dissenting:
I cannot join in the Court’s opinion in this matter for the following reasons. The administrative law judge found that Systems, “had it not been for its unlawful discrimination, would have been a successor employer, having assumed the same work as Pritchard and having hired those former employees who would have formed a majority of its regularly employed new crew, exclusive of temporary employees, at a time when a reasonably representative number had been employed after an initial start-up period.” This, of course, was a hypothetical holding based on a “but for” theory, as no Pritchard Local 29 employees were hired by Systems.
Unquestionably Systems had no duty to bargain with the representative of the previous work force unless it was the successor to Pritchard. As the Court recognizes, successorship will exist where there has been, despite the change in ownership, a continuity of both the work force and the enterprise itself without substantial change. Here the work force was entirely new so that ordinarily Systems would not be deemed a successor. Accordingly, the finding that the unlawful discrimination was the reason that the Pritchard work force did not continue under Systems was critical to the circumvention by the administrative law judge of the clearly established law regarding successor employers.
The administrative law judge concluded that Systems “would have offered employment to the Pritchard employees to fill urgently needed positions for experienced cleaning persons at 300 Sixth Avenue had it not been for its unlawfully discriminatory motivation of effectuating a pre-hiring recognition of Local 327 at the site ... by refusing to hire predecessor employees,” a finding which we may accept. But to find successorship he had to go further and he did so by holding that “[a]ny uncertainty as to whether any of these predecessor employees would have accepted employment offered under lawful conditions must be resolved against Respondent Systems.... ”
But why is this so? There is no doubt but that Systems upon taking over the cleaning contract was free to offer any lawful wage rate to prospective employees, including those previously employed by Pritchard, without regard for the prior Pritchard rate. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 40, 107 S.Ct. 2225, 2234, 96 L.Ed.2d 22 (1987). In fact, the hourly wage rate Systems offered was less than half of that paid by Pritchard and was for part-time rather than full-time work as had been the situation under Pritchard.1 Yet the administrative law judge did not explain why the Pritchard employees would have accepted jobs paying about one-fourth of what they previously *310earned. Common sense should cause us to recoil from his conclusion that they would have taken the Systems jobs if offered. In reality there was no “uncertainty” as to whether the Pritchard employees would have accepted Systems’ terms if they had the chance, as it is obvious that the Pritch-ard employees would not have accepted part-time employment at less then half of their previous fulltime rate.
On what basis then are the administrative law judge's conclusions upheld? The Court indicates that “it is now established that the discriminatory refusal to hire predecessor employees eliminates the obligation for a majority of the employees to be present in order for the new enterprise to be deemed a ‘successor.’ ” Thus, the Court concludes that if there is “discriminatory hiring” “the normal requirement that a majority of the former employees be employed in the successor enterprise does not attach.” Majority at 302. The difficulty with this statement is that it is only tangentially related to the problem at hand. The administrative law judge’s finding was not ultimately dependent on his conclusion regarding the issue of whether Systems would have offered to hire the Pritchard employees but for the discrimination. His critical finding was, in his words, that they would have “accepted employment” with Systems, a finding which the Court does not address in its discussion of successor-ship.
The Court then indicates that “[t]he new employer cannot argue that a majority of the employees of his predecessor have not been employed in the new work force when the failure to employ them is a result of discriminatory, and hence illegal hiring practices.” Majority at 303. I will accept this statement as true but it is of no use here as it simply restates the Court’s earlier conclusion. I emphasize that the problem here is that there is absolutely no reason to conclude that if Systems had not discriminated against the Pritchard employees, they would have taken Systems’ part-time jobs at less than half of their former full-time rate.
