 in June Further, his testimony on the use of the Chrysler experience is somewhat disingenuous in that he equated the Chrysler experience, where employ ees had up to 4 weeks paid vacation with the US Marine prospects, where employees in 1984 would re ceive no paid vacation at all, in order to justify his use of the 1983 Chrysler absentee rates The accuracy of the manpower requirement figures in terpolated by Hoag into the formulas worked out be tween the marketing people at Bayliner with Kiefer and his staff at U S Marine, depends entirely on Hoag s per sonal credibility Hoag is not an engineer nor a produc tion manager, but a lawyer, involved at Bayliner with human resources and administration not marketing, sales or production As noted there is no corroborating evi dence from Bayliner, or U S Marine, or independent sources, of why Hoag decided that 40 additional engines would be built in May 1984 and 90 more in June Hoag s mere assertion that these revised estimates were made as the result of Orin Edson's optimism seem to me unwar ranted in the light of descriptions of Edson by Richie and Daumler as a tough bargainer , and a businessman in terested in profit, not in unrealistic production goals Edson may, indeed be an optimist He may have built Bayliner's business on sanguinary but unerringly accurate predictions of the public's desire to purchase powerboats But he did not appear in this hearing to tell us these things, and we must rely on the evidence we have in this record which is that he is an owner and manager legiti mately interested in making a profit from his business, and not interested in accumulating unsold outboard en gines The figures in the record here show that Kiefer estimates, based on Bayliner's projected sales figures, were much closer to actual production in May and June than were Hoag s interpolations to those figures Further Hoag s projections on absentee rates, interpo lating figures drawn from Chrysler s experience in the face of the different working conditions imposed by U S Marine on its new work force were manifestly maccu rate Particularly, I find Hoag's testimony that his figures showed a 13 5 percent absentee record in June 1984, be cause he thought U S Marine employees, having no paid vacation time under the new regime, would take as much vacation time as Chrysler employees, who were entitled to up to 4 weeks paid vacation to be strained and not believable Hoag also lowered the employee efficiency rate com puted by Kiefer, on the ostensible basis that a rapidly ex panding work force could not sustain the high level in Kiefer's estimate These last two estimates made by Hoag, like his esti mates in production were not borne out by the facts Indeed all of Hoag's revisions to the production and manpower projections made by Kiefer seem to have very little basis in objective or demonstrable fact Hoag s estimates of the number of engines to be produced may be explained by an excess of optimism about the out board motor business, but his manipulation of the absen tee rates and the efficiency figures does not have any re lation to his off repeated insistence that production is all important, and that union demands, which did not reflect productive use of company time would not be consid ered Nor does his use of Chrysler figures for absentee estimates seem consistent either with U S Marine s desire to hire the most qualified candidates for employment, or with a realistic view of employee willingness to take unpaid vacations I might consider this latter view utterly naive on Hoag s part if I had not had the opportunity to observe him carefully during his almost 3 full days on the witness stand in this hearing He impressed me as a highly com petent no nonsense executive occasionally brusque, but capable also of sincere warmth and charm His grasp of the facts was good, but he did show a selective memory in certain areas primarily in his testimony on the later collective bargaining negotiations, and in his statements to union officers I did not find Jim Hoag to be the type of business executive who would base production or manpower requirements on ephemeral or subjective con siderations However, in this case he chose to override the work of marketing and accounting people, not being either an accountant or a marketing specialist himself in the end offering no logical explanation for this The ex planations he did give are inconsistent not only with the estimates he revised, and the final figures actually at tained in the critical months of May and June 1984, but are completely inconsistent with his own demonstrated and observed action in other aspects of this case For these reasons I do not credit Hoag s explanations of his motives in revising the U S Marine estimates of US MARINE CORP 685 production and manpower needs from January to June 1984, and particularly for the months of May and June The most logical explanation for Hoag s actions, and the reason most in accord with the probabilities of the situa tion, is that the figures developed by Hoag, and applied to the January estimates for the 6 month period to follow, were intended to furnish a mathematical and sta tistical basis for a defense to the Union s interest in the bargaining unit here 24 Whether the immediate cause for Hoag s action was the filing of the unfair labor practice in Case 30-CA-8206 on 2 February 1984, is really imma tenal, because Hoag was aware of the Union s continu ing interest in representing the unit employees from the 13 December meeting, and the 25 January demand for recognition Respondents argument that US Marine did not recognize the Union in January, nor until ordered to do so by the district court, because it believed that a full complement would not be reached until June, is shown to be based on false and misleading figures The cases on which Respondents rely are thus not relevant to a situa tion where the actual figures on Kiefer s original esti mates, carried forward, consistently, until June 1984 show that the former Chrysler employees constituted a majority of the Respondents work force from 23 Janu ary when the plant reopened through the entire period covered by the evidence introduced at the hearing, that is, until August 1984 In this case there is no question that the skills used and the functions performed by the employees are the same under U S Marine's management as they were under Chrysler s The business continued in the same plant as it had before, using the same supervisory and clerical staffs as it had before The products sold remained the same,25 as did the equipment and methods of production The primary customers for the products of the