Ingersoll-Rand Co.

National Labor Relations Board - Board Decisions

Jul 23, 1975

219 N.L.R.B. 435 (N.L.R.B. 1975)

CALIFORNIA PELLET MILL COMPANY
California Pellet Mill Company, a subsidiary of In-
gersoll-Rand Company and International Associa-
tion of Machinists and Aerospace Workers, AFL-
CIO, District Lodge No. 115, Local Lodge No. 68.
Case 20-CA-9432
July 23, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 7, 1975, Administrative Law Judge
Henry S . Salim issued the attached Decision in this
proceeding. Thereafter , the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision and an answering brief.
Pursuant to the .provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record' and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings , findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
Respondent manufactures feed mill machinery. In
late June 1974,2 the International Association of Ma-
chinists and Aerospace Workers , AFL-CIO , District
Lodge No. 115, Local Lodge No. 68, hereinafter the
Union, began an organizing campaign among the of-
fice and technical employees at Respondent's San
Francisco facility . The Union has represented
Respondent 's production and maintenance employ-
ees at San Francisco for over 30 years . On August 2,
the Union filed unfair labor practice charges against
Respondent , and on September 27, complaint issued.
After obtaining authorization cards from 32 of 49
office and technical employees , the Union, on Au-
gust 12, requested recognition . On August 15, Re-
spondent refused recognition and, on August 19, the
Union filed a petition for an election . On December
16, after the hearing in this case , the representation
petition was dismissed by the Regional Director.
The complaint alleged that Respondent committed
numerous violations of Section 8(a)(1) and (3) of the
Act. The General Counsel further alleged that the
Union represented a majority of employees in the
appropriate unit on all material dates and requested
that a bargaining order issue as part of the remedy.
'inasmuch as the record and briefs adequately present the issues and
positions of the parties , Respondent 's request for oral argument is hereby
denied.
2 Unless otherwise noted, all dates hereinafter are in 1974.
435
While we reach many of the same ultimate conclu-
sions as the Administrative Law Judge, we feel com-
pelled to explain our reasons and rationale for reach-
ing those conclusions, because the Decision of the
Administrative Law Judge is in many respects inade-
quate and inaccurate. Accordingly, we have set out
below our findings and conclusions in this case.
The complaint alleged that on or about July 18
Respondent instituted wage increases in order to dis-
courage employees from supporting the Union. The
evidence indicated that employees received a 6-per-
cent raise in their paychecks on or about July 18.
Respondent has weekly pay periods, and the checks
included amounts that made the raise retroactive to
July 1. Respondent admittedly learned of the
Union's organizing efforts on July 12. In the past,
Respondent had regularly instituted raises annually
at Christmastime.
The Administrative Law Judge misstates the law
by implying that General Counsel, to establish a vio-
lation of Section 8(a)(1), must show that
Respondent's promises or implementation of benefits
were conditioned upon the employees' rejection of
the Union. It is well-settled law that the unlawfulness
of wage increases or other benefits may stem from
their timing and impact. As the Supreme Court stat-
ed in N.L.R.B. v. Exchange Parts Co., 375 U.S. 405
(1964);
The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the vel-
vet glove. Employees are not likely to miss the
inference that the source of benefits now confer-
red is also the source from which future benefits
must flow and which may dry up if it is not
obliged.
However, having examined all factors surrounding
Respondent's wage increase and considering our-
selves bound by the Administrative Law Judge's
credibility findings, we are unable to conclude that
Respondent's wage increase violated Section 8(a)(1).
Though the timing of the wage increases makes them
clearly suspect, Respondent presented evidence,
credited by the Administrative Law Judge, indicating
that Respondent began discussing the increases 4 to
6 weeks prior to the appearance of the Union and
that Respondent made a final decision on June 26 to
implement the increases. Respondent contends that
the wage increases were instituted to compensate em-
ployees for a lack of increases during the period of
Federal wage and price controls. We note that the
wage increases were implemented nationally and in-
cluded all office and technical employees at all of
Respondent's facilities in the United States. Under
these circumstances, we can infer no unlawful motive
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Respondent 's instituting its wage increases, and
we shall dismiss this allegation of the complaint.
The complaint alleged that on or about July 22
Respondent instituted a program under which em-
ployees could discuss their problems directly with a
representative of Respondent in order to discourage
their support for the Union as their collective-bar-
gaining representative . Again , the Administrative
Law Judge apparently decided this issue by applying
a test of whether or not General Counsel proved that
Respondent 's implementing of a benefit was condi-
tioned upon employees ' rejecting the Union . Further,
the Administrative Law Judge states that General
Counsel did not prove that Respondent 's purpose
was to discourage union activity and summarily con-
cludes that Respondent was acting pursuant to legiti-
mate business purposes . Again , however , adequate
discussion is lacking as to what inference should be
drawn from the timing and impact of Respondent's
implementing a program for employees to discuss
grievances with management , shortly after learning
of the Union's organizing efforts.
In examining this matter , we are bound by the Ad-
ministrative Law Judge 's factual finding that Re-
spondent had long had a policy whereby employees
could discuss problems with a management person
with more authority than their immediate supervisor.
On July 22 , Respondent posted a notice indicating
that Lou Ghilardi , Respondent's personnel director,
was available by appointment to discuss problems
with employees . The Administrative Law Judge ap-
parently credited testimony indicating that Robert
Treseler, who was Respondent 's treasurer and had
previously taken time to discuss problems with em-
ployees, had requested of Respondent that someone
other than he be available for employee problems
because he was too occupied with other matters.
Therefore , according to Respondent 's evidence ac-
cepted by the Administrative Law Judge , Ghilardi
was appointed to take Treseler's place as a manage-
ment official available to discuss employee problems.
Under these circumstances , we must conclude that
Respondent effectively rebutted any inference of ille-
gality we might draw from the timing and impact of
the appointment of Ghilardi to be available for em-
ployee problems . On this record , we cannot find that
the substitution of Ghilardi for Treseler conferred
any benefit on employees, and we shall dismiss this
allegation of the complaint.
The complaint alleged that on or about July 24
Respondent , through its supervisor, Yavorsky,
threatened employees that restrictions might be
placed on their working conditions if they selected
the Union . In order to decide this issue , it was the
function and duty of the Administrative Law Judge
to decide between the conflicting testimony of two
witnesses . The Administrative Law Judge' s comment
that General Counsel presented "not a modicum of
evidence" is an unwarranted and inaccurate charac-
terization of the evidence . Apparently, in deciding
this issue , the Administrative Law Judge credited the
testimony of Supervisor Wright over that of employ-
ee Robinson . In effect , Wright testified that Yavor-
sky discussed various possibilities that might occur
after unionization , while Robinson testified that Ya-
vorsky stated that certain changes would definitely
occur . We are not convinced that the Administrative
Law Judge's credibility resolution was clearly errone-
ous, and we shall accordingly affirm his dismissal of
this allegation of the complaint . Nonetheless, based
on our reading of the record and the testimony of the
two witnesses , we deem the Administrative Law
Judge's characterization of General Counsel's evi-
dence unjustified . Such comment does not promote
in each party a confidence that its evidence will be
properly weighed and evaluated prior to resolution of
the issues.
