Pace Industries, Inc. v. National Labor Relations Board

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-1643
___________
Pace Industries, Inc., doing business as *
Precision Industries, Inc.; Pace *
Industries, Inc.; Pace Industries, Inc., *
doing business as General Precision *
Tool & Die, Inc., Pace Industries, doing *
business as Automatic Castings, Inc., *
*
Petitioners, *
*
v. *
*
National Labor Relations Board, *
*
Respondent. *
___________ Petition for Review
of the Decision and
No. 96-1943 Order of the National
___________ Labor Relations Board.
Pace Industries, Inc., doing business as *
Precision Industries, Inc.; Pace *
Industries, Inc.; Pace Industries, Inc., *
doing business as General Precision *
Tool & Die, Inc., Pace Industries, doing *
business as Automatic Castings, Inc., *
*
Respondents, *
*
v. *
*
National Labor Relations Board, *
*
Petitioner. *
___________
Submitted: December 11, 1996
Filed: July 1, 1997
___________
Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM,1 District Judge.
___________
WOLLMAN, Circuit Judge.
The National Labor Relations Board (Board) found that Precision Industries, Inc.
(Precision)2, violated sections 8(a)(1), (3), and (5) of the National Labor Relations Act
(the Act), 29 U.S.C. §§ 158(a)(1), (3), and (5). The Board found that Precision refused
to hire employees formerly employed by its predecessor, Universal Die Casting, Inc.
(Universal Die), because those employees were represented by the International Union,
United Automobile, Aerospace and Agricultural Implement Workers of America
(UAW) (the union); that Precision did so in order to avoid recognizing and bargaining
with the union; and that Precision did in fact refuse to recognize and bargain with the
union and unilaterally implemented changes in employment conditions. Precision
petitions for review of the Board’s decision and order, and the Board cross petitions
for enforcement of its order. We deny the petition for review and grant enforcement
of the order.
1
The HONORABLE JOHN R. TUNHEIM, United States District Judge for the
District of Minnesota, sitting by designation.
2
At the time of the alleged violations, Precision was an entity separate from Pace
Industries, Inc., although the two companies had some common owners. Precision has
since merged into Pace and now operates as a division of Pace.
-2-
I.
Pace Industries, Inc. (Pace), is an aluminum die casting company located in
Harrison, Arkansas, and owned by James Keenan and Bob Gaddy. In 1988, Keenan
and Gaddy sought to expand their business and, along with another Pace officer, Jim
Alford, formed Precision. In October of 1988, Precision agreed to purchase two plants
owned by Universal Die, one located in Little Rock and the other in Malvern,
Arkansas. Universal Die-Malvern was unionized, while Universal Die-Little Rock was
not.3 Gaddy testified that Precision was interested in Universal Die because Universal
Die had been profitable, had a reputation for quality work, and would serve as a basis
for future growth. At about the same time as the Universal Die acquisition, Gaddy and
Keenan, along with three others, also purchased two other non-union die casting
companies in Alabama. In January of 1990, Gaddy and Keenan purchased an
additional non-union die casting company.
During the week of October 10, 1988, Precision ran newspaper advertisements
soliciting job applications from the general public for employment with Universal Die-
Malvern. The employees at Universal Die-Malvern were informed that to secure
continued employment they would have to submit applications. On October 14, 1988,
Universal Die-Malvern ceased operations and discharged all of its employees.
Universal Die-Malvern plant manager, Mike Nowak, continued in his position, as did
the majority of all managerial and salaried employees. The Universal Die plant in Little
Rock continued operations. Although its employees were required to complete an
application, all but two or three of those employed before the purchase by Precision
were rehired without any thorough review of the applications.
Precision implemented an elaborate hiring procedure at the Malvern plant, which
cost between $75,000 and $100,000 to implement, caused an interruption in
production, and resulted in a six to eight week hiring process, which Precision admitted
3
Universal Die-Little Rock closed in 1989. None of the employees of that plant
are alleged discriminatees in this proceeding.
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jeopardized its commitments to its customers. Applicants were required to complete
a nineteen-page application, which included an eight-page section requesting
information such as the applicant’s name, address, education, and work history. The
application included a five-page medical questionnaire section, followed by a six-page
short-answer essay section. Before former Universal Die employees’ applications were
considered, their personnel files were reviewed, with a notation being made concerning
the employees’ attendance records, disciplinary actions, and medical limitations.
