Seascape Golf Course

SEASCAPE GOLF COURSE American Golf Corporation d/b/a Seascape Golf Course and General Teamsters, Packers, Food Processors and Warehousemen Union, Local 912, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO and Hotel Employees, and Restaurant Employees International Union, Local 483, AFL-CIO. Cases 32-CA-8612 and 32-CA-8892 June 12, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 21, 1988, Administrative Law Judge James S. Jenson issued the attached decision. The Respondent filed exceptions' and a supporting brief, and the General Counsel filed 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, 2 and ' The Respondent also filed a motion to reopen the record to introduce evidence concerning the Union's posthearing acceptance of the Respond- ent's offer to recognize and bargain with the Union and the parties' sub- sequent agreement concerning starting wage rates Pursuant to Sec 102 48(d)(1) of the Board's Rules and Regulations, the Respondent's motion is denied because the additional evidence, if adduced and cred- ited, would not require a different result See fn 3, infra No exceptions were filed in Case 32-CA-8892 2 Respondent, a California corporation with its headquarters located in Santa Monica, California, owns and operates golf courses in California During the past calendar year, the Respondent, in the course and con- duct of its business operations, derived gross revenues in excess of $500,000, and purchased and received goods valued in excess of $5000 which originated outside the State of California The parties admitted, and the judge found, that the Respondent is an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act 3 We agree with the judge that a make-whole order restoring the status quo ante is warranted under State Distributing Co, 282 NLRB 1048 (1987) The Respondent argues that, based on posthearing recognition and bargaining which has resulted in an agreement on starting wage rates identical to those unlawfully imposed, a bargaining order is not needed and its backpay liability should be tolled Dependable Maintenance Co, 274 NLRB 216 (1985), on which the Re- spondent relies, is distinguishable In Dependable Maintenance the changes in the terms and conditions of employment were on the bargaining table prior to the company's unlawful unilateral implementation of them, and the Union allegedly continued to bargain to impasse despite the compa- ny's unfair labor practice The Board remanded the case to the judge to determine whether the parties had bargained to impasse subsequent to the unlawful changes and, if so, what effect that might have on the status quo restoration remedy In the present case, the Respondent's unlawful conduct began some 9 months before it recognized the Union and 11 months before bargaining began This is not, as in Dependable Maintenance, a matter of prematurely implementing unilateral changes before an already-recognized union could formulate proposals and before a valid impasse could be reached The Respondent here took advantage of its unlawful failure to hire em- ployees of the predecessor employer and recognize the Union and insti- tuted new terms and conditions of employment which it forced on the employees with no regard for their bargaining representative Further, the Respondent proffers no evidence of the parties' having reached final 881 conclusions3 and to adopt the recommended Order as modified.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, American Golf Corporation d/b/a Seas- cape Golf Course, Aptos, California, its officers, agents, successors , and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(c). "(c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the following for paragraph 2(d). "(d) On request of the above Union , retroactive- ly restore the terms and conditions of employment that existed immediately before its takeover of the Aptos Seascape Corporation operations, including wage rates and benefit plans, and make the employ- ees whole by remitting all wages and benefits that would have been paid in the absence of unlawful changes, from December 22, 1986 , until it negoti- ates in good faith with the Union to agreement or to impasse. The remission of wages shall be com- puted as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd . 444 F.2d 502 (6th Cir. 1971), plus interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Re- spondent shall remit all payments it owes to the employee benefit funds and reimburse its employ- ees 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 agreement on wage rates for new employees Under these circumstances, the bargaining that has taken place cannot be reliably equated with bar- gaining that reaches impasse or agreement after commencing with timely recognition of the bargaining representative and without unilateral reduc- tion of existing terms and conditions Hence, we are not convinced that, without initial restoration of the status quo ante, the parties can be re- stored to the position they would have occupied but for the unlawful conduct Cf NLRB v Cauthorne Trucking, 691 F 2d 1023 (D C Cir 1982) Member Cracraft agrees that the facts of this case are distinguishable from those in Dependable Maintenance However, she does not pass on whether she would have reached the same result in the case The judge, in his Conclusions of Law, inadvertently cited January 6, 1987, rather than December 22, 1986, as the date the Respondent unlaw- fully refused to recognize the Union ° We have reviewed the judge's recommended Order under the stand- ards set forth in Hickmott Foods, 242 NLRB 1357 (1979), and we have decided to substitute narrow cease-and-desist language for the broad lan- guage provided for by the judge Par 2(d) of the judge's recommended Order is also modified to specifi- cally provide as part of the make-whole remedy that the Respondent shall remit payments it owes to the employee benefit funds and reimburse employees for any expenses resulting from its failure to make such pay- ments in the manner set forth in Kraft Plumbing & Heating, 252 NLRB 891 (1980), enfd 661 F 2d 940 (9th Cir 1981) 294 NLRB No. 79 882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the Respondent's failure to make these payments. Any amounts that the Respondent must pay into the benefit funds shall be determined in the manner set forth in Merryweather Optical Co., 240 NLRB 1213 (1979)." 3. Substitute the attached notice for that of the administrative law judge. 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 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 hire employees previous- ly employed by Aptos Seascape Corporation be- cause of their union affiliation or to avoid an obli- gation to bargain with the General Teamsters, Packers, Food Processors and Warehousemen Union, Local 912, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. WE WILL NOT fail to recognize and bargain with this Union as the exclusive collective-bargaining representative of the employees in the following unit, including by making changes in the rates of pay and benefits or other terms and conditions of employment of the employees in this unit without notice to and consultation with the Union: All full-time and regular part-time grounds- keepers, mechanics and foremen employed at our Seascape Golf Course Facility, excluding all other employees, managerial employees, office clerical employees, guards, and supervi- sors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize and, on request, bargain with the Union, as the exclusive representative of our employees in the above unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody the under- standing in a signed agreement. WE WILL, on request of the Union, retroactively restore the terms and conditions of employment that existed immediately before our takeover of the Aptos Seascape Corporation operations, including wage rates and benefit plans. WE WILL make the employees in the above unit whole by remitting all wages and benefits that would have been paid in the absence of unlawful changes from December 22, 1986, until we negotiate in good faith with the Union to agreement or to impasse, with interest. WE WILL remit any payments we owe to benefit funds and reimburse our employees for any ex- penses resulting from our failure to make the re- quired payments. WE WILL offer to employees formerly employed by Aptos Seascape Corporation at the golf course maintenance facility immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and dis- charging if necessary other employees who have been hired in their place, and WE WILL make them whole for any loss,of earnings, plus interest. AMERICAN GOLF CORPORATION D/B/A SEASCAPE GOLF COURSE Charles H. Pernal Jr., for the General Counsel. Daniel F. Fears and Howard Hay (Paul, Hastings, Jan- ofsky & Walker), of Costa Mesa, California, for the Re- spondent. Henry Celis, of Watsonville, California, for Local 912. Eugene Miller (Miller & Sincoff), of Seaside, California, for Local 483. DECISION STATEMENT OF THE CASE JAMES S . JENSON, Administrative Law Judge . I heard these cases in Santa Cruz, California, on October 6, 7, and 8, 1987, pursuant to complaints which were issued on March 13 , 1987,1 in Case 32-CA-8612, and on August 31 in Case 32-CA-8892. On September 1, the cases were consolidated for hearing . The complaints both allege the Respondent is the successor to Aptos Seascape Corporation whose employees it refused to hire because of their union membership in violation of Sec- tion 8(a)(3). Section 8(a)(5) is alleged to have been violat- ed in both cases by the Respondent's withdrawal and withholding of recognition from the respective Unions, and by making numerous changes in the terms and con- ditions of employment of employees in the separate units ' All dates are in 1987 unless stated otherwise SEASCAPE GOLF COURSE represented by the respective Unions, without prior notice to the Unions. The complaint in Case 32-CA- 8892 also alleges as a violation of Section 8(a)(1), that one of Respondent's supervisors informed an employee that he had not been hired because of his past union membership. The Respondent admits in Case 32-CA- 8612 that it unlawfully refused to consider the predeces- sor's employees, but that when the violation came to the attention of its counsel, immediate