United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2008 Decided June 30, 2009 

No. 07-1439 

S&F MARKET STREET HEALTHCARE LLC, D/B/A WINDSOR 

CONVALESCENT CENTER OF LONG BEACH, 

PETITIONER

v. 

NATIONAL LABOR RELATIONS BOARD, 

RESPONDENT

Consolidated with 07-1502 

On Petition for Review and Cross-Application for 

Enforcement 

of an Order of the National Labor Relations Board 

John H. Douglas argued the cause and filed the briefs for 

petitioner. 

Amy H. Ginn, Attorney, National Labor Relations Board, 

argued the cause for respondent. With her on the brief were 

Ronald E. Meisburg, General Counsel, John H. Ferguson, 

Associate General Counsel, Linda Dreeben, Deputy Associate 

General Counsel, and Jill A. Griffin, Supervisory Attorney. 
2 

Meredith L. Jason and Jason Walta, Attorneys, entered 

appearances. 

Before: GINSBURG and HENDERSON, Circuit Judges, and 

RANDOLPH, Senior Circuit Judge. 

 Opinion for the Court filed by Circuit Judge GINSBURG. 

 GINSBURG, Circuit Judge: When S&F Market Street 

Healthcare LLC acquired a nursing home previously operated 

by a different company, it decided to meet its immediate 

staffing needs in part by offering temporary employment to 

employees of the prior operator. S&F informed the 

employees it would consider hiring those who met S&F’s 

“operational needs” and it would hire them on an at-will 

basis, subject to a probationary period, to various drug and 

background checks, and to their signing an arbitration 

agreement. When it began operations, S&F implemented 

these and other new terms and conditions of employment. 

 The National Labor Relations Board later held that, 

because S&F failed to notify the employees that the terms and 

conditions of their employment would change, S&F was a 

“perfectly clear” successor within the meaning of NLRB v. 

Burns International Security Services, 406 U.S. 272 (1972). 

As such, S&F was bound by the collective bargaining 

agreement (CBA) between its predecessor and the Service 

Employees International Union and had violated § 8(a)(1) and 

(5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) 

and (5), by unilaterally changing the terms and conditions of 

employment prescribed in that CBA. Consequently, the 

Board ordered S&F to restore the preexisting terms of 

employment and to make the employees whole with back pay. 

S&F petitions for review, and the Board cross-appeals for 

enforcement, of that order. 
3 

 We hold the Board erred in concluding S&F was a 

“perfectly clear” successor and was not entitled to implement 

new terms and conditions of employment. We therefore grant 

in part the petition for review and deny in part enforcement of 

the Board’s order. We enforce the Board’s order as it relates 

to matters S&F does not contest. 

I. Background 

 S&F Market Street Healthcare LLC (d/b/a Windsor 

Convalescent Center of North Long Beach) is affiliated with a 

chain of nursing and assisted living facilities managed by SnF 

Management and operated under the Windsor name. In 2004 

S&F purchased Candlewood Care Center from Covenant Care 

Orange Inc. Covenant Care had collective bargaining 

agreements with the SEIU, Local 434B, covering two 

different bargaining units at Candlewood. 

 Prior to assuming control of the Candlewood facility, 

S&F concluded it would need to increase the level of care, 

replace the staff, and renovate the building. Closer to taking 

over on July 1, 2004 S&F decided it could not replace the 

entire staff at once because the turnover would be too 

disruptive to the residents. Instead, S&F decided to hire some 

of Candlewood’s employees for up to 90 days while it 

continued to recruit new employees. 

 In June 2004 S&F caused applications for employment to 

be distributed to the existing staff. A cover sheet informed 

the employees that S&F “intends to implement significant 

operational changes” and “[c]urrent Candlewood employees 

interested in positions with [S&F] must submit the attached 

application for employment.” Further, it advised, only 

“[a]pplicants who meet the [Company’s] operational needs 

will be interviewed,” and any offer of employment “will be 
4 

contingent on your passing a pre-employment physical, drug 

test and acceptable reference and background checks.” The 

job application itself required the applicant to affirm his or her 

understanding that successfully passing the tests and checks 

was a condition of employment, that any employment would 

be at will, and that S&F “can change benefits, policies and 

conditions at any time.” 

 At the end of June, S&F interviewed all the Candlewood 

employees who had submitted applications. In each 

interview, the applicant was informed that any possible 

employment would be temporary and would last no more than 

90 days. 