Hartford plant remained basically the same, Bayliner as the primary cus tomer, with other dealers as soon as they could be per suaded to handle U S Marine engines In light of all these circumstances Respondents de fence that a full complement of employees had not been hired as of 25 January 1984, and that Respondents were therefore not required under the law to recognize and bargain with the Union, is rejected 26 I find, further, that the Respondents have violated and are violating Section 8(a)(1) and (5) of the Act by refusing since 25 January 1984, to recognize and bargain with the Union Burns Se curity Services, supra, Grico Corp 265 NLRB 1344 (1982), Premium Foods, supra, Metropolitan Teletronics Corp, 279 NLRB 957 (1986) E The Failure to Rehire Closely tied to the factual issues which were discussed in the preceding section is the issue raised by allegations in the complaint that Respondents unlawfully failed and refused to rehire 34 former Chrysler employees who had applied for employment with U S Marine 27 Referring to my discussion in the previous section, it would seem that Hoag had intentionally and falsely ma nipulated the production, worker efficiency, and attend ance projections, and that he did not really believe either his own interpolations or the manpower required fig ures resulting therefrom He would, in that case, have no compelling motive to decline to rehire any additional Chrysler employees If, on the other hand, I were to be lieve that Hoag doctored" these figures in the belief that the manpower totals resulting would be justified post hoc by the actual employment situation in June, then, and in that case, I could find that he declined to hire any more Chrysler employees after 31 January in order to avoid tipping the balance further toward a union majority, and a legal obligation to bargain with the Union The major evidentiary fact tending to favor this latter alternative is the admitted failure of U S Marine to hire any more Chrysler employees after 30 June 1984 I re ceived testimony from 12 of the former employees of Chrysler who were not hired I refused to hear the re maining employees, informing the General Counsel at the hearing that I would infer, in the absence of evidence to the contrary that all the employees who were not hired were good employees had exemplary work records and were versatile and skilled in various jobs in the plant Having heard nothing to the contrary I find that the skills, abilities and versatility and their work re lated characteristics of these 34 employees were compa rable to those 223 former Chrysler employees who were hired by US Marine 28 24 At this point however I do not see that the interests of justice will be served by my recommending to the General Counsel or to the Board that this matter be turned over to the Justice Department for consider ation under 18 U S C § 1001 et seq 26 The fact that the number of engine models was reduced is not sig nificant because the product remained exactly the same 2e Respondents also denied that the bargaining unit alleged in the corn plaint is an appropriate unit The distnct court in Case 84-C-498 found that the unit sought by the Board there was an appropriate unit At no time did Respondents introduce any evidence on this point and what evi dente there is in the proposals made by U S Marine in the course of bargaining with the Union after April 1984 shows that Respondent U S Marine at any rate did recognize the unit as alleged in the complaint I find in these instances that Respondents answers are not based on real issues of fact or law are frivolous and are designed to prolong and extend these proceedings Those denials are therefore stricken from those answers See e g NLRB v Boston Needham Industrial Cleaning Co 526 F 2d 74 (1st Cir 1975) on the question of a split unit in a successorship situation and are considered of no effect in this proceeding 27 There were actually 36 names on a list which was used as a refer ence at this hearing One name that of Donald C Clark was stricken from the list because he died early in February 1985 Another name that of Marlene H Shileds was dropped by agreement of the parties because it was stipulated that she was not working at Chrysler as of 13 January 1984 Neither of these employees will be considered in my decision here 28 The record shows that the employment levels at Chrysler before it closed were far below what they had been Local Union President Grif fin testified that all the employees remaining in January 1984 had at least 10 years semonty Thus it is apparent that many of them had long serv ice and were long in years as well The length of service of the 12 former Chrysler employees who testified here ranged from l l to 31 years The average length of service was over 19 years All these people were middle aged and some had histories of accidents illnesses and allergies to industrial products However there is no evidence that either the em ployees who were hired or those who were not and did not testify here displayed substantially different employment histories health seniority or allergenic characteristics 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD But beyond the bare fact that no former Chrysler em ployees were hired after 30 January 1984, even when that fact is considered together with the antiunior feel ings and actions of the Respondents, as I found in the preceding and will find in the following sections of this decision, I can discern no real, substantive evidence that the refusal to hire the 34 was based on their union mem bership or on their former employment with Chrysler or even on their various ailments, job preferences, or self imposed restrictions on shifts or days they would be available for work 29 The hiring process that took place in the week of 16 January 1984 did not impress me as well organized or systematic The interviewers, a pickup team of assorted Bayliner managers, might just as well have stayed at home, for all the effect their admittedly long and hard efforts had on the ultimate decisions on who would be hired Aside from one instance where interviewer Gary Clement relayed to Hoag his opinion that applicant Tim othy Noble had been drinking at the time of his inter view30 there is no indication that the notes they com piled were used by Hoag in the final decisional process Much more important to the process were the recom mendations of Hackbarth, Bulgrin, and Smith former Chrysler managers, who rated the applicants and con veyed those recommendations to Hoag Hoag s own testimony on his part in the decisions to hire or not to hire tended to be fragmentary and not marked by his usual ability