steps were taken to correct it, including an invitation for job interview and the hiring of the nonsupervisory employees who applied. As Respondent has voluntarily recognized the Teamsters in that case, it is claimed that the only issue is the period of backpay for which it is liable. As an affirmative de- fense, the Respondent argues that it had the right to set the initial terms and conditions of employment in both cases. It also denies the commission of all unfair labor practice allegations in Case 32-CA-8892. All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. A brief was, filed by the General Counsel, separate briefs in each case were filed by Respondent, and all have been carefully considered. On the entire record in the cases, including the de- meanor of the witnesses, and having considered the posthearing briefs, I make the following FINDINGS OF FACT 1. JURISDICTION It is admitted and found that the Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED It is admitted and found that Local 912 and Local 483 are each labor organizations within the meaning of Sec- tion 2(5) of the Act. A. The Setting American Golf Corporation d/b/a Seascape Golf Cor- poration is engaged in the management of 97 golf courses, approximately 20 of which it owns. In late 1986, Respondent began negotiations for the purchase of a golf course and restaurant facility in Aptos, California, from Aptos Seascape Corporation, the facility involved in these matters.2 Prior to December 22, 1986, the date Re- spondent took possession of the facility, the Aptos Seas- cape golf course employees were covered by a collec- tive-bargaining agreement with Teamsters Local 912 for a term commencing July 1, 1986, to June 30, 1989, and the restaurant employees were covered by one with Res- taurant Employees Local 483 for a term commencing October 1, 1985, to September 30, 1989. The record es- tablishes that while the golf course continued uninter- ruptedly when Respondent took over, the restaurant fa- cility was closed for several months for repairs and re- furbishing. Employees of both facilities were terminated 2 The primary owner of Aptos Seascape Corporation was the Team- sters Pension Fund 883 by the prior management as of December 21,-and invited by Respondent to apply for employment with it. David Price is Respondent's principal shareholder and chairman of its board of directors. Bruce Pluim is Respondent's general manager and in charge of the entire Aptos ' facili- ty. Dan Ross is regional manager and directly over him. Mike McCraw, previously Respondent's regional golf course superintendent in Palm Springs , became golf course superintendent of the Aptos golf facility when Respondent took over on December 22, 1986. Ken Sakai is Respondent's regional superintendent for its Northern California golf courses, which includes the Aptos golf course. Paul Lloyd was the golf course superintendent for Aptos Seascape Corporation until McCraw assumed that position on December 22. Frank DeSarno was Re- spondent's food and beverage director' from January 26 until May 21, and was responsible for hiring employees for the restaurant facility when it reopened. Mary Aubert, who had been dining room supervisor and co- banquet coordinator for the previous owner, was hired by Respondent as banquet coordinator DeSarno relied on her recommendations with respect to which former restaurant employees would be hired. Stephen Long, an independent contractor, conducted security interviews and administered polygraph tests on applicants for em- ployment in the restaurant. B. The Golf Course, Case 32-CA-8612 In November 1986, during negotiations for the pur- chase of the Aptos facility, Price went to Aptos where he met with Lloyd, who showed him around the golf course facility for the first time Lloyd testified he had heard a rumor to the effect that everyone was going to be terminated and asked Price if that was true. Accord- ing to him, Price responded in the affirmative but stated that he (Price) would "be able to hire back less than half of our original employees " Asked why, Price is purport- ed to have stated, "Because of the Teamsters Union" and the fear that if they brought back everybody, "they would reorganize-." Lloyd claimed he told Price that the employees were willing to stay on for less money if they could keep their jobs, and that Price responded they were going to stay with the original plan. Lloyd testified that he also asked about the restaurant employ- ees since his daughter worked there, and that Price re- sponded, "Well, the same thing is going to happen there: we can only hire back less than half of the employees, for the same reason." He acknowledged on cross-exami- nation that an affidavit he gave a Board agent on Janu- ary 23, 1987, did not contain that information. He claimed, however, that he had told the Board agent about Price's statement regarding the restaurant, but that she said, "Someone else would be handling that part of the case." I find that incredible, especially in light of the fact the charge involving the restaurant was not filed until May 1, over 3 months later. Accordingly, I do not credit his testimony that the restaurant was discussed. Lloyd testified he asked what he was supposed to do when the takeover occurred since he was only supposed to hire half the golf course maintenance crew, and that Price told him that "more than likely .. . we will be 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bringing in people from other golf courses to help you out until we can get settled; until the dust settles." Ac- cording to Lloyd, he went on to tell Price that the Teamsters had allowed him, the general manager and the controller, to join the Umon so they could have the Teamsters' benefit program, and that Price responded he didn't think that would be a problem. Lloyd testified that Price expressed pleasure with the condition of the golf course, indicated they wanted him to stay on and that he would be hearing from Sakai in a couple of weeks. He testified that about 3 days before the takeover, he heard a rumor from a salesman that someone else was going to be the course superintendent, so he called Sakai who stated that when Price had reported he was a union member, he was "voted out" and "that was the only reason." Sakai did not testify. Thus, Lloyd's testimony regarding Sakai's statements are unrefuted and credited. Price testified that he had inspected financial data on the facility in mid-1986 and concluded it was a very poor operation, but that he felt that if American Golf could put in its own system and management team, upgrade the facility in terms of repair and maintenance, pay competi- tive wages and benefits consistent with the area, and market properly to the customer, that it could be a suc- cessful operation.3 He testified that he was not involved with who was hired at Aptos, but that the normal prac- tice is to bring in management talent and experienced workers from other facilities, and to institute a uniform policy and training program. He denied he had any in- volvement in whether Lloyd or any of the maintenance or restaurant employees were hired, or that he told Lloyd it was the policy not to hire a majority of a prede- cessor's employees. He testified that Lloyd had asked if he was going to be retained as superintendent and that he told Lloyd that as far as he knew, Lloyd was, but that he doubted all of the maintenance crew would be because it was winter and it was company custom to have a winter core crew which was supplemented in the summer by part-time workers, and they had a number of American Golf personnel which they planned to transfer in. He claimed that the decision to transfer McCraw from Palm Springs had not yet been made. He also denied he stated he was favorably impressed with the condition of the golf course or that he commented on the quality of work performed by the golf course mainte- nance crew. He also denied Lloyd said anything about the maintenance crew being willing to work for lesser wages. I have carefully compared and weighed the testimony of both Price and Lloyd and have taken into account the probabilities involving matters about which they testified and their demeanor on the witness stand. As noted before, I find incredible Lloyd's testimony that a Board agent was not interested in memorializing Price 's alleged statement-that less than half the restaurant employees 8 A wage survey of other golf courses in the area, which was prepared by Lloyd, and collective-bargaining agreements at golf courses operated by Respondent disclose the hourly groundskeeper wage rate at Aptos was approximately $2 higher than the other golf courses The Aptos Seascape contract also called for a $1000 annual bonus per employee during its 3-year term See G C . Exh. 4 which shows the low rate for groundskeeper at one golf course was $6, or $4 35 below the Aptos rate would be hired back because of the Umon-on the ground "someone else would be handling that part of the case." I do not believe a Board agent would reject such strong evidence of animus if it was actually mentioned. The Board agent's purported response is further unlikely since a charge involving the restaurant was not filed until several months later and any union animus would have been relevant to this case. Lloyd admitted on cross- examination that he was angry with Price, and I am con- vinced he tailored his testimony in an effort to paint Re- spondent in as unfavorable a picture as possible. Thus, I do not believe Price told him that Respondent would only hire back less than half the golf course employees because of the Teamsters Union. I am convinced Lloyd's testimony was strongly biased in a desire to retaliate against Respondent for failing to keep him on as the golf course superintendent. In sum, I am convinced that Price is the more credible witness. Accordingly, where their testimony is in conflict, I credit Price's version over that of Lloyd's. On December 22, 1986, Respondent took over oper- ation of the entire facility. As noted, McCraw, formerly regional golf course superintendent in Palm Springs, became the golf course superintendent at Seascape. In addition, three experienced golf course employees were transferred to there from nearby courses, John Betz as assistant superintendent, Tom