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. TUNHEI M, 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 Indust ries, 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 Americ a (UAW) (the union); that Pre cision did so in order to avoid recognizing and bargaining with th e union; and that Precision did in fact refuse to recognize and bargain with the
un ionand unilaterally implemented changes in employment conditions. Precisio n petitions for review of the Board’s decision and order, and the Board cross petition s 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. -3- I.

Pace Indu stries, Inc. (Pace), is an aluminum die casting company located i n H a rrison, 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 b y 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 wa s 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 Un iversal Die acquisition, Gaddy and Ke enan, along with three others, also purchased two other non-union die castin g
co mpanies in Alabama. In January of 1990, Gaddy and Keenan purchased a n additional non-union die casting company. During the week of October 10, 1988, Precision ran newspaper advertisements soliciting job applications from the ge neral public for employment with Universal DieMalver n. The employees at Universal Die-Malvern were informed that to secur e continued employment they would have to submit applications. On October 14, 1988, Universa lDie-Malvern ceased operations and discharged all of its employees

. Universal Die-Malv ern plant manager, Mike Nowak, continued in his position, as did the majority of all managerial and salaried employees. The Universal Di e plant in Little Ro ck continued operations. Although its employees were required to complete a n applicat ion, all but two or three of those employed before the purchase by Precisio n were rehired without any thorough review of the applications. Precision implemented an elaborate hiring procedure at the Malv ern plant, which cost betw een $75,000 and $100,000 to implement, caused an interruption i n production, and resulted in a six to eight week hiring process, which Precision admitted-4-

j e opardized its commitments to its customers. Applicants were required to complete
a ninet een-page application, which included an eight-page section requestin g inf ormation such as the applicant’s name, address, education, and work history. The application included a five-page medi cal questionnaire section, followed by a six-page short-answer essay section. Before former Universal Die employees’ appl ications were considered, their personnel files were reviewed, with a nota tion being made concerning the employees’ attendance records, disciplinary actions, and medical limitations.
Applicants who made it through the initial screening and review were the n required to undergo a battery of verbal, numerical, and dexterity tests. Dr. Mamdouh Bakr, an industrial eng ineer whose expertise was in retraining existing employees and not in hiring new employees, was hired to assist in this phase of the hiring process

. Ma lvern plant manager Nowak and Precision’s industrial engineer, David Watson , were also recruited to help in this phase of the process. Neither Nowak nor Watso n appears to h ave had any experience in devising and applying tests designed to fin d suitable die casters.
Appli cants who applied for tool and die and maintenance positions wer e subjected to the National Tool and Machine Association (NTMA) tests, whic h consis ted of mechanical comprehension, verbal, mathematics, and problem-solvin g tests. Although th e NTMA tests are not ordinarily given to maintenance employees, maintenance applic ants were also given NTMA tests, as well as an applied electricity t e st. It is not clear who set the cut-off score for the NTMA tests or how that number was determined. Oth er applicants were given Personnel Tests for Industry (PTI) and dexterit y tests. The verbal part of the PTI consisted of fifty multiple-choice questions o n de fining words and identifying the non-relationship of words and phrases. Th e 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-

togethe r, 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 ha d reviewed a number of the test scores. A five-point bonus was given to forme r Universal Die employees.

Dr. B akr designed the dexterity tests, which purportedly tested for speed an d accuracy. The tests included a “pegboard test,” which consisted of inserting wooden dowels into holes; a “sorting card test,” which entailed arranging c ards according to the numb er of holes per card; and a “paint test,” which required the applicant to put fla t steel wa shers onto spokes and then remove them. Watson, who admittedly had n o testing expertise, was given the responsibility of establishing time limits and penalties for the dexterity tests.