to remember past events All the notes that he received from the interviewers, and those notes he himself made either from the interviewers notes or on the ratings from the Chrysler managers were destroyed after the original charges in Case 30-CA-8404 were dismissed by the Board s Regional Office 31 To sum up regarding the interview and hinng process it is true that the methods used were informal and unsci entific, and that we have very little in the record to doc ument management s decision except Hoag s halting and anecdotal testimony, corroborated, if one can call it that, with halting and anecdotal testimony by the Bayliner interviewers and the Chrysler exmanagers The end result of this process, flawed as it may have been, was the hiring as of 23 January, when the plant reopened, of 219 employees, all former Chrysler workers including 29 I am not unmindful in reaching this conclusion of the statements by Edson memorialized by Richie that Edson had no intention of dealing with the Union nor of the establishment and maintenance by U S Marine of the Safety and Progress Committees nor of the statements and actions of Hoag and Lombardo during the extended negotiations with the Union from April 1984 to the time of the hearing nor of the impact of state ments by these officers of Respondents on the collective bargamng proc ess but I cannot extrapolate from these other demonstrated unfair labor practices to those unfair practices alleged in this portion of the case unless I can find a nexus or a junction point where Respondents hostile ty toward the Union intersects with the hiring process here under discus sion 30 Noble emphatically denied this while he was testifying I credit Noble s denial He was a candid and credible witness Si I can read no adverse inference into this action Hoag did not act in an unreasonable or imprudent manner in assuming that when the Region al Office dismissed the case it was dead and he could dispose of material dealing with it Those of us who are more familiar with Board proce dures might better appreciate the fact that like Lazarus cases can and do come back to life through appeals or on reconsideration by the Regional Office or by the General Counsel according to Dan Griffin's testimony, of 16 out of the 17 former union officers and stewards Turning to the next stage of the hinng process, the U S Marine manning level figures for January show that after the plant reopened an additional 12 employees were hired on 25 January, of whom 3 were former Chrysler employees, 7 more on 26 January, including no former Chrysler employees, on 27 January with no Chrysler employees, 5 on 30 January, including the last Chrysler employee rehired, and 3 more on 31 January This made a total of 264, including 223 Chrysler employees We do not really know, despite the size of this record and the diligence of all counsel in trying to make avail able to us all the material facts concerning the issues in dispute, what processes were used, or what standards ap plied, to these post 23 January hires as well as these in subsequent months We have scattered pieces of informa tion, such as employment records from Chrysler on six employees who were rehired, and showing poor or mar ginal performance ratings These employment records were not, of course, available to US Marine at any time, because Chrysler had removed all such records before the Respondents took over the Hartford plant In any event, this information does not help the General Counsel because it merely shows that some former Chrysler employees who did not have good work records were hired, and some of the 34 not hired, who were given low ratings by the Chrysler managers who continued to work for U S Marine, were not Similarly, the citations in this record of five persons who were not former Chrysler employees, and who were hired fails to give much support to the General Counsels theory of disparate treatment accorded by Re spondents to the 34 nonhires Two of these people were obviously hired because of their relationship to U S Ma rine's personnel officer and production manager, respec tively Another a person with a Spanish surname was hired according to Hoag to increase minority representa tion among the new employer's employees Beyond these two areas and despite Personnel Manag er John Lombardo s admission that some unqualified people who were not former Chrysler employees were hired the General Counsel had failed to present what I consider substantial evidence that the failure to hire the 34 employees was due to the fact that they were mem bers of the Union 32 I cannot find, here that the General Counsel has established that the 34 were not rehired be cause of disparate treatment People with good and bad records were hired, or were not hired The Respondents did hire 223 out of 257 former Chrysler employees who applied including 17 out of 18 union officers and stew ards There is no substantive evidence of why one person was hired and one was not hired I do not believe that fairness, or principles of due process, or the principles of Wright Line, 251 NLRB 1083 (1980), require that Re 32 It seemed to be presumed by all parties and I think I properly can infer that all the former Chrysler employees having worked under a union shop contract were members of the Union and would be counted by all parties as such Hoag s general statements that there was diaffec tion with the Union among the rehired U S Marine employees were not supported by any evidence US MARINE CORP 687 spondents here be put to the test of carrying forward the burden of proving that their hiring process did not dis criminate against the 34 alleged discnminatees In addition to these assertions of disparate treatment, the General Counsel also maintains that the failure to hire the 34 was due to an unlawful desire to keep the numbers of former Chrysler, i e, Union, employees down below 50 percent of the figures U S Marine had computed as the total number of employees at the time of full employment in June 1984 That latter figure, 460, made it imperative that the Respondents hire no more than 229 Chrysler employees, thus when the hiring of Chrysler employees reached 223, it was determined to hire no more Under this theory the violation was a matter of numbers, not requiring proof of disparate treat ment, and would apply equally to all those applicants not rehired because of Respondents' numerical imperative, regardless of skills, versatility, flexibility, or past employ ment record The problem I have with this theory is one which I discussed above, and also with the parties at the hearing, perhaps not as succinctly or articulately as I would have