Maltman, whose wage was $9 per hour, and Ken Tims, who earned $6.75 per hour. These men were to begin upgrading the golf course to American Golf standards.4 The Respondent immediately instituted what it characterized as wages competitive in the area-lower than those in the predecessor's Team- sters contract-and put into effect the same policies and benefits, including insurance, holidays, vacations and uni- forms, which were standard at its other golf courses. From December 30, 1986, through February 9, five golf course maintenance jobs were filled by new hires at $7 per hour. Respondent admits that McCraw did not con- sider the predecessor employer's employees for the five openings because of their union membership. Upon learn- ing from company counsel that this conduct was unlaw- ful, McCraw mailed the following letter to all of the golf course maintenance employees formerly employed by Aptos Seascape: We anticipate having some full-time openings for greens keepers at the Seascape Golf Course in the near future. If you wish to be considered for any of these openings, you must come in for an employment interview on either February 18 or February 20 be- tween 9:00 am and 11:00 am. If you cannot come in for an interview on either of these dates, but could be available some other date prior to the 20th, please advise us. If you are interested and do apply, we assure you that you will be fairly considered. If we do not hear from you by February 18th at 9:00 am, we will 4 It appears that Betz and Tims returned to their former locations on January 14 and 23 respectively. SEASCAPE GOLF COURSE assume you have no interest in employment at Seas- cape at this time. Please give Barbara a call at 688-3276. Sincerely, /s/ Mike McCraw Mike McCraw Superintendent He testified that while he did not feel they had openings for everyone, Respondent was willing to exceed staffing requirements and "bite the bullet on labor costs in order to be legal." Pablo Picasso (a witness for the General Counsel) was interviewed on February 18, was offered a job as an irrigator, and commenced work on March 4 at a wage rate of $7 an hour. John Machado was inter- viewed on February 18, was offered a job and com- menced working on March 17 for $7 an hour. Manuel Cuellar was interviewed on February 20, was offered a job and started working on March 16 for $7 an hour. John Romantic, who had been employed by Aptos Seas- cape as a mechanic, was interviewed on February 18 and offered a full-time job, part time as a mechanic and part time cutting grass at the rate of $7 per hour. He declined the offer because he felt the pay was too low and be- cause he had found a better job paying $9 per hour. Gene Lanthier had been employed as a groundskeeper and had run the fairway mowers for many years. He was interviewed on February 20 and offered a job as a sec- tion person at $7 per hour, which Lanthier declined. McCraw testified Romero Lopez had been a night irriga- tor, that when Lopez appeared for an interview, he had trouble communicating with him since Lopez did not speak a lot of English; that he asked Lopez if he was aware of the immigration reform act which required that he provide the Respondent with certain documentation; that he offered Lopez a job commencing the following day, but that Lopez never showed up. It appears from the record that John Oneto was offered a job on Febru- ary 27; that he was to let McCraw know one way or the other by March 3, which he failed to do; and that McCraw sent him a letter stating he was offering the job to another person. William Robb also declined a Febru- ary 26 job offer because he had secured another one. While McCraw testified interview letters had been sent to Mark McManus and A. L. Solorio, neither man was interviewed McManus testified he never received his. It was returned unopened to the sender as "unclaimed." Francisco Picasso is alleged in the complaint as a discri- minatee. Respondent 's second affirmative defense in Case 32-CA-8612 alleges he was a supervisor within the meaning of Section 2(11) of the Act. Thus, while the General Counsel was on notice that his status as an em- ployee or supervisor was an issue, Francisco was not called as a witness , nor was Lloyd, who presumably had knowledge on the subject, queried regarding his author- ity. Accordingly, McCraw's uncontested testimony on the issue is credited. McCraw testified that he told Fran- cisco that there was a job as "section person" available and explained what it was. Francisco's response was to the effect that "he was the ramrod of the crew, he set the daily schedules, he did disciplinary action and also did some of the hiring" for the prior employer; "that he 885 was not interested in a position that was anything other than either a foreman or assistant superintendent or something in the supervisory capacity, and that, also, he was not interested in a job that would pay less than, I think he said $10 an hour, I don't know if it was $10 an hour or what he formerly made there." As his employ- ment by the predecessor was as a supervisor , and as a nonsupervisory position with Respondent was not ac- ceptable to Francisco, Respondent's failure to hire him was not unlawful. Position of the Parties The General Counsel contends that Respondent is a successor employer to Aptos Seascape Corporation, and that while under Burns,5 a successor is ordinarily free to set initial terms and conditions of employment on which it will hire employees of a predecessor, an employer loses that right where, as here, it failed to hire the prede- cessor's employees because of their union affiliation in violation of Section 8(a)(1) and (5). As Respondent ad- mittedly changed terms and conditions of employment without bargaining with the Teamsters, it is appropriate to restore the status quo ante. It is also argued that in view of the unilateral action, the February offers to hire some of the former employees were not unconditional and unequivocal offers to return. Thus, while Respond- ent's offers might arguably offset backpay, they do not constitute valid offers of reinstatement and were ones which the employees were privileged to reject under the circumstances. It is also argued that while the Respond- ent offered to recognize and meet with the Teamsters a few weeks prior to the hearing, the offer was inadequate since it gave the Teamsters reduced bargaining leverage in light of the changes in terms and conditions of em- ployment and the requirement of restoring the status quo ante is not met. Respondent contends that under Burns, it had the right to establish initial terms and conditions of employment on December 22, 1986, when it took over the golf course, transferred the employees, and implemented wages competitive with other golf courses in the Bay Area and benefits and policies which are standard at all its golf courses. It is argued that under Spruce Up Corp., 209 NLRB 194 (1974), "where the employer is willing to employ the former employer's employees but only on the new employer's initial terms and conditions of employ- ment, it cannot be assumed that the majority of the pred- ecessor's employees will accept employment on those terms Thus, the `perfectly clear' exception in Burns does not apply and the employer is free to set its initial terms and conditions of employment before bargaining with the Union." It is argued that it cannot be found in this case that it is "perfectly clear" that a majority of the prede- cessor's employees would have accepted job offers at the substantially lower rates that it set even if all had been offered jobs on December 22. It is contended that the only job openings the Company had from December 30 through February 10 were five openings filled by new hires, and that it made job offers to every former em- 5 NLRB v Burns Security Services, 406 U S 272 (1972) 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployee by February 25, which demonstrates the Compa- ny's good-faith offer to remedy the "refusal to consider" violations which occurred for the five openings which had arisen. It is claimed that the proper remedial order in this "unique case" is a backpay award in favor of five of the predecessor's employees, presumably based on se- niority, for the five openings filled between December 30 and February 9, continuing to February 28, the day by which all employees had-either accepted or rejected the Company's offers of employment. Inasmuch as Respond- ent has agreed to recognize the Teamsters Union as the representative of its golf course maintenance employees, it is argued there is no need for a bargaining order. Discussion It has been admitted and is found that until December 21, 1986, all full-time and regular part-time grounds- keepers, mechanics, and nonsupervisory foremen em- ployed by Aptos Seascape; excluding all other employ- ees, managerial employees , office clerical employees, guards, and supervisors as defined in the Act, constituted an appropriate collective-bargaining unit, and that the Teamsters Union was the recognized collective-bargain- ing representative of the employees in that unit. It has also been admitted and is found that at all times since December 22, employees in the same described unit em- ployed by Respondent, constituted an appropriate unit. At the hearing, and in its brief, Respondent admitted, and it is found, that it failed to consider the Aptos Seas- cape golf course maintenance employees because of their union affiliation, and that such conduct was unlawful. It is further admitted and found that before, on and after December 22, Respondent made numerous changes in terms and conditions of employment without notice to, or affording the Teamsters Union an opportunity to bar- gain on those matters. It is denied, however, that Re- spondent was under a duty to first bargain with the Teamsters. The Respondent seems to claim that there were no job openings available for Aptos Seascape employees until December 30 since it had transferred in three employees on December 22 and did not hire any other outside em- ployees until December 30. The evidence, however, proves otherwise. Two of the three transferees were clearly temporary employees and were used as a stopgap measure to take care of the golf course until Respondent could carry out its unlawful plan to hire other