The complaint alleged that on or about July 24
Respondent 's supervisor , Yavorsky, told employees
that Bruce Windhorst had been discharged for en-
gaging in union activities . From the record, it is un-
disputed that Yavorsky made the remark attributed
to him . Yavorsky was addressing employees in the
data processing department and stated that he did
not believe that Bruce Windhorst was let go for other
than his union activities . Despite a recitation of the
testimony about Yavorsky' s remark, the Administra-
tive Law Judge failed to rule specifically on this alle-
gation. Based on the Administrative Law Judge's dis-
missal of all the 8(a)(1) allegations and his
discrediting of Robinson 's testimony to the extent it
conflicted with his findings of fact, we must presume
that the Administrative Law Judge credited the testi-
mony of Supervisor Wright that Yavorsky's remark
was made in obvious jest . Although we are troubled
by the Administrative Law Judge' s failure to provide
a ruling and supporting rationale on this allegation,
we conclude that the remark was made in jest and
dismiss this allegation of the complaint.
The complaint alleged that on or about September
16 Respondent told employees that recommenda-
tions for improved benefits were being made to its
parent corporation in order to discourage support for
the Union. The complaint further alleged that on or
about September 16 Respondent instituted an em-
ployee grievance committee in order to discourage
employees from supporting the Union. The Adminis-
trative Law Judge, without adequate discussion of
these allegations , summarily concludes that Respon-
dent took these actions for legitimate business pur-
CALIFORNIA PELLET MILL COMPANY 437
poses and recommends dismissal of these allegations.
For the reasons set out below, we reverse and find
that Respondent's actions constituted clear viola-
tions of Section 8(a)(1).
On July 19, Ingersoll-Rand, which at that time was
discussing a merger with Respondent, conducted an
employee attitude survey at Respondent's San Fran-
cisco facility. The July 19 survey was not alleged in
the complaint to have been unlawful. The survey ap-
parently attempted to gauge for Ingersoll-Rand the
attitudes of Respondent's employees about their pay,
benefits, overtime, working conditions, etc. However,
employees were not told of the purpose of the survey
and were not informed that it might lead to any cor-
rective action. On August 15, Respondent's presi-
dent, Soper, posted a notice informing employees
that the results of the survey had been tabulated and
that Respondent would report them to employees.
On September 16, Soper met with employees and
discussed Respondent's reaction to the survey. Soper
read from a prepared script which is part of the re-
cord. Contrary to Respondent's contentions, we find
that during the course of the speech Soper promised
to recommend and implement benefits to employees
and further that Respondent demonstrated no legiti-
mate business reason for doing so. Based on our in-
terpretation of Soper's speech, read in connection
with the visual presentation made to employees at
the time of the speech, we conclude that Respondent
violated Section 8(a)(1).
As argued by Respondent to support its case, Sop-
er, at certain points in his speech, did state that he
was under legal restrictions because of the Union's
organizing campaign. Soper's speech reads, in part,
as follows:
I want to point out that I am reading my com-
ments today because I want there to be no ques-
tion later as to what I said here today. The union
has filed a petition for an election with the Na-
tional Labor Relations Board and thus I am un-
der rather severe legal restrictions as to what I
can say or do until after this matter has been
resolved.
package includes since that might be interpreted
as inferring a promise of future improvements, if
you vote down the union.
However, Soper's disclaimer of any intention to
change benefits prior to the resolution of the union
matter is contradicted at numerous other points in
his speech.
In regard to pay, Harold Crickenberger made a
visual presentation on September 16 that included
his recommendations for employees at Respondent's
facility? Following Crickenberger's presentation re-
garding pay, Soper stated, inter alia, to employees:
We agree in general with Crick's recommen-
dation. We have recently obtained salary survey
information on other San Francisco companies
and our surveys do reflect both cost-of-living
and union wage increases.
You will be interested to hear that Mr. Sid
Templeton of Ingersoll-Rand's corporate per-
sonnel staff will be here for several days next
week to assist in analyzing the salary surveys
and to begin making preparations for implemen-
tation of the Hay Salary System at CPM. The
Hay` System is a nationally recognized system of
job evaluation in which each salaried position is
rated on a point system and a salary range is set
for each job with a minimum and maximum
rate.
We will review the pay of salaried employees
twice each year as Crick suggests. And we will
make adjustments based on results of our salary
surveys, job performance, and the employees'
contribution to the success of our business.
Soper clearly promised employees a new and more
beneficial pay system. His promise to "make adjust-
ments" can only be read as a promise to make im-
provements in the pay of the employees. With regard
to other benefits, after stating that no changes could
be made because of the union matter, Soper stated,
in part, as follows:
Crick's recommendation on substituting the
Ingersoll-Rand pension plan for the CPM may
„ be a good one, and I am pleased to report that
Ingersoll-Rand has asked a consulting firm spe-
With regards to Crick's [Harold Crickenber-
ger, a consultant for Ingersoll-Rand] recommen-
dation regarding making available the full pack-
age of Ingersoll-Rand benefits, there is
absolutely nothing that we can do about it at
this time. Once a union has petitioned for an
election, management can make no general
changes in pay, benefits, working conditions, or
other matters under the law. We are not even
free to describe what the Ingersoll-Rand benefit
I The visual chart to which Crickenberger referred while discussing pay
with employees read , in part , as follows:
Pay. . . . Recommendations
Salary surveys of other companies in the area should be conducted
twice a year.
Factor increases in the Cost-of-Living and major wage settlements
by labor unions into the salary surveys.
Review the pay of individual salaried employees twice a year and
grant ment increases based on salary trends, j ob performance, and
contribution to the business
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cializing in pension plans to study both plans
and make a recommendation as to which plan is
of greatest value to CPM people.
That statement obviously promised employees that
Respondent would implement or recommend imple-
menting another pension plan if it would prove more
beneficial to employees.
As to working conditions , Soper announced he
was appointing an employee "task force" to look into
problems with physical working conditions at
Respondent's facility and report back to him. He
promised that thereafter he would inform employees
of "our plans for corrective action." Thereby, Soper
promised employees that he would improve the phys-
ical working conditions, a clear benefit to employees.
As to promotions, Soper informed employees:
On promoting from within, I don't mean to
infer that every salaried job will be filled by an
internal candidate . But let me assure you that
we will look seriously at all internal candidates
before we go outside to fill salaried jobs here at
CPM.
Once again, Soper promised a benefit to employees
by assuring them that Respondent would consider
them for promotion prior to any outside hiring.
At other points in his speech, Soper promised em-
ployees that management would begin holding regu-
lar meetings to better communications with employ-
ees. He also agreed with a recommendation that a
formal appraisal system should be established and
that each employee should be appraised at least once
a year. In regard to job security, Soper agreed to
implement an appeal procedure under which em-
ployees could appeal actions adverse to their inter-
ests . Soper stated , "As far as I am concerned, that
procedure is now in effect and you should feel free to
use it while we are drawing up the details or inclusion
in the salaried employee handbook." In summing up
his response to the employee attitude survey, Soper
stated, inter alia:
I want to thank Mr. Crickenberger for his efforts
in analyzing the survey and presenting his con-
clusions and recommendations . We are already
doing some of the things he has recommended
and we are certainly making plans to do some of
the other things that have been identified for the
first time here today.