liked, but, basically, on the grounds that what we have here is an inherent contradiction between my findings that the manpower required figures computed by Hoag early in 1984, and showing a total of 460 for June, were in fact false, and the General Counsel's theory that the manpower required figure of 460 was a real goal of the Respondents and that the failure to rehire additional em ployees was an unlawful attempt to attain a nonunion majority of employees in June 1984 Because I have already found that the manpower fig ures computed by Hoag were false and designed to de ceive the Board and the courts on a theory that full em ployment at the 460 level would not be attained until June, I cannot now disavow these findings and can decide that the 460 figure was a real, valid goal and that the failure to hire was based on real and valid calcula tions that continued hiring of Chrysler employees would endanger a real, valid nonunion majority These two findings are incompatible, and because I have made the first, I cannot now make the second I find therefore that the General Counsel has not established a prima facie case that the failure to rehire the 34 former Chrysler em ployees violated Section 8(a)(1) and (3) of the Act See Wright Line supra F The Collective-Bargaining Negotiations After the district courts 10 May 1984 order to Re spondent U S Marine to bargain, the Union and Compa ny met for a total of 19 times between 24 May 1984 and 15 May 1985 in what were described in the record as bargaining sessions The General Counsel has alleged Re spondents' conduct in these sessions as further violations of Section 8(a)(1) and (5) of the Act To properly understand these allegations, it is neces sary to look at the totality of Respondents' conduct toward the collective bargaining process, as well as toward the Union, its officers and agents The attitude of the Respondent companies was made clear by Edson s statements to Richie described above Edson, as the chief executive officer of Baylmer had no intention of dealing with the Union Bayliner's employee and agent, Jim Hoag, emphasized this point at his meet ing with the Union on 13 December 1983 Respondents' conduct through early 1984 reinforced these statements They refused to recognize the Union, attempting to color their refusal with legality by the use of false and mislead ing employment projections On the takeover of the plant by U S Marine the five union bulletin boards in the plant were removed Griffin testified that this was done during the week of 23 Janu ary Hoag did not really remember, but he "believed" it was someone in Chrysler management" who removed the boards I credit Griffin s version of this incident and find, consistently with my other findings, that the remov al of the boards was done at Respondents' direction as part of a plan to wean the employees away from loyalty to the Union and into a position of dependence and reli ance on Respondents Another element in this overall scheme was the refusal by Hoag33 to allow Griffin or any shop steward any time off, either compensated or uncompensated, to investigate and process grievances In this way, employees were left to whatever contacts they could make on breaks or outside of working hours, losing that moment when the incident was fresh in the minds of all and quick resolution was possible Employ ees necessarily would become frustrated and the Union viewed as, at best, helpless, and at worst, ridiculous These measures show clearly that Respondents' wished to eliminate any union presence in the plant This inten tion is also made clear in Hoag's insistence that bargain ing meetings be held away from the plant and outside of working hours When the city hall in Hartford proved unsatisfactory the meetings were moved 40 miles away to the Union s offices in north Milwaukee, far from any possibility of direct contact between the worker in the plant and the negotiation process 34 The principal element in Respondents campaign to en courage employees to depend solely on management for the settlement of problems was the creation of what were called Safety and Progress Committees These committees were, according to Hoag's testimony, an other Bayliner innovation which had been tried out at two Bayliner's other plants in Arlington Washington, and Valdosta Georgia The U S Marine employee hand book, which I have found was modeled on the Bayliner handbook, was issued to all US Marine production workers as they reported to work on 23 January 1984 as The handbook under the heading Communication- Key to Understanding goes on to described the Safety and Progress Committee as follows 33 During all the events of 1985 Hoag was the sole effective manager involved By his own testimony he was in constant communication on labor relations matters with Bayhner management in Arlington Washing ton 94 I do not view this last as particularly important but it is in line with those matters which are important and serves as a compatible and con sistent link between Respondents prebargammg conduct and the negoti ations themselves 35 The handbook had been distributed to office and supervisory em ployees in the week of 16 January and applicants interviewed in that week were told about its contents by the Bayliner interviewers 688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All employees will have the opportunity to serve as a representative from their work area on the Safety and Progress Committee The committee meets on a regular basis to discuss in any open forum those ideas which will make your plant a better, safer and more enjoyable place in which to work In addition to employee representatives, senior management employees also attend the Safety and Progress Committee meetings Information concern ing U S Marine s goals and objectives are shared as well as progress toward meeting those goals and ob jectives Hoag supplemented this by describing the committee as a group of individuals who represent various people in the production areas of the plant, as well as the offices, and who meet regularly every 6 weeks to exchange in formation with management There are 11 work areas in the plant, and each is represented by an employee ap pointed by the area supervisor The employees are rotat ed in this representative function The area representa tive meets with the other employees in his or her area and questions are propounded by the employees to the representative, who writes them all down The represent ative s notes are then given to the area supervisor who may be able to handle some at his level Those which cannot be handled locally are sent up through manage ment channels and are typed and