New ap plicants who successfully completed these tests advanced to the nex t phase of the hiring procedure -- physical examinations and x-rays. Former Universal Die empl oyee-applicants, however, were further reviewed before advancing to thi s 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 th e 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 th e former employees at that plant. The employees of the three other non-union die casting compani es 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 Precisio n officials about the differences in hiring procedur es. Although Connor was initially told-6-

th atthe Malvern plant was not as busy as the Little Rock plant and had highe r insurance costs, those reasons were never advanced during the investigation or at trial. Rather, Pr ecision officials testified before the administrative law judge (ALJ) that the
re ason for the difference was the institution of new operating procedures. Conno r testifie d that he asked whether the hiring procedures were an effort to keep out th e union, and that his suspicions were later confirmed by Precision officials. Precisio n official s never denied Connor’s accusations, but testified that they told Connor th e uni on was not the reason. Connor and Key were later fired for alleged differences in business philosophies. Of th e 103 former Universal Die-Malvern employees that applied, only som e twenty-two were ultimately rehired. Sixty-two of those that were rejected are alleged discrimi natees in this action, which was brought by the union and charged Precisio n with engaging in unfair labor practices. The ALJ concluded that Precision refused to hire t hose sixty-two former Universal Die-Malvern employees because of their union affiliation and in order to avoid rec ognizing and bargaining with the union, in violation of sections 8( a)(1) and (3) of the Act. In addition, the ALJ found that Precisio n viol ated section 8(a)(5) of the Act by unilaterally changing the preexisting conditions of employment. The A LJ’s proposed remedy included a directive that Precision offer th e discriminatees reinstatement, make them whol e 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 fro m failing and refusing to hire former Universal Die-Malvern employees; from refus ing to recognize and bargain with the union; from unilaterally setting and changing terms and conditions of ba rgaining 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 Bo ard 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. Th e Board po inted 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 requir ed to do so. The Board, however, affirmed the ALJ, agreeing that anti-unio n animus was shown through direct evidence as well.
-7- form, or assist any union. The Board affirmed the ALJ’s rulings, findings, an d
co nclusions, subject to some modifications, and adopted the recommended order. 4

II.

Precis ion’s first argument is that res judicata bars enforcement of the Board’ s order. Precision a

rgues 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 al leged that Precision had breached the purchase agreement by refusing to pay plan-provided health and life insurance benefits e stablished in the collective bargaining agreemen t

(CBA), thereby violating the Employee Retirement Income Security Ac t (ERISA), 29 U.S.C. § 1001 et. seq. The district court found that Precision had no t agreed to assume the insurance benefits program and dismissed the action.
“Under the doctrine of res judicat a, 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 o f action.” Parklane Hosiery Co., Inc. v. Shore , 439 U.S. 322, 326 n. 5 (1979). Although res j udicata 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, 9 4 (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 th at could have been raised in the earlier proceeding, for an allegati on 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 pers ons from engaging in unfair labor practices is exclusively vested in the Board and courts of appea ls.”). Precision argues, however, that altho ugh the district court has no jurisdiction to hear a claim of unfair labo r 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 2 9 U.S.C. § 18 5. Precision’s reasoning is flawed, for “[W]hen an activity is arguabl y 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 Dieg o Bldg. Trad es Council v. Garmon , 359 U.S. 236, 245 (1959)(emphasis added). Th e unfair labor practices alleged in this claim are more than just “arguably” subject t o 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 t erms and conditions of employment. Because Precision has continued th e predecessor’s business in substan tially the same form, however, Precision is obligated to b argain with the union if a majority of Precision’s work force were also th e 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, 4 7 (1987)). Discriminatory hirin g decisions and a refusal to employ former employees in order to avoid bargaining obligation constitut e a violation of section 8(a)(3) of the Act. Id. The question, then, is whether the hiring procedures reflected an attempt b y Precision to avoid its bargaining obligation.T he ALJ alternatively found, and the Board agreed, that general counsel ha d 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 ou r conclusion that substantial evidence supports a finding of mixed motives, we do no t address this issue.
-9- Even though an employer may have leg itimate 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 forthin 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 faci e showing sufficient to support the inference that protected conduct was a “motivating factor” i n 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 evide nce.’” 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). Th e Board’s or der will be enforced “if the Board has correctly applied the law and it s factual findings are supported by substantial evidence on the record as a whole, even if we might have reach ed a different decision had the matter been before us de novo.” Id. Although in the past we have appli ed a “shock the conscience” standard of review-10-

to an ALJ ’s credibility determinations, we have recently indicated a preference fo r 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 th e Bo ard’s findings and its credibility determinations are supported by substantia l evidence.
A. Substantial evidence supports the Board’s credibility determinations