We find Soper's speech of September 16 to be re-
plete with explicit and implicit promises to recom-
mend and implement numerous benefits for employ-
ees. Coming during the Union's organizational
campaign and subsequent to the Union's filing of a
petition, the timing of the speech could hardly be
more suspect. Further, by promising to employees
the very benefits the lack of which had encouraged
them to seek unionization , Respondent engaged in
conduct clearly calculated to undermine support for
the Union . Accordingly, we must infer from these
circumstances that Respondent promised such bene-
fits in order to discourage support for the Union.
Respondent defends its action on the basis that it
was acting pursuant to legitimate business reasons.
On the record before us, we find no such legitimate
reasons for Respondent 's promising to recommend
and implement improved benefits to employees. It
was one matter for Ingersoll-Rand on July 19, prior
to its consummating its merger with Respondent and
without telling employees of the survey's purpose, to
conduct a survey of employee attitudes about their
employment. When the survey was made, no men-
tion of corrective action was made to employees and
no evidence indicated that the attitude survey was
intended to be used as a basis for improving benefits.
Therefore, we find it a totally different and unlawful
matter for Respondent, in September and during the
Union's organizational drive, to promise benefits to
alleviate employee complaints as expressed in the
survey. Under these circumstances Ingersoll-Rand's
employee attitude survey cannot be deemed a busi-
ness justification for Respondent 's promising to rec-
ommend and implement improved benefits. Having
found no legitimate business reasons necessitating
President Soper's announcement of new benefits, we
conclude that Soper's speech of September 16 violat-
ed Section 8(a)(1) of the Act.
Following his speech of September 16, Soper im-
plemented one promise by appointing three employ-
ees to a "task force" that would report on problems
with physical working conditions at Respondent's fa-
cility. Soper promised to take corrective action pur-
suant to the task force's report. Respondent appar-
ently contends that this action was fully lawful
because the task force's authority concerned only
problems with physical conditions and because the
task force was thus not a "grievance committee." We
disagree. This action, taken pursuant to the promise
to improve physical conditions, clearly involved the
employees' terms and conditions of employment.
Matters ranging from improving air conditioning to
fixing office furniture are issues about which a union
might seek to bargain. The creation of this task force
along with a promise to take corrective action based
on its report would thus serve to undermine support
of the Union. Also, contrary to Respondent, we find
no basis for concluding that the appointment of a
task force was merely a continuation of the July em-
ployee attitude survey. As stated above, the Inger-
soll-Rand survey, taken without informing employ-
CALIFORNIA PELLET MILL COMPANY
ees of its purpose, could not justify Respondent's
promise of benefits in September. We find that crea-
tion of a task force to investigate physical conditions
along with a promise of corrective action served to
discourage support for the Union and was therefore
violative of Section 8(a)(1).4
The General Counsel alleged that employee Bruce
Windhorst was discharged in violation of Section
8(a)(3) of the Act.
Windhorst was employed by Respondent for 13
months as a cost accounting clerk and was dis-
charged (Respondent contends "laid off") on July
18. On July 12, Respondent first learned of the union
activity at its facility when an employee informed
Treseler, Respondent 's treasurer , that Bruce Wind-
horst had asked her to sign a union authorization
card. It is not disputed that Windhorst was the first
employee whose union activity came to
management's attention. Windhorst was discharged
(or "laid off") about a week after Respondent be-
came aware of his activities.
Respondent contends that a decision was made in
February to lay off the least senior employee in the
cost accounting department as soon as Respondent
completed its computerization of the department.
Respondent's evidence indicated that the computer
process, after some trial runs, was put into effect on
July 17 and that thereafter Windhorst, the least se-
nior employee, was laid off.
The Administrative Law Judge stated in his Deci-
sion that "Windhorst's organizational activities were
such that he could not be characterized as a no-
ticeably prominent union proponent." That state-
ment is both unwarranted and of little relevance to
the resolution of this issue. More significance must
be attached to Windhorst's being the first union pro-
ponent whose activities became known to Respon-
dent.
However, having evaluated the record and again
considering ourselves bound by the Administrative
Law Judge's credibility findings,' we are compelled
Member Kennedy does not agree that Respondent 's appointment of a
"task force" on September 16 violated Sec. 8(a)(I). In his view , the task
force was created for the sole purpose of reporting on physical conditions
which had been the subject of employee complaints during a lawful survey
started in July prior to the Union's organizing campaign . Member Kennedy
believes that Respondent is not precluded by the filing of an election peti-
tion from concluding its investigation of employee reports of inadequate
working conditions in the plant.
3 In that portion of his Decision where he discussed the alleged 8(aX3)
violation, the Administrative Law Judge failed to mention or evaluate Su-
pervisor Yavorsky' s remark to the effect that Windhorst was let go for union
activities. In that portion of his Decision where he discussed the alleged
8(a)(1) violations, the Administrative Law Judge did mention Yavorsky's
remark but neglected to evaluate or rule on it . As stated heretofore, we can
only presume from his dismissal of all the 8 (a)(I) allegations that the Ad-
ministrative Law Judge credited Supervisor Wright's statement that
Yavorsky's remark was made in jest . Certainly , a discussion of Yavorsky's
remark is relevant to a resolution of the 8(a)(3) issue However, considering
439
to dismiss the allegation of the complaint regarding
Windhorst's discharge (or layoff). The Administra-
tive Law Judge credited testimony presented by Re-
spondent indicating that Respondent in February de-
cided to discharge or layoff the least senior employee
in the cost accounting department upon the
department's being computerized. Under these cir-
cumstances, we are unable to conclude that Wind-
horst was discharged or laid off in violation of Sec-
tion 8(a)(3) of the Act.
THE REMEDY
We have found, contrary to the Administrative
Law Judge, that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the
Act. It is necessary, in order to effectuate the purpos-
es of the Act, that Respondent be ordered to cease
and desist from engaging in such unlawful activity.