Applicants who made it through the initial screening and review were then
required to undergo a battery of verbal, numerical, and dexterity tests. Dr. Mamdouh
Bakr, an industrial engineer whose expertise was in retraining existing employees and
not in hiring new employees, was hired to assist in this phase of the hiring process.
Malvern plant manager Nowak and Precision’s industrial engineer, David Watson,
were also recruited to help in this phase of the process. Neither Nowak nor Watson
appears to have had any experience in devising and applying tests designed to find
suitable die casters.
Applicants who applied for tool and die and maintenance positions were
subjected to the National Tool and Machine Association (NTMA) tests, which
consisted of mechanical comprehension, verbal, mathematics, and problem-solving
tests. Although the NTMA tests are not ordinarily given to maintenance employees,
maintenance applicants were also given NTMA tests, as well as an applied electricity
test. It is not clear who set the cut-off score for the NTMA tests or how that number
was determined.
Other applicants were given Personnel Tests for Industry (PTI) and dexterity
tests. The verbal part of the PTI consisted of fifty multiple-choice questions on
defining words and identifying the non-relationship of words and phrases. The
numerical test consisted of thirty mathematical problems in areas of basic addition,
subtraction, division, and multiplication. The scores on these two tests were added
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together, and the passing score was apparently arbitrarily set at thirty. It appears,
however, that the cut-off scores were not set until after Nowak and Watson had
reviewed a number of the test scores. A five-point bonus was given to former
Universal Die employees.
Dr. Bakr designed the dexterity tests, which purportedly tested for speed and
accuracy. The tests included a “pegboard test,” which consisted of inserting wooden
dowels into holes; a “sorting card test,” which entailed arranging cards according to the
number of holes per card; and a “paint test,” which required the applicant to put flat
steel washers onto spokes and then remove them. Watson, who admittedly had no
testing expertise, was given the responsibility of establishing time limits and penalties
for the dexterity tests.
New applicants who successfully completed these tests advanced to the next
phase of the hiring procedure -- physical examinations and x-rays. Former Universal
Die employee-applicants, however, were further reviewed before advancing to this
phase. Even after passing the physical and x-ray examinations, the former Universal
Die employees’ personnel files were again reviewed in order to determine their medical
limitations.
Although employees at non-unionized Universal Die-Little Rock were required
to complete the application, they were subjected to neither the battery of tests nor the
physical examinations. In addition, the plant manager for Universal Die-Little Rock,
Roger Connor, had complete discretion in hiring and in fact rehired nearly all of the
former employees at that plant. The employees of the three other non-union die casting
companies acquired by Gaddy and Keenan were retained without having to complete
applications and without having to undergo tests or physical examinations.
Connor and Little Rock sales associate, Debbie Key, questioned Precision
officials about the differences in hiring procedures. Although Connor was initially told
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that the Malvern plant was not as busy as the Little Rock plant and had higher
insurance costs, those reasons were never advanced during the investigation or at trial.
Rather, Precision officials testified before the administrative law judge (ALJ) that the
reason for the difference was the institution of new operating procedures. Connor
testified that he asked whether the hiring procedures were an effort to keep out the
union, and that his suspicions were later confirmed by Precision officials. Precision
officials never denied Connor’s accusations, but testified that they told Connor the
union was not the reason. Connor and Key were later fired for alleged differences in
business philosophies.
Of the 103 former Universal Die-Malvern employees that applied, only some
twenty-two were ultimately rehired. Sixty-two of those that were rejected are alleged
discriminatees in this action, which was brought by the union and charged Precision
with engaging in unfair labor practices. The ALJ concluded that Precision refused to
hire those sixty-two former Universal Die-Malvern employees because of their union
affiliation and in order to avoid recognizing and bargaining with the union, in violation
of sections 8(a)(1) and (3) of the Act. In addition, the ALJ found that Precision
violated section 8(a)(5) of the Act by unilaterally changing the preexisting conditions
of employment.
The ALJ’s proposed remedy included a directive that Precision offer the
discriminatees reinstatement, make them whole for any loss of earnings, recognize and
bargain with the union, and rescind the unilateral changes that were implemented. The
ALJ also recommended that Precision cease and desist from failing and refusing to hire
former Universal Die-Malvern employees; from refusing to recognize and bargain with
the union; from unilaterally setting and changing terms and conditions of bargaining unit
employees; and from interfering with, restraining, or coercing employees in the exercise
of their rights under section 7 of the Act, which includes the right to organize, join,
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form, or assist any union. The Board affirmed the ALJ’s rulings, findings, and
conclusions, subject to some modifications, and adopted the recommended order.4
II.