distributed to manag ers in different areas to answer Then, 2 weeks after the original meeting between the area representatives and the employees in the 11 work areas, there is a meeting be tween the area representatives and senior management The questions originally asked by the area employees, to gether with the answers prepared by management are distributed to the area representatives Additional infor mation on sales and other items considered by manage ment to be of interest is given to the representatives The meeting is then open to questions and discussions on any part of our operation, including problem areas em ployees feel cannot be discussed with their supervisor All these meetings, in the area as well as the plenary ses Sion are cumpulsory and are conducted on working time The subject matter of the meetings was shown by sev eral sets of minutes36 from February April May and July 1984 These show that the meetings were used as a forum for peptalks by Hoag on the Company s progress in selling outboard motors and included questions and answers on safety matters, but also on matters such as wages, hours, breaks, and lunch periods, subcontracting of maintenance work profit sharing hospitalization rest room rates of pay for daywork leaves of absences, and lunch schedules Despite protestations to the contrary such discussions continued after the district court s order of 10 May 1984 This committee was organized by the employer and its structure, nature and functions were proscribed by the 36 The General Counsel wanted to place in evidence a number of addi tional sets of these minutes I declined to receive them because they would be cumulative The General Counsel urges in his brief that I re consider but in view of my disposition of this issue I will stand by my original ruling employer Its meetings are conducted by supervisors Area representatives and employees are paid for time spent in these meetings On these facts it is apparent that as conceived, cre ated, and maintained by the Respondents the Safety and Progress Committee at U S Marine presents a classic ex ample of an employer dominated labor organization, Marshall Industries, 132 NLRB 1613 (1961) There is no allegation in this complaint of a violation of Section 8(a)(2), but on these facts, I find that the original and continuing recognition of the Safety and Progress Com mittee as a representative of its employees, constitute an interference with the rights guaranteed employees by Section 7 of the Act, and concomitantly a violation of Respondents duty to bargain with the Union, all in vio lation of Section 8(a)(1) and (5) of the Act 37 Hunter Douglas Inc, 277 NLRB 1179 (1985) Approaching the bargaining sessions themselves I per ceived from my observations of them as witnesses that the union negotiators, Griffin, Neff and Johnson, were conservative in the sense that they wanted to retain the outline and language of the Chrysler contract, with which they were familiar Beyond that I found them to be flexible on most issues but firm on fundamentals like union security seniority, and grievance procedures My observations of the management negotiators, Hoag and Personnel Director John Lombardo revealed two people with a quite different view of labor management rela tions I can sum up that attitude by describing it as con silting of roughly equal parts of arrogance innocence, and ignorance Arrogance in Hoag s pronouncements to the employees at the Safety and Progress Committee meetings, and as expressed in his stilted and condescend ing answers to some of their questions innocence in the remarks of both Hoag and Lombardo decrying the stub bornness of the Union as not seeing as clearly as they that with the employees corporation and the Company s good will, all would be well happy and prosperous, and ignorant in that neither Hoag nor Lombardo had any ex perience in the collective bargaining process or in the ne gotiation of collective bargaining agreements Hoag talked sometimes during the negotiations here as if he had a smattering of labor law, or that he was being ad vised by people who had a smattering of labor law but that smattering proved to be inaccurate Lombardo had some very peculiar ideas about the principles of exclu sive representation and the duty owed by employers to the exclusive representative of its employees Nowhere is this combination of artlessness and self justification more apparent than in a memorandum which Hoag prepared and circulated to Lombardo and Harvey Bulgnn 38 just before the start of the negotiations 3 7 Respondents conduct in continuing to recognize the Safety and Progress Committee and to deal with it on matters involving wages hours and conditions of employment seems to me at least disrespectful to the district court s 10 May 1984 order to bargain with the Union as well as to this agency 3 8 Bulgrin formerly plant manager for Chrysler and a holdover in that job for U S Marine for a short time participated to some extent in the negotiations but Hoag testified that he did not discuss the union propos all with Bulgrin His name appeared as attending all but one of the ses Continued US MARINE CORP 689 AIWA NEGOTIATIONS 1984 Philosophy We will seriously consider any matter which affects the wages hours, or terms and condi tions of employment of our hourly workers We are not interested in negotiating about mat ters which benefit the union as an institution or em ployees solely because of their positions in the union hierarchy 39 Current Position Our wages, benefits and terms and conditions of employment are contained within our employee handbook, insurance booklet, profit sharing booklet (soon to be available) and the de scnption of our progression plan We are satisfied that our employees are fairly compensated and pro vided with good benefits Table Manners We will employ them at all times in the negotiating process We will deal with all issues raised on a rational basis even if the issues appear irrational Perception Our employees and the NLRB should perceive our negotiating as bargaining in good faith Neither group should be able to be convinced that our positions are unreasonable Goal To achieve an accord acceptable to both management and the bargaining unit employees in a reasonable length of time This document shows in its first and last paragraphs, a predisposition, first to avoid any negotiations about mat ters of union security40 or questions about rights and privileges of union officers or stewards second, try to separate the Union as an institution from its membership This last observation is borne out by the matters I have outlined above the removal of the bulletin boards, the