General Counsel requests an order that Respon-
dent be required to recognize the Union and to bar-
gain collectively with it. It is not disputed that the
Union represented a majority of the employees in an
appropriate unit of office and technical employees
on all material dates. Such a remedy was approved
by the Supreme- Court in N. L. R. B. v. Gissel Packing
Co., Inc., 395 U.S. 575 (1969). In cases such as this
one, it is difficult for the Board to decide whether a
bargaining-order should issue. On one hand, we have
found that Respondent has engaged in serious unfair
labor practices. On the other hand, not all violations
of Section 8(a)(1) are sufficiently egregious to war-
rant a bargaining order. Having carefully considered
all the circumstances of this case and noting that we
have dismissed a majority of the allegations of the
complaint, we shall not issue a bargaining order as
part of the remedy. In doing so, we neither condone
Respondent's unlawful activity nor discount the seri-
ousness of such unlawful activity. However, we are
not convinced that Respondent's unlawful actions,
which consisted primarily of statements made by Re-
spondent Soper in one speech on September 16, are
sufficiently pervasive to prevent the holding of a free
and fair election. Accordingly, we shall deny General
Counsel's request that we order Respondent to rec-
ognize and bargain with the Union.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and
the Union is a labor organization, all within the
meaning of the Act.
ourselves bound by what we presume to be the Administrative Law Judge's
credibility findings , we have , in reaching our conclusion as to Windhorst's
discharge, evaluated Yavorsky's remark as one made in jest.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By promising to employees on September 16, IT IS FURTHER ORDERED that those portions of the
1974, to recommend and implement improved bene- complaint found to be without merit are hereby dis-
fits in order to discourage support for the Union, missed.
Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
3. By appointing an employee task force to report
on problems with physical conditions at
Respondent's facility and by promising to take cor-
rective action based on the task force's findings in
order to discourage support for the Union, Respon-
dent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
5. Except as found above, Respondent has not en-
gaged in unfair labor practices.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that Respondent, Cali-
fornia Pellet Mill Company, a subsidiary of Inger-
soll-Rand Company, San Francisco, California, its
officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Unlawfully promising to recommend and im-
plement improved benefits to employees in order to
discourage their support for the Union.
(b) Appointing an employee task force to report
on problems with physical conditions at
Respondent's facility and promising to take correc-
tive action based on the task force's findings in order
to discourage support for the Union.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action:
(a) Post at its San Francisco facility copies of the
attached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director
for Region 20, after being duly signed by
Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter , in conspicuous places , including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, in order to discourage your sup-
port for International Association of Machinists
and Aerospace Workers, AFL-CIO, District
Lodge No. 115, Local Lodge No. 68, promise to
recommend and implement improved benefits.
WE WILL NOT, in order to discourage your sup-
port for the Union, appoint an employee task
force to report on problems with physical condi-
tions at our facility and promise to take correc-
tive action based on the task force's findings.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Sec-
tion 7 of the National Labor Relations Act.
You are free to become or remain members of In-
ternational Association of Machinists and Aerospace
Workers, AFL-CIO, District Lodge No. 115, Local
Lodge No. 68, or any other labor organization.
CALIFORNIA PELLET MILL COMPANY, A
SUBSIDIARY OF INGERSOLL-RAND COMPANY
DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Administrative Law Judge: This pro-
ceeding heard at San Francisco , California , on November
11, 12, and 13, 1974,1 pursuant to a charge filed on August
2, 1974, and a complaint issued on September 27, presents
questions whether Respondent , called the Company, laid
off and/or discharged employee Bruce Windhorst on July
18, in violation of Section 8(a)(3) because he engaged in
activities on behalf of the Charging Party, herein called the
Union, or because he was the least senior employee in a
reduction in force . Also, whether Respondent Company
engaged in other acts of interference, restraint , and coer-
cion in violation of employee rights under Section 8(a)(1)
1 All dates refer to 1974 unless otherwise indicated.
CALIFORNIA PELLET MILL COMPANY
of the National Labor Relations Act, as amended, herein
called the Act , by allegedly instituting a wage increase,
adopting a program whereby employees could discuss their
problems directly with Respondent Company, and recom-
mending to its parent company certain additional benefits
for its office employees . Also alleged is a refusal to recog-
nize and bargain with said Union in violation of Section
8(a)(1) of the Act because Respondent 's alleged violations
prevented the holding of a fair election.
Upon the entire record, including observation of the de-
meanor of the witnesses in testifying, the recital of the facts
hereinafter found, and after due consideration of the briefs
filed by the parties on December 19, there are hereby made
the following credibility and factual findings.2
1. THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
The Respondent Company, a California corporation,
was acquired by Ingersoll-Rand Corporation on August 8,
1974. It is engaged in San Francisco in the manufacturing
of feed mill machinery. Respondent during the past calen-
dar year purchased and received goods and materials in
excess of $50,000 directly from suppliers located outside
California and also received gross revenues in excess of
$500,000. It is undisputed that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
11. INTRODUCTION
This proceeding arose in the context of a union organi-
zational campaign commencing about June 25, when
Bruce Windhorst, the alleged discriminatee, contacted offi-
cials of the Union with a view to Respondent's office em-
ployees being represented by said Union. It is uncontro-
verted that the first time Respondent knew of union
activities was on July 12, when Treseler, a company offi-
cial, learned of this from an office employee . (See last par.
sec. IV, A.) On July 19, the Company conducted an "atti-
tude survey" to ascertain what complaints the office em-
ployees had with respect to their working conditions and
were told by company officials that the results of the sur-
vey would be tabulated. The results of the survey were
presented to them on September 16. See Respondent's Ex-
hibit 3. The unfair labor practices are alleged to have oc-
curred during the time the Union was soliciting the
Respondent's 49 office employees to sign authorization
cards. Respondent's production and maintenance employ-
ees in its San Francisco plant have been represented by the
Charging Party Union for over 30 years. It is uncontrovert-
ed that the relationship between the Company and the
Charging Party Union has been excellent. The Union now
seeks to represent the approximately 49 office employees at
the San Francisco plant.
2 Cf. Permaneer Corporation , 214 NLRB No.47, In. 3 (1974), Bishop and
Malco, Inc., d/b/a Walkers, 159 NLRB 1159, 1161 (1966 ), and Arrow Gas
Corporation , 124 NLRB 766 , 771 (1959).
441
When 32 of the 49 office employees had signed authori-
zation cards as of July 30, in the following appropriate
unit, namely, "All technical and office personnel including
office clerical employees," the Union requested recognition
on August 12.3 The Company on August 15 and since then
has refused to recognize and bargain with the Union
whereupon the latter filed a petition for an election on Au-
gust 19 (Case 20-RC-12283). A hearing was held on Sep-
tember 10, pursuant to said representation petition, with
respect to whether two employees were to be included
within the appropriate unit. On December 16, the represen-
tation case was dismissed by the Regional Director.
III THE ALLEGED 8(aXI) VIOLATIONS
Sylvia Robinson, the most active employee union propo-
nent,' commenced working for Respondent Company on
November 19, 1973, and presently works in the data pro-
cessing department. In the past year, she received three pay
increases , the last on July 24, effective July 1. John Yavor-
sky, supervisor, data processing department, spoke on July
24 to all the employees in that department on company
premises . According to Robinson, Yavorsky told the em-
ployees that "he wanted to bring to light some of the things
that we wouldn't have if we had a union representing us
that we had at that time, the things that we have as we are
working now. . . . He said that we would have to have a
timeclock, we'd have to punch a timeclock, we would have
to take our vacations at a certain set time of the year. And
we wouldn 't be able to have the personal type of relation-
ship that we have with our supervisors, for instance being
able to have our working hours arranged at certain times
.... [Yavorsky] said he'd kill any of us if we told it, but
he said that he couldn't see any reason [Windhorst, alleged
discriminatee], was fired except for union activities. And if
it weren't for union activities, then he was fired sooner
because of his union activities."