Precision’s first argument is that res judicata bars enforcement of the Board’s
order. Precision argues that the claims now before the court could have been brought
in an earlier lawsuit that the union filed in district court under section 301 of the Act,
which alleged that Precision had breached the purchase agreement by refusing to pay
plan-provided health and life insurance benefits established in the collective bargaining
agreement (CBA), thereby violating the Employee Retirement Income Security Act
(ERISA), 29 U.S.C. § 1001 et. seq. The district court found that Precision had not
agreed to assume the insurance benefits program and dismissed the action.
“Under the doctrine of res judicata, a judgment on the merits in a prior suit bars
a second suit involving the same parties or their privies based on the same cause of
action.” Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n. 5 (1979). Although
res judicata bars not only relitigation of claims that a party raised, but also claims the
party could have raised in the prior adjudication, see Allen v. McCurry, 449 U.S. 90,
94 (1980), Precision’s assertion that the unfair labor practices claim could have been
brought in the earlier proceeding is without merit.
The allegation of unfair labor practices is not a claim that could have been raised
in the earlier proceeding, for an allegation of unfair labor practices brought pursuant to
4
The Board rejected the ALJ’s statement that he was compelled to find a
violation of the Act because he found Precision’s witnesses not to be credible. The
Board pointed out that if an ALJ discredits testimony, the ALJ may infer that reasons
other than those proffered were the motivation behind the hiring procedures, but is not
required to do so. The Board, however, affirmed the ALJ, agreeing that anti-union
animus was shown through direct evidence as well.
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29 U.S.C. § 158 of the Act is a claim within the exclusive jurisdiction of the Board.
See Sears, Roebuck and Co. v. Solien, 450 F.2d 353, 355 (8th Cir. 1971) (“It has long
been settled that jurisdiction to prevent persons from engaging in unfair labor practices
is exclusively vested in the Board and courts of appeals.”). Precision argues, however,
that although the district court has no jurisdiction to hear a claim of unfair labor
practices, the union could have styled its claim of unfair labor practices as a breach of
the CBA, which the district court would have had jurisdiction to hear pursuant to 29
U.S.C. § 185. Precision’s reasoning is flawed, for “[W]hen an activity is arguably
subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to
the exclusive competence of the National Labor Relations Board . . . .” San Diego
Bldg. Trades Council v. Garmon, 359 U.S. 236, 245 (1959)(emphasis added). The
unfair labor practices alleged in this claim are more than just “arguably” subject to
section 8 of the Act; they fall squarely within its purview, and the district court would
have been required to defer to the Board for adjudication of those alleged violations.
III.
Precision contends that substantial evidence does not support the Board’s finding
of unfair labor practices. As a successor employer, Precision is generally free to set its
own terms and conditions of employment. Because Precision has continued the
predecessor’s business in substantially the same form, however, Precision is obligated
to bargain with the union if a majority of Precision’s work force were also the
predecessor’s employees. See U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1315 (7th
Cir. 1991) (citing Fall River Dyeing and Finishing Corp. v. NLRB, 482 U.S. 27, 47
(1987)). Discriminatory hiring decisions and a refusal to employ former employees in
order to avoid bargaining obligation constitute a violation of section 8(a)(3) of the Act.
Id. The question, then, is whether the hiring procedures reflected an attempt by
Precision to avoid its bargaining obligation.
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Even though an employer may have legitimate justifications for its actions, such
actions may still constitute unfair labor practices if anti-union animus was also a
motivating factor.5 In cases where mixed or dual motives exist, we apply the test set
forth in Wright Line, 251 N.L.R.B. 1083 (1980), to determine whether the employer
has engaged in unfair labor practices:
First, we shall require that the General Counsel make a prima facie
showing sufficient to support the inference that protected conduct was a
“motivating factor” in the employer’s decision. Once this is established,
the burden will shift to the employer to demonstrate that the same action
would have taken place even in the absence of the protected conduct.