nonunion employees instead of the former Aptos Seascape employ- ees represented by the Teamsters Union.6 Accordingly, it is found that its unlawful refusal to hire was initiated with the beginning of its taking over the golf course on December 22. It is, therefore, apparent that but for Re- spondent's unlawful conduct, the Union's status as the exclusive collective-bargaining representative would have survived Respondent's takeover of the golf course. This, together with Respondent's continued operation of the golf course at the same location, serving the same cli- entele, with basically the same jobs under the same con- ditions, except that wages and benefits had been changed 6 One transferee was gone by January 14 and the other by January 23, 1987 in violation of the Act, and providing the same services to the public, compels a finding that Respondent is a legal successor to Aptos Seascape with respect to its bar- gaining obligation to the Teamsters Union As the court stated in Love's Barbeque Restaurant No. 62 v. NLRB, 640 F.2d 1094, 1100 (9th Cir. 1981), enfg. in pertinent part 245 NLRB 78 (1979). When employees have a collective bargaining agreement and a change in ownership occurs, the new owner must recognize and bargain with the employees' union if the new owner is found to be a "successor employer." NLRB v. Edo, Inc., 631 F.2d 604, at 606-607 (9th Cir. 1980); Bellingham Frozen Foods, Inc. V. NLRB, 626 F.2d 674, 678 (9th Cir. 1980). The new owner is a successor employer if. (A) the employer conducts essentially the same business as the former employer, and (B) a majority of the new employer's work force are former em- ployees or would have been former employees absent a refusal to hire because of anti-union animus. Id.; Pacific Hide & Fur Depot, Inc. v. N.L.R.B., 553 F.2d 609, 611 (9th Clr. 1977). Having found that Respondent unlawfully refused to hire Aptos Seascape golf course employees, and is the legal successor to Aptos Seascape Corporation with re- spect to its bargaining obligation with the Teamsters Union, it follows that Respondent unlawfully refused to recognize and bargain with the Teamsters in violation of Section 8(a)(5) and (1) of the Act. As the Board stated in Shortway Suburban Lines, 286 NLRB 323, 328 (1987), "[W]e acknowledge that a successor employer is ordinar- ily free to set initial terms on which it will hire the pred- ecessor's employees. This rule does not apply, however, when the successor has unlawfully failed to hire those employees because of their union affiliation . [Respond- ent], therefore, was not entitled to set the initial terms of employment without first consulting with the Union. [See Love's Barbeque Restaurant No. 62, supra, 245 NLRB at 81-82.]" Accordingly, it is found that Re- spondent has violated Section 8(a)(5), (3), and (1) as al- leged in the complaint, with the exception that the refus- al to offer a supervisory job to Supervisor Francisco Pi- casso was not unlawful. C. The Restaurant, Case 32-CA-8892 The General Counsel contends that "the prima facie case established with respect to the Teamsters also estab- lishes the prima facie violation with respect to the Res- taurant Employees Unit," and that I "should reject Re- spondent's nonsensical argument that the animus which is applicable to its failure to hire the Teamster members does not also apply with respect to its failure to hire former unit members of the Restaurant Employees Union " In Kessel Food Markets, 287 NLRB 426 (1987), involving two separate units (meat and nonmeat), which were represented by two separate unions, the Board stated at footnote 16, that "we believe that alleged dis- crimination against unit employees and alleged successor= ship must be analyzed in each unit separately." Where, as here, there are separate units and unions involved , hiring SEASCAPE GOLF COURSE decisions were made more than a month apart, independ- ently of each other, by different personnel and, as is shown hereafter, there is a total lack of credible evidence of animus or unlawful intent or conduct on the part of the Respondent in the restaurant unit, it is appropriate to consider the restaurant case on its own merits. On December 1, 1986, an official of Restaurant Em- ployees Local 483 wrote Price, congratulating him on the purchase of the Aptos Seascape facility and stating, in substance, that it had represented the workers there for many years and requesting that Price contact him Price responded with the following letter dated Decem- ber 10: Thank you for your letter of 1 December 1986. It is correct that I presently am seeking to pur- chase the Aptos Seascape Golf Course, but the pur- chase has not yet been completed. No final decisions have thus far been made with regard to the operation of the Seascape restaurant and banquet facility. It is my expectation that our marketing people will evaluate the entire facility and its place in the Aptos area dining market before making a final recommendation as to how to best serve the dining public. This, in return, will prob- ably necessitate some remodeling of the kitchen and dining areas. For those reasons, it is presently our intention to close the Seascape restaurant as soon as we assume ownership in order to facilitate this mar- keting evaluation and remodeling. Once the remodeling is nearing completion, we will begin hiring the best qualified persons for the new restaurant staff. All applicants at that time will be considered, All restaurant employees were terminated by Aptos Seascape Corporation prior to Respondent's taking over on December 22, 1986. While the golf course remained open under conditions set forth above, the restaurant fa- cilities were closed for repairs and refurbishing until March 2 when the dining room reopened 7 With the consent of the prior management, Pluim had posted a letter on the employee bulletin board prior to taking over advising that Respondent was accepting applica- tions for employment. Of the 39 former Aptos Seascape employees who completed applications, 12 were inter- viewed and hired, 12 were either unavailable or not in- terested, and 16 were interviewed but not offered jobs, 7 of whom were rejected by Pluim on the basis of security interviews, and 8 by DeSarno on Aubert's recommenda- tions.8 All 16 are alleged in the complaint as discrimina- tees. Applications were also accepted from people "off the street." Mary Aubert had been employed by Aptos Seascape, first as a waitress, then as the dining room supervisor and at the closing as dining room supervisor and co-ban- 7 There was a banquet on February 24, and a company-hosted cocktail party on either that date or the 26th s Per Jt Exh 10, the name of Dan Kamalam appears on two lists, as unavailable or not interested, and as having been hired into a different position Michael Paradise, who appears on the hired list, is an alleged discriminatee and will be discussed later 887 quet coordinator. She was the first person hired by Re- spondent in the restaurant. Her position was banquet-co- ordinator and as such was responsible for booking and coordinating the staff and collecting all moneys with re- spect to the banquet facilities. The record establishes that while working for Aptos Seascape, she was a member of Restaurant Employees Local 483 and a statutory supervi- sor. The record establishes, and the Respondent admits, that she has been in a supervisory position since em- ployed by it. Frank DeSarno was employed as the food and beverage director from January 26 until May 21, 1987. As the restaurant was not open when both Aubert and DeSarno were hired, they were instrumental in se- lecting those to be hired after the applicants had been screened for security purposes and approved by Pluim. The record shows that Aubert, DeSarno, and all appli- cants for employment in the restaurant were required to submit to the Respondent's standard preemployment se- curity screening process which included all personnel who handle money or are in positions of responsibility such as managing inventory or merchandise.9 Shortly after DeSarno was hired, both he and Aubert called the individuals that had filed applications-both former Aptos Seascape employees and "off the street" applicants-to came in for an interview, which consisted of reviewing the application, having the applicant state his or her experience, and having them take a "Reid" test which consists of hypothetical questions designed to elicit attitudes toward matters such as theft, drug and al- cohol use. After completing the "Reid" test, applicants were then asked if they would consent to a security check which consisted of an interview and possible poly- graph examination. Arrangements were then made with Long, an independent polygraph examiner from Peta- luma, California, to come to Aptos and conduct security checks on a number of applicants.10 DeSarno compiled a list of applicants to be tested, which was given to Pluim. Pluim reviewed the results of the security interviews with Long, and then indicated on the list with an N, for no, or a Y, for yes, as to whether the individual was eli- gible for employment from a security standpoint. It was then up to DeSarno to select the future employees. Seven of the 16 alleged discriminatees were rejected by Pluim on the basis of the security interviews. Eight were rejected by DeSarno upon Aubert's recommendations that they not be hired.' i The record shows that De- Sarno relied entirely upon Aubert's recommendations, whether to hire or not, with respect to all former Aptos Seascape employees, and those applicants from "off the street" that Aubert knew because of her long residency in the Aptos area. Thus, there are two categories of re- jected applicants, seven for security reasons, and eight because Aubert recommended against hiring. Deanna McManus, an alleged discriminatee, is in a category by herself as is Michael Paradise. 