Atwood & Morrill Co., Inc.

794 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Atwood & Morrill Co., Inc. and United Electrical, Radio & Machine Workers of America, Local 1204. Cases 11-CA-9483 and 11-CA-9787 July 12, 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On February 23, 1983, Administrative Law Judge Joel A. Harmatz issued the attached deci- sion. The Respondent and the General Counsel filed exceptions and supporting briefs, and the Re- spondent filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions only to the extent consistent with this Decision and Order. 1. As discussed below, we affirm the judge's finding that the Respondent lawfully withdrew rec- ognition from the Union on February 23, 1981. The record indicates that between February 19 and 21, 1981, during the pendency of a blocked de- certification petition, the Respondent received written statements from 21 of the 35 unit employ- ees indicating that they no longer desired union representation. Based on these statements, the Re- spondent notified the Union on February 23, 1981, that it was withdrawing recognition. The judge found that the Respondent withdrew recognition as a result of clear and unambiguous evidence that the Union had lost majority support. He found no evi- dence that the employees' statements lacked au- thenticity or that they were tainted by the Re- spondent's sponsorship or participation.2 Nor did the judge find any nexus between the Respondent's wage increase to employee Perry, 3 which the judge found violative of Section 8(a)(5) of the Act, and the repudiation of the Union, 8 months later, by 60 percent of the unit. Based on this record evi- i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 The parties stipulated to the authenticity of the employees' signa- tures The General Counsel did not contend that the Respondent fostered or supported the employees' statements 3 We correct the judge's inadvertent error in sec III,B,l,(a), par 2, to reflect that Kay Perry received the wage increase in 1980 We also note that Don Baird, the Respondent's production manager, admitted that Union Steward Jefferson never agreed to an increase of Perry's wages dence, the judge concluded that the Respondent lawfully withdrew recognition from the Union. In excepting to the finding that the Respondent lawfully withdrew recognition, the General Coun- sel argues that the judge failed to consider employ- ee expressions of union support and that the Re- spondent's withdrawal of recognition was prohibit- ed while the decertification petition was pending. We disagree. The evidence of employee support for the Union is ambiguous at best and is nullified by the major- ity's subsequent repudiation of the Union in late February 1981. Further, since the Respondent, in apparent good faith, withdrew recognition based on tangible evidence of loss of majority support, its withdrawal was lawful, notwithstanding the pend- ing decertification petition. As the Board stated in Dresser Industries, 264 NLRB 1088, 1089 fn. 7 (1982): "[I]f an employer is presented with a valid decertification petition supported by a majority of the unit employees, it may be privileged to with- draw from bargaining." We similarly recognized in RCA Del Caribe, Inc., 262 NLRB 963, 965 fn. 13 (1982), that, during the pendency of a question concerning representation, an employer in good faith may withdraw recognition based on objective considerations.4 Accordingly, we agree that the Respondent lawfully withdrew recognition and dis- missed the 8(a)(5) allegation. 2. We do not adopt, however, the judge's finding that the Respondent violated Section 8(a)(5) of the Act by unilaterally granting a 20-cent-per-hour wage increase to employee Perry on June 17, 1980. Thus, immediately after the increase, the Union filed a grievance under the extant collective-bar- gaining agreement claiming that the Respondent improperly reclassified Perry from labor grade 5-C to a labor grade 5-A position. The Respondent de- fended the reclassification, and the attendant 20- cent-per-hour wage increase, under article VI, the contract's management-rights clause,5 and article 4 See also Hemet Casting Co, 260 NLRB 437, 446 (1982); GAF Corp, 195 NLRB 169, 170 (1972). To the extent Turbodyne Corp., 226 NLRB 522, 525 (1976), and Mervyn's, 240 NLRB 54, 60 ( 1979), can be read to preclude an otherwise lawful withdrawal of recognition during the pend- ency of a question concerning representation , we expressly overrule them. Member Cracraft did not participate in Dresser Industries or RCA Del Caribe. Although she agrees with the propositions for which they are cited above, she does not pass on any other aspects of those cases 6 Art VI provides, inter alia, that Without limiting the generality of the foregoing, the sole and exclu- sive rights of management which are not abridged by this Agree- ment include, but are not limited to, the full and exclusive control, direction and supervision of the work force, the hire, promotion, de- motion, transfer and the assignment of work to employees with- out restriction 289 NLRB No. 100 ATWOOD & MORRILL CO. 795 XXXI that provided,. in relevant part, that "Em- ployees may be hired at rates above the minimum set forth in Schedule A [the contract wage scale] if the Company determines that their skills so war- rant." Although the judge found that the Respond- ent had at least a colorable contract defense to the unfair labor practice charge, he, nonetheless, found a violation "rest[ing] simply upon the more appro- priate interpretation" of the contract. We disagree. Where, as here, the dispute is solely one of con- tract interpretation, and there is no evidence of animus, bad faith, or an intent to undermine the Union, we will not seek to determine which of two equally plausible contract interpretations is correct. NCR Corp., 271 NLRB 1212, 1213 (1984). Accord- ingly, we find no 8(a)(5) violation. 