Id. at 1089 (footnote omitted). The Board may infer unlawful motivation from direct
and circumstantial evidence and is “‘permitted to draw reasonable inferences, and to
choose between fairly conflicting views of the evidence.’” Concepts and Designs, Inc.
v. NLRB, 101 F.3d 1243, 1245 (8th Cir. 1996) (citations omitted).
We afford “great deference to the Board’s affirmation of the ALJ’s findings.”
Town and Country Elec., Inc. v. NLRB, 106 F.3d 816, 819 (8th Cir. 1997). The
Board’s order will be enforced “if the Board has correctly applied the law and its
factual findings are supported by substantial evidence on the record as a whole, even
if we might have reached a different decision had the matter been before us de novo.”
Id. Although in the past we have applied a “shock the conscience” standard of review
5
The ALJ alternatively found, and the Board agreed, that general counsel had
established that Precision’s sole motivation in implementing the hiring practices was
to discriminate against employees based on their union affiliation. In light of our
conclusion that substantial evidence supports a finding of mixed motives, we do not
address this issue.
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to an ALJ’s credibility determinations, we have recently indicated a preference for
considering credibility determinations “with the rest of the NLRB’s factual findings
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under the general substantial evidence test derived from Universal Camera Corp. v.
NLRB, 340 U.S. 474 (1951).” Id. We conclude that the record reveals that the
Board’s findings and its credibility determinations are supported by substantial
evidence.
A. Substantial evidence supports the Board’s credibility determinations.
The ALJ conducted an exhaustive analysis of the testimony and made detailed
findings as to the credibility of the witnesses, as evidenced by his fifty-two page
opinion. In crediting Connor’s and Key’s testimony, the ALJ found that while there
were some variations in their accounts of the events that took place, these
inconsistencies were minor and did not relate to the substance of their allegations.
Other evidence tending to detract from Connor’s and Key’s credibility was likewise
insubstantial and was refuted by evidence to the contrary. For instance, although there
was testimony that Connor was bitter about being fired and that he wished to “get back
at” Precision, that evidence was offset by the fact that Connor first raised the issue of
the discrepancy in hiring procedures sometime in October of 1988, which was prior to
his March 1989 termination. Connor’s willingness to cooperate in helping with
Precision’s customers even after his termination further refutes the assertion that his
accusations were motivated by revenge. The ALJ remarked that during their testimony
neither Connor nor Key appeared to harbor animosity or bitterness toward Precision.
Furthermore, Connor’s credibility and the veracity of his allegations are bolstered by
the fact that even after Connor questioned Precision about its motives in implementing
the hiring procedures, he was made vice president of Precision and given a pay raise.
We also conclude that sufficient evidence exists to affirm the ALJ’s decision to
discredit the testimony of Alford, Gaddy, and Nowak. These witnesses’ accounts of
events are not only self-contradictory, but at times also contradict each other. In
addition, even after the decision had been made to close the Little Rock facility, Alford
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and Gaddy admittedly lied to Connor about the possibility of the Little Rock plant
remaining open.
B. Substantial evidence supports the Board’s finding that anti-union animus was
a motivating factor behind Precision’s hiring decisions.
We also conclude that substantial evidence supports the Board’s finding that
anti-union animus was a motivating factor in Precision’s implementation of the hiring
procedure.
Alford testified that Precision officials learned in August or September of 1988
that if it hired more than fifty percent of Universal Die’s work force, it would have to
bargain with the union. It was during this time period that Precision decided to
implement the hiring procedure.
As indicated earlier, when first questioned by Connor about the differences in
hiring procedures, Alford gave as a reason the fact that the Malvern plant was not as
busy as the Little Rock plant and that higher insurance costs mandated the physical
examinations at Malvern. This explanation, however, was never asserted during the
investigation or at trial. Connor testified that the next time he questioned Alford about
the reason for the different procedures, Connor remarked that it was to get rid of the
union. Connor testified that Alford never denied the statement, but instead told Connor
to never say that. Connor testified that three or four subsequent conversations about
the hiring procedures at Malvern revealed that it was an attempt by Precision to keep
its new work force to less than fifty percent former Universal Die employees so as to
avoid having to bargain with the union. Precision’s witnesses never explicitly denied
making remarks about getting rid of the union, testifying only that they “didn’t
remember” or were “not aware” of those statements.