refusal to allow grievance investigations and processing by stewards, and the establishment and maintenance of the Safety and Progress Committee The second paragraph of this memorandum states clearly the fact that any variation from the documents cited there, the employee handbook the Company's in surance plan the Company's profit sharing plan and a progression plan would be a remote and improbable eventuality The note of self justification which I commented on above is clear in this second paragraph and prominent in the next two paragraphs approaching the questions of company conduct at the bargaining table and the percep tions of the Board with lordly condescension Again in the fourth paragraph it is apparent that Hoag is interest ed in the employees not the Union Turning, at last, to the negotiations themselves and taking into consideration all this substantial background I find that Respondents came to the table with a set pur pose of avoiding a long lasting relationship with this sions between May 24 and the end of September 1984 but there is no indication that he did anything said anything or had anything to do with the establishment or implementation of Respondents policy 39 Typical of Hoag s answers in this case was his response to a ques tion by the General Counsels about whether this quoted paragraph re ferred to union security matters No said Hoag but added not neces sanly 40 Hoag s equivocal denial notwithstanding Union which the Federal court had ordered them to sit down and negotiate with Hoag's statement at the second meeting that the contract if they negotiated one might be only temporary, depending on the outcome of the court proceedings, Hoag s refusal to meet more than once a week, saying this was about the best he could do with the other responsibilities he had 41 Hoag s statement at the 14 June meeting that U S Marine s employees did not need a Union, that they were supposed to have faith and trust in the Company, but Lombardo s statements concerning what he considered the anachronistic features of unions and the fact that union issues were not the hot issues in 1984, all bespeak an attitude on the part of these managers that would make an agreement difficult The negotiations began and ran from 24 May to at least 22 August, a total of seven meetings that were largely taken up with explanations by the union negotia tors of the Union s proposals It is not uncommon in the field of collective bargaining for one of the parties to come to the bargaining table with a new negotiator, un familiar with the collective bargaining history and the in formal relations between the parties A certain breaking in is something to be expected But in this situation both Hoag and Lombardo, obviously intelligent and compe tent people, but admitted amateurs both in the field of collective bargaining and in the informal relations be tween the Union and Chrysler, sought no advice from Bulgrin, who if he did not negotiate the Chrysler con tracts at least had something to do with their administra tion, or any other professional Hoag and Lombardo in effect told the Union, teach us about this contract you want us to agree to This task, even with a trained edu cator on one side, and open minded students on the other would be formidable enough, but working union representatives on one side and Hoag and Lombardo, carrying the burdens of their prejudices, on the other it is scarcely surprising that the Union's explanations of its proposals failed to prove persuasive A review of the minutes compiled by John Neff for the Union and John Lombardo for U S Marine shows that there was a lot of discussion over issues such as grievances time off for stewards and the 34 former Chrysler employees who were not hired and less con sistent and direct talk about the basic issues of wages and hours There was what I would call a lack of flow in the negotiations This flow or current describes the process of serious negotiations when both parties grasp an issue or series of issues and push them along, moving and conceding back and forth, until agreements are 41 Neither U S Marine nor Bayhner is a mom and pop operation They are both substantial corporations with substantial resources The fact that the Union was forced to dance attendance on Hoag s convenience in lieu of dealing with a competent professional in the field of labor relations indicates to me a rather cynical desire to hobble the collective bargaining process The fact as Hoag stated that he did not even consult with Harvey Bulgrin Chrysler s plant manager concerning the Union s pro posals which were based on the Chrysler contract shows me that Hoag was not really serious about the bargaining process Bulgrin apparently was fired by U S Marine in September or October 1984 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD reached There was none of this either in the testimony or in the notes submitted in evidence here 42 The Union had submitted a proposed contract on 24 May 1984, and, as noted, the parties entered into lengthy discussions on the meaning of each article The Compa ny countered these proposals with the suggestion that the Company s employee handbook serve as the collec tive bargaining agreement It was not until the 10th ses sion, on 22 August, that the Company submitted a partial proposal, consisting of 11 whole or partial articles, in cluding recognition, nondiscrimination, hours and over time vacation, and holidays, and a no strike clause The parties agreed at this meeting to delete Bayliner s name from the proposed agreement, and to the preamble of the agreement On 29 August, the parties agreed to a provision for nondiscrimination contained in both the company and union proposals, and Hoag agreed to union suggestions on the makeup of the union and company bargaining committees There were no agreements on 5 September, and on 12 September there was a tentative agreement on vacation schedules, but no agreement on other provisions of the vacation article as proposed by the Company There was an agreement on a no strike, no lockout clause, as pro posed by both parties On 19 August, the Company agreed to a union proposal for special union company meetings, to some provision for jury duty pay and a probationary period as proposed by the Company On 11 October the parties finally agreed to a recognition clause with certain exceptions as proposed by the Company and a provision for funeral leave The 17 October meet ing resulted in no progress toward solution of outstand ing issues, and on 25 October there were no substantial agreements on any proposals Hoag submitted a new set of proposals, which were rejected by the Union