3. Nor do we adopt the judge's finding that the Respondent violated Section 8(a)(1) of the Act on March 10, 1981, by unilaterally granting employees a wage increase, floating holiday, and increased sickness and accident benefits. The judge found these increases unlawful on the theory that, during the pending question concerning representation, the Respondent's grant of benefits presumptively had the unlawful purpose of influencing employees in their selection of a bargaining representative. Be- cause the Respondent did not rebut this presump- tion by establishing that the increases were justified by legitimate business considerations, instead of being made to impede Board decertification proce- dures, the judge found the increases violative of Section 8(a)(1). We disagree. In the unusual circumstances of this case, where (1) as we find below, the increases were not discri- minatorily motivated, (2) the Respondent had al- ready, as we have now concluded, lawfully with- drawn recognition from the Union, and (3) for the reasons explained below, there was no cognizable election in prospect at the time the increases were made, we cannot conclude that the Respondent is properly chargeable with coercing the employees' choice in the election or otherwise impeding the Board's decertification procedures. Although the Regional Director did not in fact dismiss the decer- tification petition until August 23, 1982, the petition should have been dismissed on the issuance of the complaint on the 8(a)(5) charge alleging an unlaw- ful withdrawal of recognition. See NLRB Casehan- dling Manual, Part I, Unfair Labor Practice Pro- ceedings, Section 11730.3. Although there may be a theoretical basis for a fording that the Respond- ent's grant of benefits could interfere with employ- ee free choice in a decertification election, where, as here, because of the prior lawful withdrawal of recognition and eventual dismissal of the petition, no election was ever held (and when the decertifi- cation petition should properly have been dismissed even earlier), we cannot conclude that it effectu- ates the purposes of the Act to ford that the grant of benefits violated the Act in this respect. 4. Although we agree with the judge that the Respondent's March 10, 1981 unilateral increase in wages and benefits did not violate Section 8(a)(3) of the Act, we do so for the following reasons.6 The General Counsel offered no evidence that the Respondent granted the floating holiday and in- creased sickness and accident benefits in order to undermine union support. Nor, under all of the record evidence, has the General Counsel estab- lished that the March 10, 1981 wage increase was discriminatorily motivated. The Respondent grant- ed the increase more than 1 year after the previous employee wage increase. Although the amount of this increase exceeded that which the Respondent offered, or was willing to propose in negotiations, this alone does not render the increase unlawful. During negotiations, the Respondent was propos- ing figures based on a 3-year contract package rather than on a single increase. Moreover, follow- ing the withdrawal, the Respondent considered ad- ditional factors when setting the amount of its wage increase including local market conditions, comparable pay, and preservation of employee skills. The fact that, as a result of its withdrawal of recognition, more funds were available for it to ad- dress these additional concerns merely reflects a re- alistic assessment of the Respondent's new position following its withdrawal of recognition. It does not, standing alone, prove unlawful motivation. Nor has the General Counsel demonstrated dis- criminatory intent. Accordingly, we dismiss the 8(a)(3) allegations. 5. Finally, as we find that the Respondent has not violated the Act, we agree with the judge that a bargaining order is unwarranted in this case. ORDER The complaint is dismissed. 6 We expressly disavow the judge's fording that Sec. 8(a)(3) is limited to discriminatorily motivated "detriments." Benefits, as well as detri- ments, imposed for a proscribed object , violate Sec. 8(a)(3). Flite Chief Inc., 220 NLRB 1112, 1120 (1975), enfd. 626 F.2d 866 (9th Cir. 1977). See generally St. Elizabeth Community Hospital, 240 NLRB 937, 941 (1979). Howard M. Kastrinsky, Esq., for the General Counsel. Stuart M Vaughan, Esq. and John Lynch, Esq. (Ogletree, Deakins, Nash, Smoak & Stewart), of Raleigh, North Carolina, for the Respondent. Steven Hochman, of Winston-Salem, North Carolina, for the Charging Party. I 796 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This proceeding was heard by me on September 29 and 30, 1982, in Washington, North Carolina, on an original unfair labor practice charge filed on October 23, 1980, and a consolidated complaint issued December 3, 1981, which, as amended, alleged that Respondent independ- ently violated Section 8(aXl) of the Act by inducing em- ployees to withdraw union support by offering possible wage increases and by threatening employees with dis- charge for engaging in union activity, and violated Sec- tion 8(a)(3) and (1) of the Act, by increasing the wages and benefits of employees represented by the Union. The complaint further alleged that Respondent violated Sec- tion 8(a)(5) and (1) by refusing to recognize and bargain with the Union as the majority representative of employ- ees in the appropriate unit, and by making various unilat- eral changes, without notifying the Union, in terms and conditions of work of employees in the appropriate col- lective-bargaining unit. In its duly filed answer, Respond- ent denied that any unfair labor practices were commit- ted. Following close of the hearing, briefs were filed on behalf of the General Counsel, the Charging Party, and the Respondent. On the entire record in this proceeding' including consideration of the posthearing briefs, and my opportu- nity directly to observe the witnesses while testifying as well as their demeanor, I find as follows FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent is a Massachusetts corporation with a plant