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Connor also testified to conversations with Nowak in which they discussed the
fifty percent ratio. Connor stated that he and Nowak frequently discussed the progress
of the hiring procedure and specifically the number of former Universal Die employees
that had been hired up to that point. Connor recalled that about a month after Precision
had purchased Universal Die, Nowak told him that things looked good because only
seventeen of the forty-three employees hired were former Universal Die employees.
Connor also stated that Nowak told him that the less Connor knew, the better, because
they would ultimately end up going to court.
Connor also testified about a meeting with Nowak and Universal Die’s former
owner, Lou Zachery. Connor testified that he heard Zachery say that union
representation was costly and caused many headaches and that he had made a mistake
in not getting rid of the union at Malvern. When questioned about these remarks,
Nowak did not contradict them, but merely stated that Precision’s relationship with the
union was good.
Anti-union motivation is also evident from the reasons why many of the alleged
discriminatees were not hired. Eight of the alleged discriminatees were rejected
because they had entered too high a wage rate on their applications. Several of these,
however, also indicated that they would accept a reasonable or compatible rate. Three
were not hired because their medical information was incomplete; however, all three
had been Universal Die employees for the previous eleven years and all of the
requested information was contained in their personnel files. One applicant was
rejected because he failed to list his industry experience; he had been an employee
with Universal Die for twenty-three years and had indicated that he had a total of forty
years’ maintenance experience. The ALJ noted that six non-Universal Die applicants
had been hired despite similar omissions in their applications. An additional seven
former Universal Die employees were rejected because of medical limitations. Some
of the purported limitations were unrelated to positions for which the applicants
applied, however, and some of these applicants were rejected despite their past
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demonstrated ability to perform the job. Eight non-Universal Die employees were
hired even though they had attained test scores for which Universal Die applicants were
eliminated. Eight Universal Die applicants were rejected because they failed the back
x-ray, even though they were actively employed before the October 14 closing. Two
union officers that passed the tests were never notified to take the physical exams and
thus were not considered for employment.
Viewing the record as a whole, then, we conclude that substantial evidence
exists to support the ALJ’s finding of anti-union animus, and the first element of the
Wright Line test has therefore been satisfied.
C. Precision has not met its burden of showing that it would have taken the same
action absent its anti-union animus.
Gaddy and Alford testified that the hiring procedure was implemented in large part
because of Precision’s desire to implement statistical process control (SPC), a process
which relies less on inspections at the end of the production process and more on the
involvement of the workers to detect problems during production and at the earliest
possible stage. The ALJ discredited that testimony not only because of Gaddy’s and
Alford’s pecuniary motives and contradictory testimony, but also because they
admittedly never advanced that reason during the entire investigation. Moreover,
Alford never stated that SPC was the reason in his affidavit to the Board, either initially
or when given the chance to review his affidavit and make additions or deletions. The
ALJ also pointed out that although SPC-capability was allegedly such an overriding
concern, neither Gaddy nor Alford questioned anyone about SPC-capability prior to
purchasing Universal Die. Moreover, the assertion that an entire new workforce was
needed in order to implement SPC is refuted by Gaddy’s and Alford’s testimony that
Universal Die was purchased because they thought it was SPC-capable. Furthermore,
other evidence indicated that an SPC program was already to some extent in place at
Universal Die-Malvern.
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Precision also claims that its change in operations from mostly proprietary work
to all custom work warranted the hiring of a new work force and created the need for
the hiring procedures used. Nowak’s testimony, however, reveals that he was given
instructions to devise a hiring procedure in September of 1988, which according to the
ALJ’s findings was well in advance of any discussions that Nowak had about Universal
Die employees’ new job functions. Another fact that belies the assertion that custom
work warranted the new work force is that, according to Precision’s own witnesses, the
only difference between custom and proprietary work is ownership of the dies -- the
die is owned by the customer in custom work, while Precision owns the dies for
proprietary work. In addition, Alford admitted that the same basic jobs that were done
at Malvern before the sale continued to be performed there even after the sale to
Precision. Those facts, along with the facts that Malvern was already doing some
custom work and Little Rock was doing all custom work, refute Precision’s assertion
that a new work force was mandated by the change in operations.
The alleged need for the physical and x-ray examinations is contradicted by the
fact that the new castings that were to be made at Precision were only a few pounds
heavier than the previous castings and that many of them were very light, weighing only
one to three pounds.