 S&F’s director of human resources sent to each employee 

who was selected a letter dated June 30 with the subject line 

“OFFER OF TEMPORARY EMPLOYMENT.” The letter 

explained, “As a temporary employee of Windsor, you are not 

eligible for company benefits. ... Other terms and conditions 

of your employment will be set forth in Windsor’s personnel 

policies and its employee handbook.” The letter further stated 

the employment was temporary because S&F had not yet 

been able to assess the employee’s “skills and abilities” or 

“the building’s ongoing operational and staffing needs.” It 

also noted that employment was at will and that “[n]o later 

than the expiration of the 90-day period, which ends on 

September 29th, your employment with Windsor will end, 

unless you are selected for regular employment.” In order to 

accept the offer the addressee was required to sign and date 

the letter. Those hired also had to sign an “Agreement to be 

Bound by Alternative Dispute Resolution Policy,” which 

provided that arbitration would be the exclusive means of 

resolving all disputes relating to termination of employment, 

unlawful discrimination, and sexual harassment. 
5 

 S&F began operations on July 1 with approximately 120 

employees. Most were former Candlewood employees newly 

employed on a temporary basis; 10 to 12 had not been 

employed by Candlewood. Seventeen Candlewood 

employees were not employed either because they had not 

applied or because they were not chosen. 

 At a staff meeting on July 9, S&F distributed to the 

employees handbooks describing Windsor’s policies and its 

terms and conditions of employment. The temporary 

employees received a handbook dated July 1, 2004 that did 

not include information about employer-provided benefits. 

The “regular” employees (i.e., those who had not worked for 

Candlewood) received a handbook dated January 1, 2004, 

reflecting the most recent revision of Windsor’s system-wide 

policies; this version did include information about employerprovided benefits. 

 S&F continued over the next three months to replace 

former Candlewood employees with new employees. By 

October 1 a majority of the company’s employees had been 

hired from outside the Candlewood staff; some 30-40 of the 

Candlewood employees hired initially as temporary 

employees had been hired for regular employment and given 

the January 1 version of the handbook. 

 Also following the takeover, S&F invested about 

$500,000 to renovate the facility. Among other changes, S&F 

repainted the employee lounge and the hallway where 

Candlewood had hung a bulletin board for the use of the 

Union, at which time S&F removed the bulletin board. 

 Meanwhile, on July 1 the Union requested bargaining 

with S&F. The Company responded on July 7 that it had not 

yet hired a representative complement of employees, so the 
6 

Union’s demand for bargaining was premature. The Union 

filed unfair labor practice charges, and the Board General 

Counsel issued a complaint alleging that when S&F began 

operating the facility on July 1, 2004, it became “a successor 

to Candlewood” but refused to bargain with the Union, in 

violation of § 8(a)(1) and (5) of the Act. The complaint 

further alleged that since July 1, 2004 S&F had made 

unilateral changes at the former Candlewood facility — 

removing union-related materials from a bulletin board, 

prohibiting the posting of union materials, and implementing 

new employment policies — again in violation of § 8(a)(1) 

and (5), and had violated § 8(a)(3) in several ways unrelated 

to the issue of successorship. 

 Following a hearing, an Administrative Law Judge found 

S&F was a successor to Candlewood. According to the ALJ, 

the “temporary” employees were actually akin to probationary 

employees because their work was to be evaluated during the 

period of temporary employment and they did not have a 

definite anticipated termination date. Therefore the temporary 

employees could be counted in determining whether S&F had 

a substantial and representative complement of employees, 

and whether a majority of that complement were from 

Candlewood, when S&F began operations on July 1. Having 

answered both questions in the affirmative, the ALJ 

concluded S&F was obligated to recognize and to bargain 

with the Union as of July 1. 

 At the same time, the ALJ found S&F, although a 

successor to Candlewood, was not a “perfectly clear” 

successor because S&F’s pre-employment communications to 

the Candlewood employees put them on notice that the terms 

and conditions of their employment would change. 

Accordingly, although S&F was obliged to recognize and to 
7 

bargain with the Union, it was entitled first to establish the 

initial terms and conditions of employment. 