'See G C Exh 8 io Long interviewed all restaurant applicants and conducted polygraph examinations on some with their consent 11 Aubert also recommended that Alfred Smith, a cook rejected by P1mm , not be hired 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Deanna McManus The restaurant unit includes the classification "snack shop employees."12 The snack shop is apparently located on or, adjacent to the golf course and caters to the golf course clientele. Deanna McManus, the daughter of Aptos Seascape golf course superintendent Paul Lloyd, worked part-time in the snack shop from January to June 1986 when her sister quit, at which time she became full time in her sister's place and Kristen Crabb became part- time. Both McManus and Crabb were 'members of Res- taurant Employees Local 483. They were terminated by the predecessor employer along with the other restaurant employees. A girl from another golf course facility oper- ated by Respondent was brought in to operate the snack shop for the first 2 or 3 days after December 22 until a decision was made to keep it open while a construction crew worked on it. Pluim testified that he had gone around and met some of the employees prior to Decem- ber 22, and in the process met McManus once and talked to Crabb two or three times, and while he did not have a negative impression of McManus, Crabb "seemed very personable and the customers seemed to like her and she had a good rapport" so when it was decided to keep the snack shop open, he called her. He denied he knew at the time that McManus was Lloyd's daughter. Crabb went through the security screening process after she was hired. Pluim testified that only one employee was needed in the snack shop at that time of the year-De- cember, January, and February-because of the weather, so Crabb worked 6 hours a day for 6 days a week, and he had a cart attendant fill in as needed. McManus testi- fied it was necessary to have only one employee working in the snack shop. She also testified that the Respondent had called her in early 1987, and that while she returned the call, she did not follow up on it because she had other employment. The General Counsel argues that there was enough work for Respondent to employ both Crabb and McManus; that McManus would have been more quali- fied to fill in at the snack shop than a cart attendant, and therefore "the failure to retain her with Crabb can only be attributed to her past coverage in the Restaurant Em- ployee bargaining unit. . . ." His argument is not persua- sive. McManus corroborated Pluim's testimony to the effect that only one snack shop employee was needed at that time of year There is nothing in the record to even hint that Pluim's selection of Crabb instead of McManus was unlawfully motivated. Both were union members and Pluim credibly testified the decision between the two was made on his perception of their personality and rapport with customers. The General Counsel has failed to prove McManus was unlawfully discriminated against. Michael Paradise Paradise did not testify. i 3 Consequently, Aubert's un- refuted testimony regarding him is credited. She testified 12 The "snack shop" is also referred to in the transcript and briefs as the "snack bar" and "dog shack " i2 The parties stipulated he was not a member of Restaurant Employ- ees Local 483 that there was nothing wrong with his performance as a busboy; that he was a student and therefore not available until after 3 p.m.; that the restaurant was open for dinner only on Friday and Saturday nights and on Sunday; that gratuities are greater on the weekends so that "we felt that the busboys that worked during the hours where the gratuities were very low [during the week], that they de- served those shifts that were busier [on the weekends]"; that he was rehired in May since she thought perhaps he could work for Respondent during the summer, that he worked 1 day and informed her that he had a job in con- struction. The General Counsel has failed to prove Para- dise was unlawfully discriminated against 1. Applicants rejected by Pluim Pluim testified he based his decision as to eligibility for employment upon the results of Long's security inter- views. His primary concern, as outlined in the Loss Pre- vention Statement, page 3 of General Counsel's Exhibit 8, was theft. He testified he was also concerned about the use of alcohol and drugs, including the type of drugs used, the frequency of use, and the last time used if used frequently. Alfred Smith Smith worked for Aptos Seascape as a cook from Sep- tember 1984, until the restaurant closed when Respond- ent took over Smith testified he was interviewed by De- Sarno in early 1987, that he took two written tests, and that he also took a lie detector test. After learning that he was not going to be hired, he testified he went to the restaurant and asked the chef why and was told the chef did not know and suggested he ask DeSarno. He claims he then asked the chef "Between you and me, what would have happened if I hadn't taken the lie detector test," and the chef responded "We couldn't have touched you, we couldn't have hired you." His account of his conversation with DeSarno was: So, then, I went and asked Frank, well, you know, I took the lie detector test and I was honest, dust like he said I should be and I told the truth about everything, why wasn't I hired, and Frank said to me, "Well, you worked here before, didn't you?" And I said yes. And he said, "Well, you said [sic] two strikes against you right there," at which point I said, "You meant union," or I said, "You mean u-n-i-o-n?" And he just kind of went like this and said, "You said it, I didn't." And that was the end of our talk. 14 On cross-examination Smith admitted he had been interviewed by the polygraph examiner but had not been given a polygraph examination; that he admitted to using three illegal substances , one at Christmastime 1986 and another the night before he was interviewed by the poly- graph examiner ; he admitted to having failed to admit the use of a particular illegal substance within the past year on the Reid test; that he had been terminated by 14 DeSarno denied this conversation took place SEASCAPE GOLF COURSE three previous employers, that he had lost his temper and been rude and abrupt with fellow employees; that there had been occasional complaints on his performance as a cook; that while Aubert had never given him a writ- ten warning, he had received oral counseling from her; that in late 1986, following an incident with a waiter, Aubert "wanted to talk to me about my abruptness and attitude with the waitresses in general and that's why she had some of the other girls there because she felt I had been abrupt with them and that was a good time for us all to get together and solve something about this rude- ness or abruptness or whatever.. . ."; that the following day another employee reported that Aubert had told the chef that "Alfie's got a bad attitude " Pluim testified that Respondent conducts security interviews because it is looking for the best possible em- ployees that it can find at each of its facilities; that he and Long discussed the interview worksheet that Long completed on each applicant; that the major factor he was concerned with was theft, but that drug usage, its type, use frequency and the last time used were also im- portant. He testified he rejected Smith because the inter- view worksheet revealed Smith was unsure of the last time he had stolen, "and he had done quite a bit of drug usage and the thing that really stuck out is that he was coming in for a security interview, and he smoked pot the last night before also." He therefore informed De- Sarno that Smith was not to be hired. Aubert testified she had also recommended to DeSarno that Smith not be hired because of "his attitude toward his fellow employ- ees, the waitresses and busboys"; that she had written him up for his attitude about the kitchen; that on many occasions she had to return food from the dining room that he "had cooked inappropriately"; that she had had to counsel him regarding a "very negative attitude" toward another employee; and that just about every em- ployee had complained about him. I do not credit Smith's testimony that DeSarno told him he had two strikes against him because he had worked for the previous employer, to which Smith pur- portedly said "you mean u-n-i-o-n" and that DeSarno re- plied, "You said it, I didn't" DeSarno, who no longer worked for Respondent, denied the conversation, and he impressed me throughout his testimony as giving honest answers Smith, on the other hand, impressed me as being a bit loose with the truth. His answers on the Reid test and to questions during the security interview in- volving drug usage were inconsistent. In an affidavit given a month before the hearing, he denied he had been criticized for his cooking ability or performance; yet at the hearing he admitted to "occasional" complaints on his performance, a fact elaborated on by Aubert, whom I found to be a forthright and honest witness. According- ly, I do not credit his testimony when it conflicts with that of either DeSarno or Aubert and particularly re- garding his purported conversation with DeSarno. The overall evidence convinces me that the reasons given by Respondent for not hiring him are not pretextual as claimed by the General Counsel. Accordingly, I find that the General Counsel has not shown by a preponderance of the evidence that Smith was unlawfully denied em- ployment or that DeSarno informed an employee, as al- 889 leged in paragraph 8 of the complaint, that he had not been hired because of his past union membership. Colleen Collins Collins was a dining room lunch and banquet waitress for Aptos Seascape about 6 months. She applied with Respondent, was interviewed by DeSarno, took the Reid test and was interviewed by Long, to whom she admit- ted to drug use in the past, to a driving conviction and fine, to thefts totaling $300 to $400, the last of which was 3 months prior, which she testified was a very insignifi- cant amount. Because of the admissions, Long did not administer a polygraph examination. Pluim testified his decision not to hire was based on the thefts and their re- cency revealed in the security interview report from Long. Aubert testified that she had discussed Collins with DeSarno and told him Collins had a cold and dis- tant manner with customers but that he had said she should continue in the interview process. Aubert's under- standing was that she was not offered employment be- cause of her security interview. Kim McCloud McCloud did not testify. Pluim testified that her rejec- tion for employment was based upon admissions made to Long during the security