At this point the Union through Johnson, suggested that the parties call on a Federal mediator to help in working in an agreement Hoag rejected this He said that because the Union would not agree on two issues, seniority and union security, there was no sense in meet mg with the mediator The Company s last proposal of 25 October was imple mented on 21 January 1985 There were two additional bargaining sessions on 10 April and 15 May 1985, when the Union proposed modifications on its seniority and union security proposals These changes were rejected by the Company, and no further meetings had been held down to the time of this hearing In making my determination on the question of wheth er Respondents here engaged in hard but lawful and le gitimate bargaining or whether they merely went through the motions, not with any desire to make any accommodations or to come to agreement I have exam fined these negotiations in the framework of Respondents total conduct, beginning with the initial views of Edson 42I would point out also that this flow process can move around and past tough issues like union security or seniority in this case then return to reconsider those issues There was none of that in this case Hoag felt that because the Union would not agree to company demands on two issues the parties were at impasse and there was no sense in meeting with a Federal mediator and Hoag before the Respondents took over the plant that they had no intention of recognizing or bargaining with the Union, the immediate removal of the bulletin boards, the shackling of the union officers and stewards, and the establishment of the Safety and Progress Com mittee immediately on taking over in January 1984, the continual illegal activities of Respondents in using the Safety and Progress Committees to denigrate the Union and to serve as a bargaining and grievance forum bypass ing the Union, the fabrication of false and misleading production and employment statistics to avoid Respond ents lawful obligation to bargain,43 and the comments and statements disingenuously peppered throughout Lombardo s notes on the bargaining sessions that Jim Hoag said the employees did not need a Union, that he was never going to agree to union security, that the Company was not a collection agency for Union dues, ' and that the Company would not agree to union de mands that would interfere with production I have noted Hoag's manifesto on what the Company would not agree to, for philosophical reasons, and his satisfaction with the then current benefits provided in the employee handbook, and I note further that Hoag stood firm on his philosophy and on the Company s benefits throughout the entire negotiations, refusing even to con sider union security checkoff seniority (except in a very limited way), wages, holidays, vacations, and all other categories of employee benefits The record of what transpired at the bargaining ses sions did not show any dedication by management to the collective bargaining process Not only was there no `flow or current" to the negotiations, there were spe cial manifestations of smugness and self satisfaction ex pressed by Hoag and Lombardo which inevitably tended to disrupt the meeting into a welter of mutual charges and recriminations Likewise the company officials re fused to give relevant information to the Union both before and during the negotiations Although this is dis cussed infra, as a separate area of alleged violation of law, it is applicable in this context here as a part of the total picture of Respondents conduct and attitude toward the bargaining process The same attitude prevailed in the Company s treat ment of the Union in connection with holiday shutdowns of the plant The Union was notified, but only at the same time as all other employees, and the Union's re quest to bargain about at least the Christmas shutdown, was summarily rejected In Lombardo s view, the Union was in the same position as any other outside organiza tion, and entitled to no more consideration This is un derstandable only in view of Lombardo s fancy that a union may be an exclusive representative of employees for some things and not for others The Company s cava her rejection of the Federal Mediation and Conciliation 42 As a postscript to this element I might also note the empty and un supported claim that U S Marine and Baylmer are separate and mde pendent employers even though information on this fact was and is par ticularly and exclusively within the knowledge of the Respondents US MARINE CORP Services help in resolving the problem is indicative that the Company did not want to solve the problem at all 44 In consideration of all these reasons , the totality of Re spondents conduct, together with its firm purpose, de cided before any negotiations began , that union security would not be considered, and its termination , before ne gotiations began , that its substantive benefits were satis factory and adequate for the employees, and its consist ent adherence to these positions right down to the end, I find that Respondents have engaged in surface bargain ing, with no real intention to reach an agreement with the Union, all in violation of Section 8(a)(1) and (5) of the Act 4b NLRB v Reed & Prince Mfg Co, 205 F 2d 131 (1st Cir 1953), Chevron Chemical Co, 261 NLRB 44 (1982), NLRB v A 1 King Size Sandwiches, 732 F 2d 872 (11th Cir 1984) G Additional Complaint Allegations It follows from the findings already made that the Re spondents had a duty to bargain with the Union from and after January 23, 1984, and that by refusing to give information including names and addresses of all employ ees hired in the bargaining unit I have found to be ap propnate, job titles and wages, together with copies of any handbooks or manuals describing employee benefits, Respondents have further violated Section 8(a)(1) and (5) of the Act The information requested is obviously rele vant to the Union s duty to act as bargaining representa tive for all employees in the unit Respondents have of fered no reason why preparation of this information is burdensome in any way 46 Whitin Machine Works, 108 NLRB 1537 (1954), Pfizer Inc, 268 NLRB 916 (1984) The complaint listed several incidents of unilateral changes in terms and conditions of employment institut ed by Respondents without providing notice to, or offer ing to bargain with the Union These were layoffs of employees during the Thanksgiving and Christmas holi day weeks granting a wage increase to employees effec tive 21 January 1985 and individual bargaining with em ployees since 5 November 1984 regarding which em ployees should work during the 1984 Christmas and