.
T he 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 pag e opi nion. In crediting Connor’s and Key’s testimony, the ALJ found that while ther e
were some variations in their accounts of the events that took place, thes e incons istencies 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 likewis e insubstantial and was refuted by evidence to t he 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 procedure s sometime in October of 1988, which was prior to his March 1989 termination. Connor’s willingness to cooperate in helping with Precisio n’s customers even after his termination further refutes the assertion that hi s accusations were motivated by revenge. The ALJ remarke d that during their testimony
ne ither 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 ques tioned Precision about its motives in implementing the hiri ng procedures, he was made vice president of Precision and given a pay raise.

We also conclude that suff icient evidence exists to affirm the ALJ’s decision to discredit the testimony of Alford, Gaddy, and Nowak. These witnesses’ accounts of
even ts are not only self-contradictory, but at times also contradict each other. I n addition, even after the decision had been made to close the Little Rock facility, Alford-12-

and Gaddy admittedly lied to Connor about the possibility of the Little Rock plan t remaining open.

B. Substantial evidence supports the Board’s finding that anti-union a nimus was a motivating factor behind Precision’s hiring decisions.

We also conclude that substantial evidence supports the Board’s finding tha t anti-unio n 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 bar gainwith the union. It was during this time period that Precision decided t o implement the hiring procedure.

As indicated earlier, when first questioned by Connor about the differences i n 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 physica l
ex aminations at Malvern. This explanation, however, was never asserted during th e investigation or at trial. Connor testif ied 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 hir ing 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 havin g to bargain with the union. Precision’s witnesses never explicitly denied mak ing remarks about getting rid of the union, testifying only that they “didn’ t remember” or were “not aware” of those statements.-13-

Connor also test

ified to conversations with Nowak in which they discussed the fifty percent ratio. Connor stated that he and No wak frequently discussed the progress of the hiring procedure and specifically the numbe r of former Universal Die employees that had been hired up to that point. Connor recalled that a bout a month after Precision had purchased Universal Die, Nowak told him that things looked good because only seventee n

of the forty-three employees hired were former Universal Die employees

. Connor also stated that Nowak told him that th e less Connor knew, the better, because they would ultimately end up going to court.

Conn or also testified about a meeting with Nowak and Universal Die’s former owner, Lou Zachery. Connor testified that he heard Zachery say that unio n representation was costly and caused many headaches and that he had made a mistake in no t getting rid of the union at Malvern. When questioned about these remarks , Nowak did not contradict them, but merely stated t hat Precision’s relationship with the union was good.

Anti-union motivation is alsoevident from the reasons why many of the alleged discrim inatees were not hired. Eight of the alleged discriminatees were rejecte d because t hey 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 U niversal Die employees for the previous eleven years and all of th e reque sted information was contained in their personnel files. One applicant wa s rejected because he failed to list his industry experience; he had been an employe e with Universal Die for twenty-three years a nd had indicated that he had a total of forty years’ maintenance

experience. The ALJ noted that six non-Universal Die applicants had been h ired despite similar omissions in their applications. An additional seve n former Univer sal Die employees were rejected because of medical limitations. Some of the purported limitations were unrelated to positions for which the applicant s applied, however, and some of these applicants were rejected despite their past-14-

demonstrated ability to perform the job. Eight non-Universal Die employees wer e hired even though they had attained test scores for which Universal Die a pplicants were eliminated. Eight Universal Die applicants were rejected because they failed the back x-ray, e ven though they were actively employed before the October 14 closing. Two union officers that passe d the tests were never notified to take the physical exams and thus were not considered for employment.

Vi ewing the record as a whole, then, we conclude that substantial evidenc e exists to support the ALJ’s finding of anti-union animus, and the first element of th e Wright Line test has therefore been satisfied.