 The Board affirmed the ALJ’s finding that S&F was a 

successor to Candlewood but went on, with Member 

Schaumber dissenting, to hold (1) as a matter of law, S&F 

was a “perfectly clear” successor and, (2) as a matter of fact, 

had “failed to clearly announce its intent to establish a new set 

of conditions prior to inviting former [Candlewood] 

employees to accept employment.” Windsor Convalescent 

Ctr. of N. Long Beach, 351 N.L.R.B. 975, 980 (2007). The 

Board concluded, therefore, that S&F did not have the right 

unilaterally to set the initial terms and conditions of 

employment. S&F petitions for review solely of the legal and 

factual underpinnings of this determination. 

 The Board also held, and S&F does not contest, that S&F 

refused to hire four union stewards, suspended or terminated 

certain employees for engaging in protected activity, and 

informed employees the facility would be nonunion, all in 

violation of § 8(a)(1) and (3) of the Act; and, although a 

successor employer, S&F failed to recognize and to bargain 

with the Union, in violation of § 8(a)(5) of the Act. In 

keeping with this court’s “longstanding rule,” Carpenters & 

Millwrights, Local Union 2471 v. NLRB, 481 F.3d 804, 808 

(2007), “[t]he Board is entitled to summary enforcement of 

the uncontested portions of its order.” Flying Food Group 

Inc. v. NLRB, 471 F.3d 178, 181 (2006). 

II. Analysis 

 We turn now to the two rulings S&F does contest. First, 

the Board held S&F was not only a successor but a “perfectly 

clear” successor and therefore could not lawfully set the 

initial terms and conditions of employment, as it did in 
8 

issuing the employee handbooks and removing the union 

bulletin board, without first having bargained with the Union. 

Second, the Board held that, even if S&F were not a 

“perfectly clear” successor, it could not unilaterally change 

the terms and conditions of employment because, it found, 

S&F had not specifically announced the new terms prior to 

becoming the incumbent employer on July 1. 

 We must uphold an order of the Board unless it rests 

upon a finding not supported by “substantial evidence,” 29 

U.S.C. § 160(f), or the Board failed to apply the proper legal 

standard or departed from precedent without giving a 

reasoned justification therefor. Mail Contractors of Am. v. 

NLRB, 514 F.3d 27, 31 (D.C. Cir. 2008). In this case we 

conclude the Board erred in applying the exception in NLRB 

v. Burns International Security Services for “perfectly clear” 

successors. 406 U.S. at 294-95. In addition, its finding that 

S&F failed to notify the employees of its intent to establish 

new terms and conditions is unsupported by substantial 

evidence, and its conclusion that S&F could not implement 

any terms or conditions it had not specifically announced 

prior to July 1 is an unjustified departure from Board 

precedent. 

A. “Perfectly Clear” Successor Status 

 In Burns, the Supreme Court explained that, “although 

successor employers may be bound to recognize and bargain 

with the union,” except in rare circumstances “they are not 

bound by the substantive provisions of a collective-bargaining 

contract negotiated by their predecessors but not agreed to or 

assumed by them.” Id. at 284. The rare exception is for 

“instances in which it is perfectly clear that the new employer 

plans to retain all of the employees in the [bargaining] unit.” 

Id. at 294-95. That is, “a successor employer is ordinarily 
9 

free to set initial terms on which it will hire the employees of 

a predecessor,” but a so-called “perfectly clear” successor 

must bargain with the employees’ representative before it 

changes any terms to which its predecessor had agreed. Id.

 The “perfectly clear” exception is and must remain a 

narrow one because it conflicts with the “congressional policy 

manifest in the Act ... to enable the parties to negotiate for any 

protection either deems appropriate, but to allow the balance 

of bargaining advantage to be set by economic power 

realities.” Id. at 288. In the Board’s leading case on the 

“perfectly clear” exception, Spruce Up Corp., 209 N.L.R.B. 

194 (1974), enf’d per curiam 529 F.2d 516 (4th Cir. 1975), 

which came fast on the heels of Burns itself, the Board 

recognized the importance of the employer’s right to set the 

initial terms and conditions of employment and the correlative 

narrowness of the “perfectly clear” exception. The employer 

there had expressed a “general willingness” to hire his 

predecessor’s employees, but also announced he was going to 

change their commission rates. The employer “thereby made 

it clear from the outset that he intended to set his own initial 

terms, and that whether or not he would in fact retain the 

incumbent [employees] would depend upon their willingness 

to accept those terms.” 209 N.L.R.B. at 195. For that reason, 

it could not be said the employer “plan[ned] to retain all the 

employees in the unit” and the Board held the “perfectly 

clear” exception did not apply. Id. The Board explained: 

the caveat in Burns ... should be restricted to 

circumstances in which the new employer has 

either actively or, by tacit inference, misled 

employees into believing they would all be 

retained without change in their wages, hours, 

or conditions of employment, or at least to 

circumstances where the new employer ... has 
10 

failed to clearly announce its intent to establish 

a new set of conditions prior to inviting former 

employees to accept employment. 