interview, which consisted of admitting to thefts totaling $500, and as recent as Sep- tember 1986, to giving "free food to cute guys while working at Seascape," and "quite a bit of drug use." Long did not administer a polygraph examination be- cause of her admissions during the interview. Judith Keller Keller testified she worked for Aptos Seascape as a dining room hostess off and on for 7 years, made applica- tion for a job with Respondent and "went through ev- erything that everybody else did," including a polygraph exam She later received a letter from DeSarno inform- ing her that her application would be kept on file but her services weren't needed then. About 2 months later, while she was at the restaurant with friends, DeSarno told her that they had been very busy and asked if she would like to return. She responded she "would only do it for $7.50 an hour," and he said he would think about it. 15 About 3 weeks later she called Aubert and learned that DeSarno "had been relieved of his duties." The se- curity interview sheet completed by Long, and which Pluim used in making a decision whether she was eligible for employment, lists some drug usage and thefts totaling $400 to $500, in the form of both cash and merchandise totaling $50 and $80 respectively at one time. Keller tes- tified that the "theft" had actually resulted from mathe- matical errors totaling $400 to $500 for which she was responsible and was discovered during an audit of a company for whom she had worked for 10 years which had just been sold. She testified she did not give the foregoing explanation to Long either before or after she was attached to the polygraph machine. Pluim testified 15 Her prior wage was $6 an hour 890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he relied on the information on the security interview sheet which revealed theft and some drug use, which formed the basis for his decision that she was not eligible for hire. David Andrews Andrews testified he had been employed at Aptos Seascape almost 50 years. He completed an application for employment with Respondent in December and was called in January to come in for an interview which, ap- parently, consisted of taking the Reid test followed by a short conversation with DeSarno wherein the latter ex- pressed the opinion his "chances of coming back would be about 95 percent ." A couple of weeks later DeSarno called and asked him to come in for a polygraph exami- nation. Asked by Long if he had ever stolen , he testified "I told him I have a problem with his question . That it was hard for me to answer yes or no to this question be- cause a lot of gray matter , a lot of certain circumstances involved . And, but if you need a yes or no, it would have to be yes. Then I gave a yes reluctantly. . . . He asked me give me an instance . . . . I told him I stole a turkey one Christmas" for either a former or part-time employee He explained that each employee was to re- ceive a turkey, for which they had to sign their name, and that he signed his name twice and had gotten a turkey for his friend also. Asked if he had stolen cash, he explained that sometimes when a customer would buy him a drink, instead of treating the money left by the customer as payment for the drink , he would treat it as tip money, which he considered thievery . The security interview sheet completed by Long indicates the poly- graph examination results indicated deception on the part of Andrews with respect to thefts . Pluim testified he re- jected Andrews because "he had stolen currently in the last six months and . . . he had given that admission and also Mr. Long couldn't verify his truthfulness in regards to thefts, even after he gave the admission." Eugene Pelayo Pelayo had worked for Aptos Seascape as a fry cook since 1971. He testified that after filing an application he received a call from Aubert to come in, which he did. He claimed he spoke to both Aubert and the chef and was told he was hired . A week later he was called again and told he had to come in and take the Reid test, which he did. A week or two before the opening he was called again to "come to work " When he arrived, he testified, he was told he had to take a polygraph exam, which he did. He denied using drugs or any thefts. The security interview form discloses that as a result of the polygraph examination, Long concluded "Deception indicated on: undetected crimes - Thefts." Pluim testified he rejected Pelayo because Long could not verify his truthfulness with respect to theft questions and crimes. Randy Maldonado Maldonado did not testify. P1mm testified he rejected Maldonado because Long "couldn't verify the truthful- ness of theft questions and also there was some drug usage." His security interview form shows Maldonado admitted to some drug usage but denied any thefts. The form indicated the polygraph examination showed "De- ception indicated on: Thefts." Discussion The General Counsel contends the Respondent's use of the polygraph examination "should be construed as merely a useful pretextual screening device as opposed to a rigorous and objective basis for selecting competent employees," and that "an analysis of the polygraph inter- view process results shows no objective bases for the Re- spondent's general manager, Pluim to make selections of some applicants as opposed to others." The Respondent argues that it has been conducting se- curity interviews and polygraph examinations for several years at both union and nonunion golf courses in fulfill- ment of its policy of hiring the best people possible, and that the same standard was used on both the former Aptos Seascape employees and the "off the street " appli- cants. In each of the seven instances recounted above, it is argued, Pluim rejected the former employee because the employee had either admitted to theft from prior em- ployers or indicated deceptiveness during the polygraph examination . As the restaurant employees have daily access to cash and inventory, it is argued , there can be no serious argument that Respondent "lacked a legiti- mate, nondiscriminatory reason for electing not to hire the seven former Aptos Seascape employees who admit- ted to theft or failed a polygraph with respect to past theft." I have considered all of the arguments and positions set forth in the General Counsel's brief in conjunction with the record and am unable to discern any unlawful motive with respect to Pluim's role in staffing the restau- rant. Evidence shows Respondent has used the security interview and polygrpah examination at its other golf courses. It has not been shown that any unlawful ques- tions were asked or that Respondent's supervisors or agents exhibited any antiunion animus. Also, the security interview forms for the "off the street " or nonformer Aptos Seascape applicants lend support to the Respond- ent's defense that all applicants were treated alike and that those who either admitted to theft from prior em- ployers or whose polygraph examination indicated de- ceptiveness with respect to theft, were rejected. 16 See also the security interview forms for the former Aptos Seascape employees and the "off the street " applicants that were hired for the restaurant, Respondent's Exhibits 16 and 18, respectively, which both disclose that not a single restaurant unit employee hired either admitted to theft, nor did the polygraph examination indicate any de- ception in that regard . In sum, I conclude the General Counsel has failed to prove by a preponderance of the evidence that Smith , Collins, McCloud , Keller, Andrews, Pelayo, or Maldonado was refused employment unlaw- fully. 18 Other apparent reasons for rejections of "off the street" applicants appear to be venereal disease, sale of drugs , recent drug use, and offen- sive body odor SEASCAPE GOLF COURSE 891 2. Applicants rejected by DeSarno DeSarno testified that it was his responsibility to hire the restaurant staff from the lists of those whom Pluim had approved from a security standpoint. He denied that he was ever told to consider, or that he did consider, union membership or affiliation in making his decisions, and there is no credible evidence to the contrary regard- ing him or Aubert. He further testified that since Aubert had worked with the former Aptos Seascape employees, he relied completely on her judgment and accepted her recommendation with respect to hiring or not. Thus, those former Aptos Seascape employees hired and those not hired that cleared the security phase were because of her recommendations . He also relied on her recommen- dation regarding "off the street" applicants that she had knowledge about. His objective, he testified, was to co- ordinate a working team that would improve the overall service and the food. The record shows that Aubert rec- ommended against hiring each of the following former Aptos Seascape employees. Barbara Markum Markum did not testify. Therefore, Aubert's testimony regarding her past experience with Markum is uncontra- dicted. Aubert testified that on the day she interviewed Markum, DeSarno asked Aubert about her experience with Markum. Aubert told him that she had had to speak to Markum on several occasions about her drinking on the job; that there was a continuing problem of bringing her boyfriend to wait for her which was against compa- ny rules; that on one occasion the boyfriend got into a fight and hit a customer; that both she and the food and beverage manager had told both Markum and her boy- friend to keep him out of the premises; that she had to remind Markum frequently to be more attentive to cus- tomers; that she had gotten into a verbal fight with a bartender and used profanity in front of customers; that Markum had received several verbal and written warn- ings for her conduct. For the above reasons, she recom- mended to DeSarno that Markum not be hired. The General Counsel has failed to establish an unlawful motive for declining to hire Markum. Loretta Ashley Ashley was a part-time cocktail waitress. She appears to have gone through the regular interview and security screening process and been approved by Pluim from a security standpoint. Aubert testified that following his interview with Ashley, DeSarno stated he felt she "was a little distant and not very personable," at which time Aubert related her experience with