Alford stated that the reason for the testing and examinations was that with the
changes planned at Universal Die-Malvern, the work and equipment would be more
sophisticated and the required engineering and intellectual capacity of the workers
would be greater. Alford admitted, however, that the work at the Alabama plants,
which were both non-union, involved greater degrees of sophistication and engineering,
yet no testing of any sort was done there. Maintenance applicants were required to
take the NTMA tests despite the fact that those tests are not recommended for testing
in that position. The NTMA tests are appropriate to test machinists and tool and die
makers, yet the NTMA tests were not given to such employees at the non-unionized
Alabama plants, where manufacturing and major repairing of dies was done.
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The dexterity tests were devised by Bakr, Nowak, and Watson, none of whom had
experience in developing and applying tests for hiring employees for die casting
positions. There was no evidence to show that Bakr was instructed by Alford or Gaddy
to design tests that would specifically identify SPC qualities, and the tests were not
shown to test for abilities relating to functions of either SPC or non-SPC die casting.
The passing scores for the tests were likewise arbitrary and were established only after
more than 200 of the tests had been reviewed.
Significantly, although Watson admitted that experience was, overall, the best
indicator of job performance, experience was in no way factored into the screening
process.
We conclude that substantial evidence supports the Board’s finding that the
proffered reasons for implementing the hiring procedure were largely pretextual and
that Precision did not sustain its burden of showing that it would have taken the same
action even absent the unlawful motivation.
III.
Precision contends that the Board’s remedy exceeds its authority. In reviewing
this claim, we keep in mind that the Board has “primary responsibility and broad
discretion to devise remedies that effectuate the policies of the Act, subject only to
limited judicial review.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898-99 (1984). The
“Board draws on a fund of knowledge and expertise all its own, and its choice of
remedy must therefore be given special respect by reviewing courts.” NLRB v. Gissel
Packing Co., 395 U.S. 575, 612 n.32 (1969). The remedy will be enforced “unless it
can be shown that the order is a patent attempt to achieve ends other than those which
can fairly be said to effectuate the policies of the Act.” Virginia Elec.& Power Co. v.
NLRB, 319 U.S. 533, 540 (1943); Packing House and Indus. Serv., Inc. v. NLRB, 590
F.2d 688, 697 (8th Cir. 1978).
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Ordering Precision to offer reinstatement and back pay is plainly within the
Board’s power, as it comports with the plain language of the Act. Section 10(c) of the
Act provides that the Board may order that a violator “cease and desist from such
unfair labor practice, and to take such affirmative action including reinstatement of
employees with or without backpay, as will effectuate the policies [of the Act].” 29
U.S.C. § 160(c).
The order likewise comports with the policies underlying the Act. The goal of a
remedial order is to restore “the situation, as nearly as possible, to that which would
have obtained but for the [unfair labor practices].” Phelps Dodge Corp. v. NLRB, 313
U.S. 177, 194 (1940). Ordering Precision to offer reinstatement and backpay to the
discriminatees is directly aimed at and fulfills that purpose. See Packing House and
Indus. Serv., Inc., 509 F.2d at 697. (“An order requiring reinstatement and backpay is
aimed at ‘restoring the economic status quo that would have obtained but for the
company’s [wrongdoing].’”) (citation omitted); see also Sure-Tan, Inc. v. NLRB, 467
U.S. at 900 (“the general legitimacy of the backpay order as a means to restore the
situation ‘as nearly as possible, to that which would have obtained but for the illegal
discrimination,’ is by now beyond dispute.” (citation omitted)).
Rescinding the unilateral changes in employment conditions likewise comports
with the polices of the Act. In fashioning the order, the ALJ correctly presumed that
without the discriminatory hiring practices the union’s majority status would have
continued, which in turn would have required that Precision bargain with the union
before making changes in employment terms. See U.S. Marine Corp., 944 F.2d at
1322. The Board’s remedy
is based on the established principles applicable to successors who
discriminate in order to avoid a bargaining obligation; such
employers lose the right to set initial terms and conditions of
employment and may be ordered to rescind any changes in those
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terms and compensate employees for losses in order to put them in
the position they would have been but for the employer’s unlawful
conduct.
Id. at 1323.
We have reviewed the remainder of the Board’s remedy and conclude that it does
not transgress the authority conferred upon the Board by the Act.
The petition for review is denied. Tthe Board’s order is enforced in its entirety.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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