Thanksgiving layoffs All the facts on these matters were admitted by Hoag and Lombardo The wage increase was a part of the im plementation of the Respondents last offer made on 25 October 1984 But I have found that the whole of Re spondents' conduct during the negotiations was a show 44 I note also that the Company s declaration of impasse based ac cording to Hoag on the fact that he did not believe that the Union would agree to the union security and seniority provisions offered by Re spondents was premature but in view of the totality of conduct here any remedy for the former would merge in that I am recommending for the latter In such a case however any changes unilaterally implemented were unlawful as well NLRB v Herman Sausage Co 275 F 2d 229 (5th Cir 1960) 45 In view of these findings I take no position on the question of whether Respondents insistence on using an awkward and cumbersome Wisconsin statute in place of a customary arbitration clause and their in sistence contractually on limiting the right of the Union to discipline or fine its members constituted additional evidence of bad faith Cf Bouut to s Inc 277 NLRB 977 (1985) 46 Hoag s cynical comment that the Union could obtain payroll infor mation from employees does not raise a question of Respondents ability to make this information readily available 691 and a pretense, entered into and continued from May to October 1984 with no real intent to enter into any agree ment In these circumstances, Respondents are not free to walk away from their obligations to bargain in good faith by pleading an impasse in a process indelibly tainted by an extended and grievous course of conduct which I have found violative of the law Thus, I find that the failure to bargain over the Christmas and Thanksgiving layoffs in 1984 and the wage increase in January 1985 are independent violations of Section 8(a)(1) and (5) 47 A final allegation in the complaint charges that on 10 November 1984, Lombardo told an emnloyee, Richard Powers that if U S Marine even had to observe seniori ty in job transfers or layoffs, US Marine would no longer operate the plant Lombardo remembered the conversation with Powers, but denied making the threat that U S Marine would move if they had to observe se nionty in layoffs and transfers I found Lombardo to be a credible enough witness, albeit arrogant and naive in his approach to unionism in general and this Union in particular I therefore credit his denial that he made such a threat IV THE REMEDY Having found that the Respondents have violated Sec tion 8(a)(1) and (5) of the Act, I shall recommend that they cease and desist therefrom, and that they take the following affirmative action designed to effectuate the policies of the Act I will recommend that Respondents be required to bargain collectively in good faith with the Union over wages, hours, and terms and conditions of employment for employees in the following bargaining unit All full time production and maintenance employees of the Hartford Wisconsin plant, except executives, office and clerical workers, salesmen, shop superintend ents, supervisors engineers, nurses first aid attendants, guards, temporary summer/seasonal employees any em ployee in training for the foregoing, and all other em ployees having the right to hire and discharge Such bar gaining in good faith shall commence immediately on the request of the Union and shall continue until an agree ment is reached, or a legitimate impasse occurs I will further recommend that Respondents cease and desist from making unilateral changes in wages, hours and working conditions, and that they shall be ordered to bargain collectively and in good faith over all changes in such wages hours and working conditions which have been made and implemented by Respondents since Re spondents began operations at the Hartford, Wisconsin plant on 23 January 1984 I shall recommend that Respondents immediately fur nish the Union with the information heretofore request ed and also furnish information legitimately required for collective bargaining or grievance processing as request ed by the Union in the future 41 I leave to the compliance stage of these proceedings the question of further unilateral changes in wages hours and working conditions The taint I have found in the bargaining process may well affect further ac tions of Respondents even though I decline to reopen this hearing to re ceive additional evidence on these matters 692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I shall recommend that Respondents immediately cease and desist from dealing with the organization known as the Safety and Progress Committee, that they hold no further meetings of the committee and that they cease and desist from paying employees to participate in any meetings of the committee Because of the serious nature of the unfair labor prac tices here found and the disregard shown by Respond ents to the fundamental rights of their employees, I find it necessary to recommend the issuance of a broad order requiring Respondents to cease and desist from infringing in any other manner on rights guaranteed employees by Section 7 of the Act Hickmott Foods, 242 NLRB 1357 (1979) For the same reasons, I shall recommend in my Order a visitatorial clause as requested by the General Counsel CONCLUSIONS OF LAW 1 Respondent U S Marine Corp and Bayliner Marine Corporation are employers engaged in commerce, and are a single employer within the meaning of the Act 2 The International Union, Allied Industrial Workers of America AFL-CIO, and its Local Union 879 are labor organizations within the meaning of the Act 3 All full time production and maintenance employees at the Hartford Wisconsin plant, except executives office and clerical workers, salesmen shop superintend ents supervisors, engineers, nurses, first aid attendants, guards temporary summer/seasonal employees any em ployee in training for the foregoing and all other em ployees having the right to hire and discharge, is an ap propriate unit for bargaining within the meaning of the Act 4 Respondents have violated Section 8(a)(1) and (5) of the Act by refusing to recognize the Union, by refusing to give information to the Union by bargaining in bad faith with the Union, and by unilaterally implementing changes in wages, hours, and conditions of employment without bargaining in good faith with the Union, and by bargaining individually with employees 5 Respondents have violated Section 8(a)(1) and (5) of the Act by establishing and bargaining with Safety and Progress Committee 6 Respondents have not violated the Act in any other manner [Recommended Order omitted from publication ]