Id. Thus, at bottom the “perfectly clear” exception is intended 

to prevent an employer from inducing possibly adverse 

reliance upon the part of employees it misled or lulled into not 

looking for other work. 

 The Board adhered to its original understanding of Burns 

as recently as Ridgewell’s, Inc., 334 N.L.R.B. 37 (2001), 

enf’d 38 Fed. Appx. 29 (D.C. Cir. 2002). In that case, the 

successor employer announced it would retain the incumbent 

employees but only as independent contractors. The Board 

found they continued to work as employees within the 

meaning of the Act rather than as independent contractors. 

334 N.L.R.B. at 37. Nevertheless, the employer’s 

announcement, although legally erroneous, was sufficient to 

avoid the “perfectly clear” exception because it “portended 

employment under different terms and conditions” and 

thereby put the employees “on notice that a new set of 

employment conditions would be in effect.” Id.

 In the present case the ALJ found S&F “informed the 

Candlewood applicants that they would be employed only in a 

temporary or probationary status for 90 days,” which “should 

have signaled to the applicants that terms and conditions of 

employment with [S&F] were not going to be identical with 

those of its predecessor.” 351 N.L.R.B. at 1001. As in 

Ridgewell’s, the employer’s announcement portended 

employment under different — indeed, significantly different 

— terms and conditions. Therefore, the ALJ held S&F did 

not violate the Act by setting the initial terms and conditions 

of employment. 
11 

 The Board, however, reversed the ALJ and applied the 

“perfectly clear” exception because it found S&F had failed to 

announce its intent to establish new terms and conditions 

before it invited the former Candlewood employees to accept 

employment. That finding is unsupported by substantial 

evidence. On the undisputed facts of this case, no employee 

could have failed to understand that significant changes were 

afoot. The cover letter attached to each job application 

foretold “significant operational changes,” identified various 

pre-employment checks and tests to be passed, and explained 

that any employment offered would be both temporary and at 

will. The Board discounted the cover letter on the ground that 

it “lacked any mention of intended changes to employees’ 

terms and conditions of employment.” Id. at 981. Yet under 

Candlewood’s collective-bargaining agreements with the 

Union, as any employee would know, each employee with 90 

days on the job had vested “seniority rights” and could not be 

terminated except for cause, which the Union could contest 

through the negotiated grievance and arbitration procedure. 

By announcing that any employment with S&F would be at 

will, therefore, S&F was announcing a very significant 

change in the terms and conditions of employment — both for 

those who had been employed by Candlewood for 90 days or 

more and for those who expected to be. In addition, by 

requiring its new employees to agree to its own alternative 

dispute resolution policy, S&F made it clear the grievance 

mechanism the Union had negotiated with Candlewood would 

not be available. 

 The Board not only muffed its reading of the record; it 

also misread Burns to require more from the successor 

employer than a portent of employment under different terms 

and conditions. Recall that the “perfectly clear” exception 

applies only to cases in which the successor employer has led 

the predecessor’s employees to believe their employment 
12 

status would continue unchanged after accepting employment 

with the successor. Here, as we have seen, the employees had 

every indication — from S&F’s job applications, interviews, 

and letters offering employment — that S&F intended to 

institute new terms of employment. Under a proper reading 

of Burns and Ridgewell’s, therefore, S&F cannot be 

considered a “perfectly clear” successor. 

 The Board attempts to distinguish Ridgewell’s as follows: 

“An announcement that workers will be hired as ‘independent 

contractors’ necessarily signals an intent to establish a new set 

of [employment] conditions, because it signals an intent to 

divest the predecessor’s employees of ‘employee’ status 

altogether.” Id. at 981 n.28 (internal citation and quotation 

marks omitted). That is obviously true but irrelevant: A 

successor need not signal an intent to divest the predecessor’s 

employees of their status as statutory employees in order to 

signal its intent, as did S&F here, to establish new terms and 

conditions of employment under which some of the 

predecessor’s employees may be hired. 

