dissenting:
The Board’s decision in this case makes no sense. Prompt’s 23 employees had been doing a lousy job cleaning Cadman Plaza and Laro knew it, not only from GSA’s report but also from observing two of Prompt’s employees sleeping on the job. When Laro took over, it decided to streamline operations, thinking it could do a better job with 5 fewer workers. Yet according to the Board, Laro had a legal obligation to fill its 18 slots with the former Prompt employees. Why? Because, according to the Board, the only reason Laro did not hire all its employees from the Prompt pool was Laro’s anti-Local 32B animus. There is no substantial evidence, indeed there is no evidence whatever, to support the Board’s conclusion — a conclusion *233that entails the utterly ridiculous proposition that but for the Prompt employees’ membership in Local 32B, Laro would have hired them.
Too bad for Laro that it did not stick to its initial plan of not hiring any of Prompt’s 23 employees. Had Laro done so in light of what it learned from GSA, no unfair labor practice charge could possibly have stuck. The labor laws do not require new employers to keep any of their predecessor’s workers on board, so long as the new employer does not refuse to hire them “solely” because they belong to a union. Howard, Johnson Co. v. Hotel & Restaurant Employees Int’l Union, 417 U.S. 249, 262 n. 8, 94 S.Ct. 2236, 2243 n. 8, 41 L.Ed.2d 46 (1974); NLRB v. Burns Int’l Sec. Servs., 406 U.S. 272, 280 n. 5, 92 S.Ct. 1571, 1579 n. 5, 32 L.Ed.2d 61 (1972). But at GSA’s urging, Laro caved in and retained 10 Prompt employees, designated by GSA as the best of the bunch. The remaining 13 Prompt employees were thus necessarily the worst of the lot, or at least Laro was entitled to so believe. Laro harbored no anti-union animus in filling 10 of its 18 positions — a majority — with Prompt workers, all of whom were members of Local 32B. How then can it be that Laro violated § 8(a)(3), 29 U.S.C. § 158(a)(3), by not hiring more? (Actually, Laro did hire one more former Prompt employee and set him to work at another site. When he quit two days later, complaining that he had been “overworked,” he fell back into the pool of the unhired 13.)
The ALJ’s answer to this question, adopted by the Board, is irrational: Laro “did not want to hire any more of Prompt’s incumbent employees than it believed it was required to by GSA, in an effort to avoid a bargaining obligation with Local 32B.” Laro Maintenance Corp., 312 N.L.R.B. 155, 162 (1993). It is tempting to place a couple of exclamation points and a few question marks at the end of the ALJ’s statement, a statement upon which the entire case turns. Why in the world would Laro think it could “avoid a bargaining obligation” by not hiring more Prompt employees? A “bargaining obligation” arises from a union’s majority status. See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 46-47, 107 S.Ct. 2225, 2237-38, 96 L.Ed.2d 22 (1987); Burns Int’l Sec. Servs., 406 U.S. at 277-81, 92 S.Ct. at 1577-79; Elastic Stop Nut Div. of Harvard Indus, v. NLRB, 921 F.2d 1275, 1282 (D.C.Cir.1990). Local 32B was already over the top at Cadman Plaza. Ten of 18 is a majority. A bigger majority is still a majority. Are we supposed to believe that Laro could not do simple arithmetic?
The truth is that Laro’s refusal to recognize Local 32B was not on the basis that the union lacked a majority at Cadman Plaza. Laro refused to bargain with Local 32B because Laro considered — incorrectly it turned out — the Cadman Plaza operation an accretion to the bargaining unit in Jamaica, Queens, where Laro cleaned another federal office budding pursuant to a GSA contract. A different union, Local 355, represented Laro’s Jamaica employees. The number of employees represented by Local 355 exceeded 18. Hence, no matter how many more former Prompt employees Laro hired at Cadman Plaza, the unit as Laro viewed it would still have had a majority of Local 355 members.
The fact that Laro hired a majority of its Cadman Plaza work force from the pool of Prompt employees gives the lie to the ALJ’s — and the Board’s — notion that Laro’s alleged intent to avoid bargaining with Local 32B was a “motivating factor” behind the company’s hiring decisions. Had Laro been thinking the thoughts the ALJ placed in its head it would have pared down GSA’s list to 8 or less.
The rest of the ALJ’s reasoning is makeweight, and just as nonsensical. Two examples should suffice. Consider first what the ALJ deduced from Laro’s take-over of two other cleaning operations. When the company succeeded to the cleaning contract at the federal facility in Jamaica, Laro hired one-third of the incumbent employees, who were not then unionized. Upon taking over operations at Dowling College, Laro initially decided not to hire any incumbent employees, but wound up hiring all of them at the college’s insistence; the incumbent employees were unionized. According to the ALJ, what happened at Jamaica and Dowling College shows *234that Laro did not really “like[ ] to ‘start fresh’ with a new complement of employees” unless a union represented the incumbent workers. Laro Maintenance Corp., 312 N.L.R.B. at 160-61. Nonsense again. There is no evidence whatever that Laro’s initial desire at Dowling stemmed from anti-union sentiments. If Laro is so anti-union, how can one account for the fact that the Jamaica employees became organized without Laro’s committing any unfair labor practices? All we know, all the Board and the ALJ knew, is that on one occasion Laro hired some incumbents and on another occasion it did not want to, but did. About the only thing to be gleaned from this bit of history is a common fact of business life having nothing to do with anti-union animus: sometimes there are good workers in the group of incumbents; sometimes there are not; and sometimes it is not worth trying to sort out the good from the bad.
Consider last the ALJ’s “reasoning” that because Laro hired some unexperienced workers, anti-union bias must have moved it not to hire any of the 13 experienced Prompt employees. Laro Maintenance Corp., 312 N.L.R.B. at 162-63. This too crosses the boggle threshold. In the ALJ’s mind, experience must equal competence. Nonsense again. If you were in the cleaning business would you prefer an experienced Prompt employee, experienced that is in sleeping on the job, over a fresh face willing to work and eager to learn how to run a vacuum cleaner and empty a trash can?
My colleagues deeply bow in deference to the Board when they should be furrowing their brows at what the Board offered. More can be said, but this is enough to indicate why I respectfully dissent.