On Robinson's cross-examination , it was elicited that
she stated in her affidavit with respect to Yavorsky's com-
ments regarding Windhorst's termination that: "He said
this in a kidding way, but I don't believe that Bruce [Wind-
horst] was let go for anything other than his union activi-
ties. But if he wasn 't, then his release was sped up because
of his union activities." Robinson acknowledged on cross-
examination that on August 24 she gave an affidavit to a
Board investigator in which she stated: "John Yavorsky
told us, 'no one is going to be fired nor has anyone been
fired for his union activities. Bruce [Windhorst] was not
fired for his union activities. His job is being put on the
computer."' It was also disclosed in her affidavit that Ya-
vorsky compared the office employees' working conditions
to those of the plant's unionized production and mainte-
nance employees, pointing out that the collective-bargain-
ing agreement between the Union herein and the Company
covering the unionized employees provided that they must
punch a timeclock, required them to take their vacations at
times specified by the Company, "and management cannot
3 Resp. Exh. 2
4 She testified . " I passed out many cards to employees . I was active
[in the union organizational campaign ]" and solicited "about ten" of her
coworkers to sign union authorization cards.
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make any allowance for them on special working time"
under their contract provisions. She did admit that Yavor-
sky, during the question and answer period, called the of-
fice employees' attention to the fact that with the Union,
"we would not have the personal relationship that we then
enjoyed with our supervisors. We would not be able to
have the special arrangements of time . . . we would not
be allowed to have special arrangements for working hours
that we had at the time." She concluded this phase of her
testimony by grudgingly agreeing after repeated questions
by counsel which she finally answered that "Nothing has
happened to my employment since I have been active in
the Union."
Jennifer Wright, day-shift supervisor of computer pro-
gramming, testified that she attended the July 24 meeting
at which Yavorsky spoke to about six employees of the
data processing department. When called as a witness on
behalf of the General Counsel, she stated that Yavorsky, in
discussing Bruce Windhorst's being laid off on July 18,
said: "that he felt Bruce was scheduled to be let go or-but
he felt that he may have been let go sooner because of his
union activities." An affidavit dated September 9, which
she gave to a Board investigator, reads: "I recall that dur-
ing the end of the meeting Yavorsky stated to the group in
a kidding way, I'll kill any of you who repeat it, but I don't
believe that Bruce Windhorst was let go for anything other
than his union activities. But if he wasn't let go for them,
then his release was sped up because of his union activities.
These may not have been the words that Mr. Yavorsky
used, but he gave the impression or implied that Windhorst
was let go for his union activities."
On cross-examination, Wright, who also attended union
meetings , denied Yavorsky said if the Union prevailed "we
would have to use a timeclock. We discussed the possibility
of a timeclock, but there was no definite statement made as
to whether we would or would not have one." The same,
she testified, was also true with respect to when vacations
would be assigned if the Union were to represent the office
employees. Also, she stated, Yavorsky pointed out the
ways in which the Union could be beneficial to the em-
ployees, such as having a grievance procedure and that
wages might be higher, citing a union plant where office
employees received more than they did. Wright testified
that in discussions with her coworkers, she also told some
of them that they probably would receive higher pay with a
union representing them. Wright testified that Yavorsky
assured them no one would be fired for union activities,
telling them that Windhorst was let go because his job was
abolished when the Company put in a computer system.
On redirect examination by the General Counsel, Wright
testified that she discussed "unions" with the employees
and told them "personally, I did not like unions and that I
did not want to join one. I would not join one."
The third time that Sylvia Robinson was recalled by the
General Counsel to the witness stand for additional direct
examination, she testified with respect to a meeting of the
office employees on or about September 16, at which time
Robert L. Soper, president of the Respondent Company,
addressed some of the office employees in the lunchroom.5
This meeting was held 6 days after the hearing, on Septem-
ber 10, of the representation case, supra. Robinson ex-
plained that the purpose of this meeting was to discuss the
complaints made by the office employees during the course
of a survey conducted in July by Crickenberg, vice presi-
dent of the Company. Robinson's testimony is as follows:
Soper commented on the recommendations made by
Crickenberger, a company official, who was appointed by
him to ascertain what complaints, if any, the office em-
ployees had regarding their working conditions. Soper also
discussed the salary reviews of the employees which the
Company makes twice yearly and he assured them he
would compare their salaries with what other companies in
the area were paying their employees performing compara-
ble work. He further stated that, if the survey revealed
there were any companies whose office employees were
unionized, that he would compare the Union' s wage scales
with Respondent's in determining whether their present
salaries were adequate. Also, that they would be paid cash
for overtime instead of being given compensatory time
which was the present policy of Respondent. Soper also
stated that, whenever their workload was too much for
them to "handle," additional workers would be hired. Rob-
inson also testified that Soper said: "That we would get the
better package of either Ingersoll-Rand or California Pellet
Mill, as far as benefits were concerned. That according to
Federal law, [we] would have an equal employment oppor-
tunity program for women and other minorities. He said
that we could trust him or Wierle [an official of Ingersoll-
Rand], to carry these things through. That we would have a
chance to work for not only California Pellet Mill, but now
with Ingersoll-Rand . . . a larger company and possibly we
would have more types of jobs available to us now and we
could transfer to where Ingersoll-Rand has plants in wider
geographical locations such as in other cities."
Robert Treseler, Respondent's treasurer, also spoke to
them at this September 16 meeting, testified Robinson,
about their salaries as compared with another company
owned by Ingersoll-Rand. Then there was a question-and-
answer period, followed by a visual presentation made by
means of a large tablet, referred to as a "flip-chart," which
was placed on an easel . Each of the 25 pages of this flip-
chart described the complaints made by various employees
in the July 19 survey. As Crickenberger, Respondent's vice
president, read the employees' various complaints which
were written on each page of the flip-chart, he would then
pause and Soper would comment with respect to the com-
plaints on each page of this visual presentation displayed
on the easel. (See Resp. Exh. 3.) After Soper completed his
comments which were read from prepared typewritten
pages,6 the employees again asked questions of Soper and
the other officials present. During the course of these meet-
ings, Soper, when under cross-examination, testified that
he emphasized to the office employees that the Company
was under legal restrictions not to discuss with them any
benefits they might receive because of the unfair labor
practice proceeding then pending. These legal restrictions
are enumerated in the prepared statement he read to the
3 A series of about six meetings with small groups were held over a period
of a few days at which the same format was used. See Resp. Exh. 5.
6 Resp Exh 4.
CALIFORNIA PELLET MILL COMPANY
employees at the meetings held on September 16. When
their questions were answered the meeting concluded.
Judith C. Stevenson, who has been employed for 6 years
by the Company, testified that she spoke with Treseler,
Respondent's treasurer, sometime in July "about many
things including grievances." During this conversation, ref-
erence was made to a memorandum dated July 22, 1974,
signed by Soper, president of the Company, to all office
employees which was posted on the plant bulletin board. It
read as follows:
It has been pointed out by several people that occa-
sionally CPM office employees have problems which
they wish to discuss with someone other than their
own supervisor. Consequently, we are asking Lou Ghi-
lardi to make time available to discuss such problems
with you if the occasion should arise.