Ashley. She informed him that Ashley has a business in hypnosis and had coun- seled the beverage manager in hypnosis with respect to stopping smoking; that she often pulled a bar stool over by the fireplace and appeared to go into a self-hypnotic trance, which was frustrating for Aubert because Ashley would not be aware of customers in the lounge and Aubert "would have to call her as if almost to awaken her from-this state that she was in"; that she had spoken to her about her appearance on two occasions; and that she had given her verbal warnings. Ashley testified she had never received any warnings and that-both Aubert and the food and beverage manag- er complimented her every day on her clothing and the way she did her job She testified. I never knew I could sit down. Um, I was always up on my feet and looking for things to do and busy and they liked the way I kept the tables clean and I received numerous compliments from her [Aubert] and from the bartenders and from Bruce [food and beverage manager] and from everyone. She denied she ever engaged in self-hypnosis during working hours or that Aubert had ever had to awaken her from a trance. She admitted on cross-examination to having practiced self-hypnosis in the past and to having taught a class in it . In addition to volunteering informa- tion probative of nothing, Ashley stated that Aubert "was a very warm, loving person and I considered her a good friend." Ashley's enthusiasm for pinning an unlaw- ful motive on the Respondent was far more apparent than her willingness to answer questions directly. I find that Aubert is the more credible of the two. The General Counsel has failed to establish an unlawful motive for de- clining to hire Ashley. Nancy Arnone Arnone worked for Aptos Seascape from April 1985 to December 1986 as a waitress in the banquet depart- ment. She testified she applied for employment in Janu- ary, was called by Aubert to come in for an interview, which she had with DeSarno, who informed her she would be called back for another interview and would be asked to take a polygraph test, about which she ex- pressed reluctance, but that he indicated it probably would not be necessary because most of the time the interviewer did not require it. Having heard that other employees had been called back for the polygraph test, she called DeSarno to find out why she had not been. DeSarno informed her that a letter was in the mail which, when received, stated that all of the positions had been filled. Aubert testified that she was present during the inter- view by DeSarno and that Arnone displayed "a very negative attitude" which she and DeSarno discussed, and that she told DeSarno about her past experience with Arnone; that she had exhibited a bossy and negative atti- tude by not following instructions and complaining about doing so; that she had verbally counseled her regarding her attitude and for using a utility cart from the kitchen instead of serving from a tray which was the type of service both Aptos Seascape had used and Respondent was also going to use She had made Arnone return the utility cart to the kitchen and use the proper service Aubert said she did not schedule Arnone in the dining room because she did not want to deal with the problem. Arnone stated that she "had tendonitis very badly" in her wrist the spring of 1986, for which she was being treated, and had asked someone else to carry her trays for her. She apparently did not tell either Aubert or the food and beverage manager about her disability. She denied Aubert talked to her about using a cart instead of 892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tray service, and stated the two had a good relationship. The General Counsel has failed to establish an unlawful motive in declining to hire Arnone. Mary Lambert Lambert worked for Aptos Seascape 3-1/2 years as a waitress-bartender in the banquet room. She completed an application in December and was called by Aubert the latter part of January for an interview. She testified she took the Reid test and underwent a polygraph exami- nation and later received a letter stating she wasn't being hired. Aubert testified she spoke with DeSarno regarding Lambert and was present during her interview . She testi- fied: ... Mary was discussing the availability of hours that she could work, and that she had many obliga- tions at home, such as children and social events and building a new home: And I also related to Frank that she was extremely difficult to schedule as an Aptos Seascape Corporation employee and that at times it was difficult to rely on her when making out a schedule because she seemed to have so many other personal obligations. And that, per- sonally, that wasn't the type of employee that I was looking for to man the banquet crew . . . she would many times switch shifts with other people, which, at times, created problems regarding over- time and that type of thing. . . . They were not supposed to without the acknowledgment of man- agement, but there were times that Mary , because of her demanding personal schedule, did do that [without permission]. Lambert admitted that someone working in the ban- quet facility had to be flexible; that sometimes when she was not scheduled and was called to come in, that she could not; that sometimes she traded off with other em- ployees, but that she would "write it down on a piece of paper and get an okay from your supervisor." She also acknowledged having had a personality conflict with Arnone, about which she had been spoken to by manage- ment, but stated they had ironed out their problem and everything had gone smoothly the last year. She in- formed DeSarno that she had "two children and a family as well. And they came first and . . . that I had never missed work and I always worked out my schedule and babysitting was never any problem at all." The General Counsel has failed to establish an unlawful motive in de- clining to hire Lambert. Lucy Ferguson Ferguson was employed as a banquet and dining room waitress from August 1984 until December 1986. She was interviewed by DeSarno the latter part of January and underwent a polygraph examination but did not hear anything from Respondent after that. Aubert testified DeSarno asked her about Ferguson on the day he interviewed Ferguson. Aubert reported Fer- guson had worked primarily in the dining room and that she had received many complaints from customers re- garding Ferguson and that "she had somewhat of a rude approach to customers"; and that she had received a written warning from the food and beverage manager re- garding her personal appearance. She testified that Fer- guson had refused to adhere to a dress policy which cov- ered appearance expectations in that she continued to wear green and blue nail polish and extreme hairstyles. She testified there had been one instance when a group had refused to have her continue to wait on them and she had to send another waitress to do so Ferguson testified that she had been scheduled to work on her birthday'on September 17 and that the food and beverage manager had refused her request for the day off. She characterized him as just "being unrespon- sive." Therefore, she made arrangements with another employee to cover her shift "and I think I had [Aubert] okay that after that." She received an employee warning the following day for "substandard work," her "atti- tude," and for being "uncooperative." She testified she felt very surprised and did not see any point to it. She received another warning a few days later for complain- ing about the schedule. With respect to the dress code, she acknowledged that Aubert had told her the finger- nail polish she was wearing was not acceptable. She also testified she had known the food and beverage manager and his wife from Idaho, and that she called his wife and said that he "has certainly been acting strangely toward me lately." The General Counsel has failed to establish an unlawful motive for declining to hire Ferguson. John Fields Fields, a busboy, did not testify. Therefore, Aubert's testimony regarding her past experience with him is un- contradicted. She testified that she told DeSarno that she had known Fields about 13 years; that he had gone to school with her youngest son; that he was a likeable young man but was habitually late, for which she had to warn him; that he would come in wearing wrinkled' shirts or shirts that had not been washed, and that on a couple of occasions she sent him to the pro shop to take a shower before starting work. She stated she did not want to deal with those problems again and did not feel he was the type of employee Respondent wanted repre- senting them. The General Counsel has failed to establish an unlawful motive for declining to hire Fields. Jeff Baird Baird, a part-time busboy, also did not testify so .Au- bert's testimony is uncontradicted. She testified she told DeSarno that she had experienced difficulty with him, that he was extremely slow, had difficulty learning and had to be retrained each day; that his fellow employees constantly complained about his slowness and waitresses did not want to work with him. The General Counsel has failed to establish an unlawful motive for failing to hire Baird. Discussion In addition to arguing that Respondent's unlawful con- duct in the Teamsters unit case also applies to the Res- taurant Employees unit case, an argument which I reject- SEASCAPE GOLF COURSE ed at the outset of my decision in the Restaurant case, the General Counsel argues that the reasons Respondent advances for refusing to hire those employees whom Aubert recommended against hiring, "were simply not true," and that it should be inferred that they were not hired because of their past union affiliation so as to un- lawfully avoid successorship status. He also argues that all of the Aptos Seascape employees "should have been hired as a class, given that the polygraph screening device constituted an 8(a)(5) change in terms and condi- tions of employment, which should not be used against them." Respondent contends there is absolutely no evidence of an improper motive on Aubert's part in recommend- ing certain employees not be hired, and that it is a fact that all witnesses who were asked testified that Aubert had always been fair with them. It is also argued that the