 The Board quibbles over when the employees may have 

received the June 30 offers of temporary employment, 

suggesting that some employees may have received their 

letters after S&F took over operations on July 1. The 

anachronism, if it occurred, changes nothing, however. First, 

as we have seen, the June 30 letter was not the only indication 

S&F provided to the Candlewood employees that the terms 

and conditions of their employment would change. 

Furthermore, because that letter was the very instrument by 

which the Company invited employees to accept employment 

with S&F, it was necessarily received “prior to inviting 

former employees to accept employment.” Spruce Up Corp., 

209 N.L.R.B. at 195. That some employees may have 

received the letter immediately after the Company took over 
13 

the operation rather than immediately before cannot make the 

crucial difference under Burns unless the employees were 

misled into expecting the terms of employment to continue 

wholly without change.∗

 

 

∗

 In that regard the Board recounts in a footnote testimony 

indicating three former Candlewood supervisors told employees not 

to worry about their employment prospects or future salaries. 351 

N.L.R.B. at 981 n.29. But, as the Board acknowledges, the ALJ 

made no finding that these statements occurred, id. at 981, let alone 

that they were made by agents of S&F, which argues, fairly enough, 

that former Candlewood supervisors were not authorized to speak 

for S&F. In any event, the statements do not contradict S&F’s 

announcement that any employment would be temporary and at 

will. As the Board recognized in Spruce Up, Burns was not meant 

to force an employer “to refrain from commenting favorably at all 

upon employment prospects of old employees for fear he would 

thereby forfeit his right to unilaterally set initial terms”; the 

“perfectly clear” exception must be read narrowly so as not to 

“encourage employer action contrary to the purposes of th[e] Act” 

or “discourage continuity in employment relationships for such 

legalistic and artificial considerations.” 209 N.L.R.B. at 195. 

 The only testimony that could provide support for the 

contention that S&F misled employees is that of a Candlewood 

employee who claimed S&F’s director of human resources, in 

responding to employees’ concerns about their wages being 

decreased, said “nothing was going to change.” In fact, the only 

relevant evidence in the record is that nothing about their wages did 

change during their period of temporary employment. In any event, 

the alleged statement was denied both by another Candlewood 

employee and by S&F’s human resources director and the ALJ did 

not resolve the dispute. Taking into account the totality of S&F’s 

communications to the Candlewood employees, even if credited 

this piece of evidence is insufficient to support a finding that S&F 

materially misled the Candlewood employees. See Pacific 

Micronesia Corp. v. NLRB, 219 F.3d 661, 665 (D.C. Cir. 2000) 

(“To meet the requirement of ‘substantial evidence,’ the Board 
14 

 Nevertheless, the Board concluded “there is no evidence 

that [S&F], prior to the takeover, informed Candlewood 

employees that those who were retained would be working 

under different core terms and conditions of employment.” 

351 N.L.R.B. at 981. We see two errors of law in this 

restatement of the “perfectly clear” standard. 

 First, the focus upon “core” terms and conditions 

misstates the rule, which is that the successor employer must 

simply convey its intention to set its own terms and conditions 

rather than adopt those of the previous employer. Granting 

that a trivial change in employment conditions may not 

suffice, there is no requirement in Burns or Spruce Up that the 

intended change(s) involve “core” terms. Whatever that term 

may mean, however, it surely includes instituting at-will 

employment and eliminating the negotiated grievance and 

arbitration procedure. 

 Second, the Board’s holding achieves precisely what 

Burns and Spruce Up sought to avoid. In those cases the 

Supreme Court and the Board respectively started from the 

presumption that a successor employer may set its own terms 

and conditions of employment and reserved the “perfectly 

clear” exception for cases in which employees had been 

misled into believing their terms and conditions would 

continue unchanged. See Burns, 406 U.S. at 294-95; Spruce 

Up, 209 N.L.R.B. at 109. In this case, the Board presumed 

the predecessor’s terms and conditions must remain in effect 

unless the successor employer specifically announces it will 

change “core” terms and conditions. Thus does the exception 

 

must produce ‘more than a mere scintilla’ of evidence; it must 

present on the record ‘such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion,’ taking into 

consideration the ‘record in its entirety ... including the body of 

evidence opposed to the Board’s view’”) (internal citation omitted). 
15 

in Burns swallow the rule in Burns. Under the proper 

standard, S&F clearly comes within the protection of the rule 

rather than the straightjacket of the exception: It was never 

“perfectly clear that the new employer plan[ned] to retain all 

of the employees in the unit,” Burns, 406 U.S. at 294-95, let 

alone that it did so “with no notice that they would be 

expected to work under new and different terms,” Spruce Up, 

209 N.L.R.B. at 195 n.7. On the contrary, the Company 

announced it would retain only those who met certain preemployment tests and stated its intent to set new initial terms 

and conditions of employment. 