Lou will be available by appointment only.7
It was elicited on cross-examination that this same sys-
tem had been in effect prior to the date of the above mem-
orandum except that she had discussed her problems with
either her immediate supervisor or Treseler prior to July
22, 1974. This was applicable also for all office employees.
Stevenson also testified on her direct examination by the
General Counsel that, prior to 1974, all the office employ-
ees had received an annual general pay increase "at Christ-
mas time," and on July 1, 1974, she and the other office
employees received, in addition to the annual general
Christmas pay raise, a "six percent cost of living" increase .8
When the General Counsel called Treseler, Re-
spondent's treasurer, for a second time as a witness on
her behalf, she questioned him with respect to "salary re-
views" of office employees that he conducted pursuant to a
request by Soper, president of Respondent, on June 26. He
testified that Federal wage controls which had been in ef-
fect from August 1971 were abolished in May 1974, where-
upon the Company decided to give the office employees
"two-step pay increases" which included a 6-percent cost-
of-living pay increase and merit increases which were put
into effect as of July 1. This two-step pay increase applied
to all of Respondent's nonunion employees in its six plants
throughout the United States and Puerto Rico.9
A memorandum signed by Soper and distributed to all
office employees on August 15 reads as follows:
As you are aware, several weeks ago you had an op-
portunity to participate in an attitude survey which
was conducted in our office. You were given strict
assurance that your written comments on the survey
would not be disclosed to any management person
here at the Company. Further, you were given assur-
ance that the results of the survey would be communi-
cated to you and that all of the problems which you
felt existed would be thoroughly discussed and correc-
tive action taken where possible.
7 Ghilardi is director of corporate personnel.
B Merit increases were given on no particular date but whenever the Com-
pany determined an employee deserved such an increase.
Respondent's union employees were provided for in their respective col-
lective-bargaining agreements.
443
I am happy to advise you that the results of the survey
have been tabulated and your individual responses
have been analyzed. In view of our recent merger with
Ingersoll-Rand Company, the details and results of
the attitude survey have been turned over to the cor-
porate personnel department of Ingersoll-Rand Com-
pany and we have been advised that the results of the
survey will be forthcoming within the next several
weeks.
Once the survey results are given to me, it is my inten-
tion to review those problems that are highlighted by
the survey and meetings with small groups of you will
be set up to review in depth the results of the survey.
These meetings will commence within the next several
weeks and, hopefully, each of us will benefit greatly
from the survey and those improvements that are dic-
tated by the survey will immediately be implemented.
Gail Cordes, John Lara, and Margarita Jerome, all of
whom signed union cards, were present at a get-together on
September 16 with Soper who requested them to head an
employees' grievance task force to consider the office em-
ployees' "physical working conditions" complaints and to
write a report "on an office-by-office basis" which would
include their supervision, wages, or anything else.10 The
three employees agreed to serve on this "task force."
Cordes submitted her written report to Soper on approxi-
mately September 26,11 which Soper, in turn, has posted on
the company bulletin board on the same date.12 Cordes'
report was also distributed to each office employee. Cordes
later submitted a second "report" to Soper which was not
distributed, as Soper told her, according to Cordes, that it
would be necessary to hold it in abeyance because of the
pending charges against the Company which the Union
had filed with the Board. However, explained Cordes, Sop-
er "went forward" with the suggestions embodied in her
first report. John Lara, the third member of this task force,
also submitted an undated report to Soper. (G.C. Exh. 6.)
IV. DISCUSSIONS AND CONCLUSIONS
In this proceeding, the bare recital of the facts is suffi-
cient to show no restraint, coercion, or interference within
the meaning of Section 7, nor substantial evidence of un-
fair labor practices encompassed by Section 8(a)(1). In ar-
riving at this conclusion, recourse was had and reliance
was placed upon accompanying circumstances. Consider-
ation has been given also to all the attendant circumstances
in the context of this overall perspective here presented.
These circumstances have been considered compositely
and inferences drawn which are reasonably justified by
their cumulative, probative effects. The fact that there is
10 The General Counsel 's representative stated that this testimony was
elicited to prove the allegations of the unfair labor practices of par 6(e) of
the complaint ; namely, the "institution of an employee grievance commit-
tee" and par . 6(f) "recommendations for improvements in vacations, holi-
days, overtime , pensions , merit increases . which were being made by
Ingersoll-Rand [parent company of Respondent] in order to discourage the
employees from supporting the Union. . " The General Counsel's repre-
sentative added that she was not alleging this "survey" to be "illegal "
IIGC. Exh 4.
iz See G .C. Exh. 5
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence considered, of and by itself , to support a decision
is not sufficient where there is opposing evidence so sub-
stantial in character as to detract from its weight and ren-
der it less than "substantial on the record as a whole."
With respect to the alleged violations of Section 8(a)(1)
which are detailed above , the test is whether the conduct
charged was reasonably calculated to interfere with the
employees ' free choice as to whether they desired to be
represented by the Union for the purpose of collective bar-
gaining . 13 Interference , restraint , or coercion is not mea-
sured by the employer 's intent or the effectiveness of his
action , but rather by whether the conduct is reasonably
calculated , or tends to interfere with the free exercise of
employees ' rights under the Act. 14The language and legisla-
tive history of Section 8(a)(1) shows that Congress intend-
ed in banning "interference" to proscribe any employer
activity which would tend to limit employees in the exer-
cise of their statutory rights. The key to interpretation of
Section 8(axl) is the purpose of the Act as expressed in the
preamble : To preserve to employees an atmosphere in
which they have full freedom of choice with respect to col-
lective bargaining and the designation of a bargaining rep-
resentative . Inherent in the very nature of the rights guar-
anteed by Section 7 is the concomitant right of full
freedom from employer intermeddling . Employees have as
clear a right to organize and select their representatives for
lawful purposes as the employer has to organize its busi-
ness and select its own officers and agents.
It may be stated that as to all these violations of Section
8(a)(1) alleged by the General Counsel that the Act does
not require an employer pending an election to refrain
from making economically motivated decisions involving
business matters or any changes in wage rates or other
working conditions necessary to the continued and orderly
operation of his plant, absent a promise or benefit condi-
tioned upon rejection of the union and/or any causal con-
nection between such changes and the rights accorded to
employees by the Act. No such causal connection has been
shown here . Normal business decisions must continue to
be made and frequently are necessary for efficient opera-
tion of the plant, even though it occurs during an organiza-
tional campaign . The proof adduced by the General Coun-
sel in this proceeding does not indicate that these matters
were abnormal or unusual so as to warrant an unfair labor
practice finding in the light of the various insubstantial
incidents detailed above . 15 And as stated in N.L.R.B. v.