In some cases it is acceptable to infer or rebuttably presume that in the absence of discrimination, the prior employees would have continued on the job, so that if the other attributes of successorship are established, the new employer may be deemed a successor. Certainly this result might be reached on the basis of actual evidence. See, e.g., American Press, Inc. v. NLRB, 833 F.2d 621 (6th Cir.1987); Kallmann v. NLRB, 640 F.2d 1094 (9th Cir.1981). But this case is a long way from a situation in which the court may reasonably say, as did the court in NLRB v. Foodway of El Paso, 496 F.2d 117, 120 (5th Cir.1974), that “[i]t is manifest that but for [the successor employer’s] discriminatory refusal to offer employment to [the prior employer’s] employees, the Union would have continued to enjoy a majority representative status.” In fact, the only way that the result in this case can be justified is by holding that if there is unlawful discrimination against the prior employees in the offering of employment, it will be irrebuttably presumed, no matter how outlandish the result, that the employees would have accepted the offer of employment if made from the new employer regardless of its terms.2
*311This is an extraordinary rule of law which predicates liability, and ultimately a remedy, where the action of the parties, even absent the wrongdoing, would have been exactly the same. This situation is analogous to that in Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), in which the Supreme Court considered a case in which there was a district court finding, affirmed by the Court of Appeals, that a school board in not renewing a teacher’s contract violated his First and Fourteenth Amendment rights. Notwithstanding the constitutional violation, the Court remanded the matter “to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent’s reemployment even in the absence of the protected conduct” and had accordingly established a defense. Id. at 287, 97 S.Ct. at 576. Thus, the Court held that the employer may avoid liability in a First Amendment case which, after all, involves a core value of our society, by establishing that regardless of its wrongdoing it would have dismissed the employee.
In view of that conclusion, is it too much to require a sliver of reason to believe in a statutory labor case that the employees would have accepted jobs if offered by the employer before the consequences involved in this case are visited on the employer because of its failure to offer the jobs? The fact is that the actual holding of this case has created a remedy for the Pritch-ard employees where, without a doubt, the wrongdoing as to them caused them no loss. Thus, as it is the policy of the National Labor Relations Act to avoid punitive sanctions and to supply remedies rather than punishments, the Court in my view has not reached the correct result. See Republic Steel Corp. v. NLRB, 311 U.S. 7, 10-11, 61 S.Ct. 77, 79, 85 L.Ed. 6 (1940); Deboles v. Trans World Airlines, Inc., 552 F.2d 1005, 1019 (3d Cir.), cert. denied, 434 U.S. 837, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). In the circumstances, I am constrained to dissent.
. The old rate was close to $8.00 per hour, full time, and the new rate was $3.75, part time. The part-time work was around four or five hours per shift.
. I realize that in the context of discussing whether back pay should be awarded the Pritch-ard employees, which is a different matter than whether Systems is a successor, the Court does indicate that Systems "had to prove that no Local 29 employees would have accepted employment had employment been offered” and "failed to do [so].” Majority at 306. In an accompanying footnote, the Court indicates that Systems failed to meet its burden because it did not "adduce evidence of the intentions of the specific workers involved — none of whom testified that they would refuse employment by Systems." As it happens, this statement is wrong, as one Pritchard employee did testify that he would not accept the Systems position at $3.75 per hour. While the Court indicates in footnote 9, referring to the employee’s later testimony, that he indicated that he would have to think about the $3.75 if Local 29 represented him, that evidence is of no help in sustaining the Board because the $3.75 had to be accepted by the old employees before Local 29 was back in the picture, as when the $3.75 was offered they could not possibly know whether Systems would become a successor to Pritchard. Thus the Court has placed the cart before the horse. Therefore, the only actual evidence in the case regarding what the employees would do refutes the holding of the Board. Accordingly, my *311common sense is consistent with the record. In any event, I cannot believe that anyone would think that after the fact testimony by employees that they would have taken jobs paying about one-fourth of their previous wages if they had been offered, could possibly be regarded as reliable, since at the time of their testimony the employees would be aware that they would not have to take the reduced-pay part-time position, but instead may receive back pay at a full-time rate for a period in which they did not work. Clearly, the only possible inference that can be drawn from the actual facts here is that the Pritchard employees would not have accepted Systems’ terms if offered.