B. Announcing Terms and Conditions After the July 1 

Takeover 

 The Board held in the alternative that even if S&F had 

expressed a “sufficiently clear intent to change employment 

terms” and thus avoided being deemed a “perfectly clear” 

successor, S&F “still had an obligation to bargain over any 

unannounced specific changes to terms and conditions of 

employment occurring after July 1, including dismantling the 

bulletin board and issuing new handbooks.” 351 N.L.R.B. at 

982 n.31. In the Board’s view, that is, a successor employer 

may change preexisting terms and conditions of employment 

only to the extent it has specified those changes in advance of 

assuming control over the operation. 

 The Board’s novel rule in this case misapplied its own 

precedent and that of the Supreme Court. In Burns, the 

Supreme Court was perfectly clear that a successor employer 

is not bound by the substantive provisions of a CBA 

negotiated by its predecessor: “It is difficult to understand 

how [the successor employer] could be said to have changed

unilaterally any pre-existing term or condition of employment 

without bargaining when it had no previous relationship 
16 

whatsoever to the bargaining unit and, prior to July 1, no 

outstanding terms and conditions of employment from which 

a change could be inferred.” 406 U.S. at 294. True to this 

teaching, the Board in Spruce Up did not require the employer 

to announce in advance all (or indeed any) new terms it 

intended to establish upon taking over; it was sufficient that 

the employer had announced its intention to establish new 

terms. See 209 N.L.R.B. at 195. S&F, having put the 

employees on notice of that intention, was not bound by the 

Candlewood CBA but was free unilaterally to implement its 

own initial terms and conditions of employment. 

 In support of its view, the Board offers Banknote Corp. of 

Am., 315 N.L.R.B. 1041 (1994), enf’d 84 F.3d 637 (2d Cir. 

1996). In that case the Board correctly stated that an 

employer is free to set initial terms and conditions prior to 

hiring its predecessor’s employees. 315 N.L.R.B. at 1042. 

The wrinkle in that case was that, when interviewing for jobs 

with the new employer, “the employees were told [working 

conditions] would be about the same.” Id. at 1043. 

Subsequent changes were thus a deviation from the terms 

under which the employees were told they were being hired. 

Banknote therefore stands for the principle that once an 

employer has hired its predecessor’s employees under any 

specified terms and conditions of employment — its own or 

those in its predecessor’s CBA — it must bargain over 

subsequent changes. 

 In this case, the offer of temporary employment S&F 

made to former Candlewood employees, which they had to 

sign in order to accept employment with S&F, incorporated 

by reference the employee handbook; and the handbook 

expressly stated the initial terms and conditions of 

employment that S&F set when it hired the employees. To 

reiterate the relevant facts, the successor employer: (1) before 
17 

soliciting job applications, informed the predecessor’s 

employees of its intention to change the terms and conditions 

of employment; (2) upon hiring the predecessor’s employees, 

explained that the new terms and conditions were set out in 

detail in the employee handbook; and (3) shortly after 

assuming operations, gave each employee a copy of the 

handbook. These steps together constitute the process by 

which the employer set the initial terms and conditions; it did 

not accept its predecessor’s terms nor set its own initial terms, 

hire the employees upon those terms, and then unilaterally 

change them. Because the employer did not change any terms 

it previously established but merely replaced its predecessor’s 

terms with its own, it was not required first to bargain with 

the Union over the content of the employee handbook or its 

removal of the bulletin board during its initial renovation. 

III. Conclusion 

 For the reasons set out above, we hold S&F was not a 

“perfectly clear” successor under Burns, nor was it obligated 

to bargain over initial terms and conditions simply because 

those terms had not been specifically announced prior to July 

1, 2004. We therefore grant the petition for review and deny 

enforcement of the Board’s order insofar as it requires that 

S&F restore the terms and conditions of employment 

established by its predecessor and make its employees whole 

for losses caused by its failure to apply the terms and 

conditions of employment that existed prior to its 

commencing operations. We grant the Board’s crossapplication for enforcement with respect to those aspects S&F 

does not contest. 

So ordered.