American Ship Building Co., 380 U.S. 300 at 339 (1965):
"The correct test for determining whether §8(axl) has been
violated in cases not involving an employer 's antiunion
motive [as is the situation in the case at bar ] is whether the
business justification for the employer's action outweighs
the interference with §7 rights involved."
Any finding that the Respondent could not continue to
make normal business decisions such as pay increases dur-
ing the Union's campaign in keeping with Respondent's
established policy of past years clearly is contrary, not only
13 N.L.R.B. v. Wilbur H. Ford, and others doing business as Ford Brothers,
to the realities of industrial life, but also to the actualities
of industrial relations and the law, as such action on the
part of the Company , under the circumstances here re-
vealed, and the test stated by the Supreme Court in Ameri-
can Ship Building, supra, could not have interfered with,
restrained , or coerced the employees herein within the
meaning of Section 8(a)(1). This is particularly so in this
case where the Company was restrained from granting any
pay increases for a period of over 2 years because of wage
controls established by the Federal Government. More-
over, no objective evidence has been presented to show
that the alleged wages and benefits matters alleged to be
8(a)(1) violations were to be conditioned on the employees
voting for or against the Union ; nor is there any showing
that these matters were discussed with the intention of in-
ducing the employees to vote against the Union or to influ-
ence the outcome of the election.
Conduct which serves legitimate business ends dispels a
claim of illegitimate motives . An employer is free during an
organizational campaign to increase wages or otherwise to
institute improved conditions of employment if the
changes are motivated by legitimate business consider-
ations .16 Action taken by an employer in the pursuit of
legitimate business ends and without any intent to invade
employees' statutory rights, but to accomplish business ob-
jectives acceptable under the Act, is the overriding consid-
eration in situations of this type . There is no evidence here
that either the timing of the "surveys" which were conduct-
ed by the Respondent Company was intended by it to dis-
courage union activity nor conceived to counteract the or-
ganizing campaign . An employer's solicitation of
grievances during preelection meetings with employees nei-
ther violated the Act nor interfered with the election, even
though this solicitation carried with it an inference that the
employer was promising to correct any inequities that it
might discover . Uarco, Incorporated, 216 NLRB No. 2
(1975).
Certainly it cannot be laid down as a governing rule that,
during a union campaign , management must deny to its
employees increased advantages which in the absence of
the campaign would be granted.l" Even though there were
wage increases granted to the employees subsequent to the
rescission of the Federal Government 's wage freeze, never-
theless , if the Respondent Company was motivated by le-
gitimate business purposes, it is not prohibited by Section
8(a)(1), even though its incidental effect conceivably may
be to discourage union membership. Only if it were the
Respondent's express purpose to discourage such member-
ship is the "claim of legitimacy . . . totally dispelled." 18
This was not shown by the evidence in this proceeding.
In applying these principles to the facts in the case at
hand , it is evident that there was no violation of Section
8(axl) as the matters complained of by the General Coun-
sel had little , if any , tendency to restrain or coerce the
employees' free choice within the meaning of Section
8(axl). For, if it is apparent to the employees that there is
a legitimate business purpose for the employer's action,
they are not likely to consider this as something which
170 F.2d 735, 738 (C.A. 6, 1948). 16 Burns Brick Company, 80 NLRB 389, 391 (1948).
u Dixie Shirt Company, Inc., 79 NLRB 127, 128 ( 1948). 17 N L.R.B. v. W. T. Grant Company, 208 F.2d 710, 712 (C.A. 4. 1953).
IS Cf. Cranston Print Works Company, 115 NLRB 537, 540, 541 (1956) 18 N.L R.B v. Erie Resistor Corp et a!. 373 U.S. 221, 228 (1963)
CALIFORNIA PELLET MILL COMPANY 445
could be gained and retained if there were no union. Of
course, whenever motive determines the legality of con-
duct, the actor runs the risk that his motive will be subject
to scrutiny, but the burden of proving that the employer
has acted unlawfully rests upon the General Counsel. This
burden of proof, it is found, the General Counsel has not
maintained.19 Accordingly, viewed as a whole, and bearing
in mind that, in controversies of this kind the paramount
purpose of the Act is to secure to the employees freedom of
choice in the selection of their collective-bargaining repre-
sentative,20 it is found that the General Counsel's represen-
tative has not proved affirmatively by substantial, credible
evidence 21 the 8(a)(1) allegations of the complaint with re-
spect to instituting wage increases and a program whereby
employees could discuss their problems directly with Re-
spondent and to recommending to the parent company
certain additional benefits for its office employees 22 It is
also recommended that the section of the complaint which
avers Yavorsky threatened employees with restrictions on
their working conditions if they selected the Union be dis-
missed as there is not a modicum of evidence probative of
this charge.
A. Alleged 8(a)(3) Violation
The complaint alleges that Bruce Windhorst, who was
employed as a cost accounting clerk by Respondent for
approximately 13 months, was discriminatorily discharged
on July 18 because of his union activities.23 On June 25, he
met with a representative of the Charging Party Union at
which time he signed a union authorization card. He at-
tended about five meetings at the machinists' union hall
and he also held a union meeting at his home in San Fran-
cisco at which some of his coworkers were present. Author-
ization cards were distributed by union representatives at
these meetings. Windhorst distributed union cards to ap-
proximately three employees. On July 18, Treseler,
Respondent's treasurer, called Windhorst to his office, at
which time there were also present Shop Superintendent
Arthur Ackley and John Harness, manager of the cost ac-
counting department, who was Windhorst' s immediate su-
pervisor. Windhorst testified that Harness told him, "the
job that I was doing was being computerized and that it
wasn't feasible to keep me on the payroll. He wanted to
phase my position out." It is undisputed that Windhorst
was the least senior employee in the cost accounting de-
partment at the time of his dismissal.
On cross-examination, Windhorst testified that when he
was informed of his release no mention was made by those
present of either the Union or his union activities. When he
applied for unemployment insurance on July 21, written in
longhand on his application form is the following: "Lay
off-lack of work." By a letter addressed to the unemploy-
ment office, dated July 26, Treseler, the company treasurer,
stated that Windhorst "left work" because it "computer-
ized its shop payroll, and as a result claimant's position was
phased out." When asked why he did not mention to the
company officials that it was his belief that he was being let
go because of his union activities, he answered: "I didn't
think it was necessary."
After Windhorst had the terms "lay-off" and "dis-
charge" defined for him while he was on the witness stand,
he was then asked whether he was discharged or laid off on
July 18. He answered: "I was told I was laid off." On re-
buttal, it was elicited that none of the company officials
advised him on July 18, that "if work picked up [he] might
be called back."
Respondent gave Windhorst a letter of recommendation
dated July 23 in which John Harness, his supervisor, stated
that his "position has been phased out as a result of being
absorbed by our Data Processing Department." It de-
scribed him as "a diligent and capable worker [whose] at-
tendance and job attitude were very good. Harness' letter
concludes: "We were sorry his position had to be phased
out and I am happy to give this recommendation for him."
