Ingersoll-Rand Co.

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).