General Counsel's case rests principally upon specula- tion, conjecture, and suspicion, which do not substitute for proof by a preponderance of the evidence, a burden which rests upon the General Counsel. Further, since there is no proof of a discriminatory motive by Aubert, the Respondent had the absolute right to rely upon her past experience with, and evaluation of, the applicants, as well as her recommendations as to whether applicants should be hired Again having reviewed and considered all of the argu- ments and positions in the General Counsel's brief in conjunction with the record, I fail to find any credible evidence of an unlawful motive on the part of either Aubert or DeSarno in either making recommendations or in declining to hire any of the above seven applicants.17 Nor is there any basis for inferring an unlawful motive. The General Counsel carries an affirmative burden of proof and must show by a preponderance of the evi- dence that the allegations of the complaint are true. Sus- picion alone does not suffice to prove an unfair labor practice. Kings Terrace Nursing Home, 229 NLRB 1180 (1977). In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board held that a violation of Section 8(a)(1) or (3) is es- tablished where the General Counsel has shown that an employer's opposition to protected conduct was a "moti- vating factor" in the employer's decision, and the em- ployer, in the face of such a showing, has failed to dem- onstrate that the same action would have taken place even in the absence of the protected conduct. In my view, the General Counsel has not only failed to make a prima facie showing sufficient to support the inference that protected conduct was a "motivating factor" in re- fusing to hire the former Aptos Seascape restaurant em- ployees, but that the Respondent has shown that they were not hired because of lawful business considerations. In so concluding, I am mindful of the fact that Respond- ent violated the Act with respect to the golf course maintenance unit, and that it knew that the restaurant employees had been represented by the Restaurant Em- 11 It was all too obvious that Ashley, the General Counsel's final wit- ness, was bent upon establishing, albeit unsuccessfully, an unlawful motive, 893 ployees Union at the time their employment was denied. As previously noted, however, alleged discrimination against unit employees and alleged successorship must be analyzed in each unit separately. Kessel Food Markets, supra. As the Respondent has not violated the Act in re- fusing to hire a majority of the former Aptos Seascape restaurant employees, it follows that it cannot be a suc- cessor. Daka Inc., 286 NLRB 548 (1987). It further fol- lows, and -I find, that Respondent was not required to recognize and bargain with the Restaurant Employees Union and was privileged to establish its own terms and conditions of employment without first giving notice to the Restaurant Employees Union. In sum, I find that the Respondent has not violated the Act in any respect al- leged in the complaint in Case 32-CA-8892. THE REMEDY' 8 Having found that Respondent discriminatorily refused to offer employment to the former golf course mainte- nance employees of Aptos Seascape in Case 32-CA- 8612, I shall recommend that their employment status be restored to what it would have been but for the discrimi- nation against them, and that Respondent offer them im- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights or privileges previously enjoyed, discharging, if necessary, employees hired from sources other than Aptos Seascape, to make room for them and make them whole for any loss of earnings they may have suffered due to the discrimination practiced against them, as pre- scribed in F. W Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).19 Backpay shall be calculated ' on the basis of the contractual rates paid by Aptos Seascape It is further recommended that Respondent bargain, on request, with the Teamsters Union concerning any terms and conditions of employment on which it would have been required to bargain had the Union's lawful status been acknowledged on December 22, 1986, the date Re- spondent took over and began operating the golf course. It is further recommended that Respondent cancel, on request by the Teamsters Union, any departures from terms and conditions of employment, including rates of pay and benefits unilaterally effectuated and make whole the employees by remitting all wages and benefits20 that 181 have considered Respondent's argument regarding remedy and find it unpersuasive An appropriate remedy in these circumstances is to restore the status quo ante My recommended remedy and Order are based on well-established Board precedent See, for example, State Dis- tributing Co, 282 NLRB 1048 (1987), for a detailed analysis of the Board's reasoning 19 In accordance with the Board's decision in New Horizons, 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 25 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) 20 As part of the make-whole remedy, Respondent shall remit pay- ments it owes to the benefit funds and reimburse employees for any ex- penses resulting from its failure to make such payments 894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would have been paid, absent the Respondent's unlawful conduct, from December 22, 1986, until the Respondent negotiates in good faith to agreement or to impasse. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Teamsters Local 912 and Restaurant Employees Local 483 are each labor organizations within the mean- ing of Section 2(5) of the Act. 3. All full-time and regular part-time groundskeepers, mechanics and foremen employed by American Golf Corporation d/b/a Seascape Golf Course at the facility formerly operated by Aptos Seascape Corporation, ex- cluding all other employees, managerial employees, office clerical employees, guards, and supervisors as de- fined in the Act, constitute a unit appropriate for collec- tive bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, General Teamsters, Packers, Food Processors and Warehousemen Union, Local 912, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, has been the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargain- ing with respect to rates of pay, wages, hours of employ- ment and other terms and conditions of employment within the meaning of Section 9(a) of the Act. 5. By its refusal on December 22, 1986, and thereafter to hire the employees of Aptos Seascape Corporation, following the purchase of this facility, because of the union affiliation of these employees and to avoid an obli- gation to bargain with Teamsters Local 912, the Re- spondent violated Section 8(a)(3) and (1) of the Act. 6. The Respondent is the successor employer to Aptos Seascape Corporation, and by failing to recognize and bargain with Teamsters Local 912 since January 6, 1987, as the exclusive collective-bargaining representative of the employees in the above unit, including by departing from pre-existing rates of pay and benefits without prior notification to and consultation with the Union, it violat- ed Section 8(a)(5) and (1) of the Act. 7. The Respondent has not engaged in any of the unfair labor practices alleged in Case 32-CA-8892. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed21 ORDER The Respondent, American Golf Corporation d/b/a Seascape Golf Course, Aptos, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from 21 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the fmdmgs, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (a) Refusing to hire employees because of their union affiliation and to avoid an obligation to bargain with General Teamsters, Packers, Food Processors and Ware- housemen Union, Local 912, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. (b) Failing to recognize and bargain with General Teamsters, Packers, Food Processors and Warehousemen Union, Local 912, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO, as the exclusive collective -bargaining representative of its employees in the following unit, in- cluding by making changes in the rates of pay and bene- fits of the employees in this unit without notice to and consultation with the Union: All full-time and regular part-time groundskeepers, mechanics and foremen employed by Respondent at the Facility, excluding all other employees, manage- rial employees, office clerical employees, guards, and supervisors as defined in the Act. (c) In any manner interfering with, restraining, or co- ercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer to the golf course maintenance employees formerly employed by Aptos Seascape Corporation at the Aptos facility, full and immediate reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without preju- dice to seniority or other rights which they have former- ly enjoyed, discharging if necessary other employees who have been hired in their places. (b) Make whole the golf course maintenance employ- ees formerly employed by Aptos Seascape Corporation for any loss of earnings they may have suffered due to the discrimination practiced against them, in the manner described in the remedy section of the decision. (c) On request, bargain with Teamsters Local 912 as the exclusive representative of the employees in the aforesaid appropriate unit concerning terms and condi- tions of employment and, if an understanding is reached, embody the understanding in a signed agreement. (d) On request of the above Union, cancel any changes from the rates of pay and benefits or other terms and conditions of employment that existed immediately before taking over the Aptos Seascape Corporation oper- ations, and make the employees whole by remitting all wages and benefits that would have been paid absent such changes from December 22, 1986, until it negotiates in good faith with the Union to agreement or to impasse in the manner described in the remedy section. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. SEASCAPE GOLF COURSE 895 (f) Post at its Seascape Golf Course copies of the at- tached notice marked "Appendix."22 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- 22 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 " ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint in Case 32-CA-8892 be dismissed.