C. Precision has not met its burden of showing that it would have taken th e 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 impl ement statistical process control (SPC), a process wh ich relies less on inspections at the end of the production process and more on the involve ment

of the workers to detect problems during production and at the earlies t po ssible stage. The ALJ discredited that testimony not only because of Gaddy’s and Alfor d’s pecuniary motives and contradictory testimony, but also because the y admitte dly 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 h is affidavit and make additions or deletions. The AL J also pointed out that although SPC-capability was allegedly such an overridin g concern, neither Gaddy nor Alford questioned anyone about SPC-capability prior t o purchasing U niversal Die. Moreover, the assertion that an entire new workforce was need ed in order to implement SPC is refuted by Gaddy’s and Alford’s testimony that Universal Die was purchased becausethey thought it was SPC-capable. Furthermore,
o t her evidence indicated that an SPC program was already to some extent in place at Universal Die-Malvern.-15-

Pre cision also claims that its change in operations from mostly proprietary work to all cust om 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 procedur e in September of 1988, which according to the ALJ’s findings was well in advance of any discussions that Nowak had about Universal Die empl oyees’ new job functions. Another fact that belies the assertion that custom work warranted the new work force is that, according to Precision’s ow n witnesses, the only difference between custom and proprietary work is ownership of the dies -- th e die is owne d by the customer in custom work, while Precision owns the dies fo r proprietary work. In addition, Alford admitted th at the same basic jobs that were done at Malvern before the sale continued to be performed there even after the sale t o Precision. Those facts, along with the facts that Malvern was already doing som e 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 th e fa ctthat the new castings that were to be made at Precision were only a few pound s 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 th e change s planned at Universal Die-Malvern, the work and equipment would be mor e sophist icated and the required engineering and intellectual capacity of the worker s would be greater. Alford admitted, however, that the work at the Alabama plants , which were both non-union, involved greater degrees of sophisticat ion and engineering, yet n o testing of any sort was done there. Maintenance applicants were required t o 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-unionize d Alabama plants, where manufacturing and major repairing of dies was done.-16-

The dexterity tests were devised by Bakr, Nowak, and Watson, none o f whom had exp erience in developing and applying tests for hiring employees for die castin g positions. There was no evidence to show that Bakr was instructed by Alfor d or Gaddy to design t ests that would specifically identify SPC qualities, and the tests were no t shown to test for abilities relating to functions of either SPC or non-SPC die casting. The passing scores for the tests were likewise arb itrary and were established only after more than 200 of the tests had been reviewed.
Signific antly, although Watson admitted that experience was, overall, the bes t indi cator of job performance, experience was in no way factored into the screenin g process.

We conclude that substantial evidence supports the Board’s finding that th e proffered reasons for implementing the hiring procedure were largely pretextual an d that Precisio n 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 reviewin g this claim, we keep in mind that the Board has “primary responsibility and broa d discret ionto devise remedies that effectuate the policies of the Act, subject only t o limited judicial review.” S ure-Tan, Inc. v. NLRB , 467 U.S. 883, 898-99 (1984). The “Board dr aws on a fund of knowledge and expertise all its own, and its choice o f remedy must therefore be given special respe ct 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 e ffectuate 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-

Orderi ng Precision to offer reinstatement and back pay is plainly within th e Board’s power, as it comports with the plai n language of the Act. Section 10(c) of the Act provides that the Board may order that a violator “cease and desist from suc h unfa ir labor practice, and to take such affirmative action including reinstatement o f emp loyees with or without backpay, as will effectuate the policies [of the Act].” 2 9 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 practice s].” Phelps Dodge Corp. v. NLRB , 313 U.S. 17 7, 194 (1940). Ordering Precision to offer reinstatement and backpay to th e discrim inatees is directly aimed at and fulfills that purpose. See Packing House an d 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 th e company’s [wrongdoing].’”) (citation omit ted); see also Sure-Tan, Inc. v. NLRB , 467 U.S. at 900 (“ the general legitimacy of the backpay order as a means to restore th e situation ‘as nearly as possible, to that which would have obtained but for the illegal discrimination,’ is by now beyond dispute.” (citation omitted)).

Rescin ding the unilateral changes in employment conditions likewise comport s 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 hav e continued, which in turn would have required that Precision bargain with the unio n before making changes in employment terms. See U.S. Marine Corp. , 944 F.2d a t 1322. The Board’s remedy

is based on the established principles applicable to successors who disc riminate in order to avoid a bargaining obligation; suc h emplo yers lose the right to set initial terms and conditions o f 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. T the Board’s order is enforced in its entirety.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.