Jennifer Wright testified on direct examination by the
General Counsel that she spoke to Treseler concerning
Windhorst's dismissal and that she asked him whether
Windhorst would be "hired back" if there was a job avail-
able for which he was qualified and Treseler replied: "If
there was an opening and the supervisor was willing to hire
Windhorst that there would be no objection to him being
hired back by the Company." She continued that she told
this to Windhorst. On rebuttal, Windhorst testified that at
the time his employment ended on July 18 he was not told
that "if work picked up, he might be called back."
Treseler testified he learned for the first time, on July 12,
from Niki Bigelow, an office employee, who came to his
office on her own initiative and informed him that she had
been approached by Windhorst to sign a union card. She
again came to Treseler's office on July 15, and told him
that Sylvia Robinson and Judy Stevenson, office employ-
ees, also were engaged in the Union's organizing campaign.
B. Conclusions
19 Campbell & McLean, Inc., 106 NLRB 1049 (1953); W. C Nabors
d/b/a W. C. Nabors Company, 89 NLRB 538, 540 (1950); N.L R B v.
W T. Grant Company, 208 F.2d 710, 712 (C.A. 4, 1953).
20 International Association of Machinists; Tool and Diemakers, Lodge No
35, etc [Serrick Corp,] v. N.L.R B, 311 U.S. 72 (1940); N.L.R B. v. Pennsyl-
vania Greyhound Lines, Inc., 303 U.S. 261 (1938); N L. R.B. v. Jones & Laugh-
lin Steel Corp., 301 U.S. 1 (1937).
2 1 Robinson , an avid union proponent , whose perfervid interest amounted
to bias, rendered some of her testimony with respect to certain critical as-
pects of this case untrustworthy. Such testimony which is in conflict with the
findings of facts herein is not credited.
22 Cf. American Newspaper Publishers Association v. N L R B., 193 F.2d
782, 805 (C.A. 7, 1951)
23 His duties consisted of preparing the shop payroll and matching in-
voices, receiving tags, and purchase orders.
More than 4 months before union activity commenced
at the plant, Soper discussed with Harness the need to
computerize the shop payroll. After discussion by the com-
pany officials over a period of time, they concluded that
putting the payroll on the computer would result in a de-
crease in department costs by eliminating the need for the
services of one cost accounting department employee. The
installation and testing of the computer system was con-
cluded and approved on July 17. On July 18, Windhorst
was notified that, as he had the least seniority in the cost
accounting department, he would be "laid off." Respon-
dent contends that the installation of the computer system
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resulted in Windhorst 's "layoff, not his discharge."
As the record indicates , supra, Windhorst's organiza-
tional activities were such that he could not be character-
ized as a noticeably prominent union proponent 24 That
description could better be applied to Robinson who is
presently working for the Company. She was the most ag-
gressively active employee organizer openly supporting the
Union. She distributed many authorization cards to which
she obtained employees ' signatures to approximately 14 of
the 32 union cards signed by her coworkers.
An employer is not in violation of the Act if, for eco-
nomic reasons which serve legitimate business interests, he
lays off an employee so long as his real reason is not an-
tiorganizational or otherwise contrary to the Act's man-
date 25 The General Counsel must show improper motiva-
tion for this alleged 8 (a)(3) violation . This she has not
done . On the contrary , the Respondent came forward with
affirmative evidence of proper business justification.
Thereupon, the burden of going forward with evidence to
show that Windhorst , as alleged in the complaint was "dis-
charged because of his activities on behalf of the Union"
shifted to the General Counsel 26 This burden of proof of
antiunion purpose she has failed to carry. Moreover, the
dismissal of the alleged 8(a)(1) violations , supra, signifies
an absence on Respondent 's part of either union animus or
discriminatory motivation.
On these facts , it is concluded that Respondent did not
"discharge" Windhorst because of his activities on behalf
of the Union. It is found, therefore, that the General
Counsel's representative has failed to sustain her burden of
proving by a preponderance of the evidence that Respon-
dent discriminatorily laid off and/or discharged Bruce
Windhorst in violation of Section 8(a)(3) of the Act. Ac-
cordingly, it shall be recommended that the 8(a)(3) allega-
tion in the complaint be dismissed.21
24 Windhorst solicited approximately three employees to sign union cards
and attended five union meetings , one of which was held at his home.
21 N.L.R.B. v. Great Dane Trailers, 388 U S. 26, 34 (1967); N L.R B v
American Ship Building Co., 380 U.S. 300,311 (1965); N.L R.B. v. Waterman
Steamship Co, 309 U S. 206, 218-219.
26 N L.R B. v. Great Dane Trailers, Inc, supra, 33-34. Accord. Jervis Cor-
poration, Bolivar Division v. N.L R.B., 387 F 2d 107, 113, In. 4, (C.A. 6,
1967); N L R.B. v. Crosby Chemicals, Inc, 274 F.2d 72, 74, In 5, (C.A. 5,
1960).
17 N L.R.B v. United Brass Works, 287 F 2d 689, 693 (C.A. 4, 1961);
C. The Steel-Fab Doctrine
Under the Board's holding in Steel-Fab, 212 NLRB 363
(1974), the General Counsel contends that a bargaining or-
der is warranted to remedy the Respondent Company's
"serious" unfair labor practices which "prevented the hold-
ing of a fair election."
In view of the findings made above dismissing the al-
leged 8(a)(1) and 8(a)(3) violations, it would be devoid of
purpose to consider the relevancy of Steel-Fab to the situa-
tion at bar where no unfair labor practices were commit-
ted. In Steel-Fab, the Board held that Gissel-type bargain
orders would operate solely "in futuro" to remedy acts of
unlawful interference and discrimination that dissipated
the Union's majority and precluded the holding of a fair
election, and that findings of refusal to bargain violations
are undesirable and unnecessary . The Thirty-Ninth An-
nual Report of the National Labor Relations Board, at 86,
discusses thoroughly the obligation to bargain where unfair
labor practices are of such "pervasive and aggravated"
character as to preclude a fair election, and makes clear
that Steel-Fab has no application to the instant case where
there is no violation of the Act. Accordingly, it is recom-
mended that the allegations of paragraphs IX to XII inclu-
sive of the complaint be dismissed. fl
CONCLUSIONS OF LAW
The Company has not engaged in the unfair labor prac-
tices alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
Torrington Co v. N L R B., 506 F.2d 1042 (C A 4, 1974); Timken Co., 213
NLRB 486 (1974)
26 See Linden Lumber Division; Summer & Co v N L.R.B, 419 U S 301
(1974), where the Supreme Court held that an employer that has not en-
gaged in an unfair labor practice impairing the electoral process, does not
commit a violation of Sec. 8(a)(5) of the National Labor Relations Act
simply because he refuses to accept evidence of the union 's majority status
other than the results of a Board election . The Court stated that at least in
the absence of any agreement to permit majority status to be determined by
means other than a Board election , a union that is refused recognition de-
spite cards or other such evidence purporting to show that it represents a
majority of the employees has the burden of taking the next step and invok-
ing the Board 's election procedure . Cf. Elm Hill Meats of Owensboro, Elm
Hill Meats, Inc, Baltz Brothers Packing Company, 213 NLRB 874 (1974).