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. *
The HONORABLE JOHN R. TUNHEIM, United States District Judge for the 1

District of Minnesota, sitting by designation.

At the time of the alleged violations, Precision was an entity separate from Pace 2

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-

___________

 Submitted: December 11, 1996

 Filed: July 1, 1997

___________

Before WOLLMAN and MURPHY, Circuit Judges, and TUNHEIM, District Judge. 1

___________

WOLLMAN, Circuit Judge.

The National Labor Relations Board (Board) found that Precision Industries, Inc.

(Precision) , violated sections 8(a)(1), (3), and (5) of the National Labor Relations Act 2

(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. 
Universal Die-Little Rock closed in 1989. None of the employees of that plant 3

are alleged discriminatees in this proceeding.

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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. Gaddy testified that Precision was interested in Universal Die because Universal 3

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 DieMalvern. 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
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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
-5-

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
-6-

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, 
The Board rejected the ALJ’s statement that he was compelled to find a

4

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. 

-7-

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
-8-

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. 
The ALJ alternatively found, and the Board agreed, that general counsel had

5

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. 

-9-

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. In cases where mixed or dual motives exist, we apply the test set 5

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
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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
-11-

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. 
-13-

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
-14-

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. 
-15-

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. 
-16-

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). 
-17-

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
-18-

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.