located in Washington, North Carolina, the sole fa- cility involved in this proceeding, from which it is en- gaged in the manufacture of special valves used by power plants and in marine turbines in the petro-chemi- cal industry. In the course of the operation, during the calendar year preceding issuance of the complaint, a rep- resentative period, Respondent received goods and raw materials from points located directly outside the State of North Carolina, which exceeded $50,000 in value, and manufactured and shipped directly to points outside the State of North Carolina, products valued in excess of $50,000. The complaint alleges, the answer admits, and I find that Respondent is now and has been at all times material an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The complaint alleges, the answer admits, and it is found that Local 1204, and its International, United Elec- trical, Radio and Machine Workers of America (collec- tively as the Union) are labor organizations within the meaning of Section 2(5) of the Act. 1 Following close of the hearing, counsel for the General Counsel and Respondent both moved to correct the official transcript in certain par- ticulars. Certain errors in the transcript are noted and corrected III. THE ALLEGED UNFAIR LABOR PRACTICE A. Preliminary Statement Basically at stake in this proceeding is the question of whether statutory remedies ought be invoked to enforce continued recognition of a previously certified represent- ative, an issue that finds its origin in an initial organiza- tional campaign waged in 1979. Thus, on July 26, 1979, the Union was designated in a Board-conducted election as representative of Respondent's production and mainte- nance employees at the Washington, North Carolina plant by a vote of 32 for union representation, 29 against, with 1 challenged ballot. Within a few days, on August 3, 1979, the Union was certified and shortly thereafter negotiations commenced on August 14, 1979, continuing until January 28, 1980, when 1-year agreement was exe- cuted.2 However, the first year of this newly founded re- lationship was marked by controversy, including sugges- tions that employees were disenchanted with their statu- tory representative as well as charges by the Union as to foul play in the Employer's approach to employee orga- nizational rights. The latter was memorialized in exten- sive unfair labor practice charges filed by the Union on October 23, 1980,1 and the instant consolidated com- plaint, which, inter alia, includes allegations that between May 12 and June 16, 1980, the Respondent engaged in the conduct outlined below: 1. In June 1980, Respondent violated Section 8(a)(1), through Supervisor Robert Hines having offered "em- ployees the possibility of increased wages and other ben- efits if they abandoned their support for the Union...." 2. On June 18, 1980, Respondent violated Section 8(a)(1) through Supervisor Matthew Reddick's and on June 20, 1980, through Don Baird's having, "Threatened its employees with discharge for engaging in union ac- tivities." 3. On May 12, 1980, Respondent violated Section 8(a)(5) and (1) of the Act by reclassifying and granting a wage increase to employees "unilaterally, without notify- ing the Union.. . . 4. On June 9 and 16, 1980, Respondent violated Sec- tion 8(a)(5) and (1) of the Act when it "unilaterally re- fused to allow stewards to file grievances." Against the foreground of this alleged misconduct, a decertification petition was filed on behalf of employees on November 26, 1980. The petition was timely filed, and would have been processed to election but for the pending unfair labor practice charges. Well after issuance of the instant complaint, the petition was dismissed by the Regional Director on August 23, 1982, almost 20 months after filing. In the interim, notwithstanding pendency of the peti- tion, contract renewal negotiations opened on January 14, 1981.4 Thereafter, on January 28, the expiration date of the agreement, negotiations were adjourned indefinite- ly, with the parties unable to achieve an accomodation. 2 See G C Exh 2 ' See G.C. Exh. 1(a). 4 Unless otherwise indicated all dates refer to 1981 ATWOOD & MORRILL CO. 797 It is noted that the complaint does not in any respect challenge the propriety of Respondent's conduct in con- nection with or in the course of these negotiations. Thereafter, a further bargaining session was scheduled through the Federal Mediation and Conciliation Service for February 23. However, an illness of the Company's chief spokesman led to postponement until February 28. In the interim, however, between February 19 and 23, 21 of the 35 employees in the appropriate unit at that time submitted statements to Respondent to the effect that they no longer wished to be represented by Local 1204.8 Based on the foregoing, by letter dated February 23, 1981, Respondent informed the Union, as follows: On Friday, a substantial majority of our employ- ees informed us, in writing, that they no longer want the UE or Local 1204 of the UE to represent them. Because of this, we now have a good faith doubt that your union represents a majority of the employees in the unit certified by the NLRB. Accordingly, we cannot continue to recognize Local 1204 as the collective bargaining representa- tive of these employees and will no longer deal with your union as their representative in matters pertaining to wages, hours and working conditions.6 As indicated, the issue of primary concern in this pro- ceeding is whether, in the face of clear and undisputed repudiation by an employee majority, the bargaining re- lationship should be reestablished by a remedial order. Three distinct theories are advanced in quest of such relief. The first is found on a claim that repudiation of the Union was tainted by the Employer's unlawful con- duct. Thus, it is contended that Respondent unlawfully inspired the erosion of the Union's majority by various unfair labor practices outlined above and hence, Re- spondent should be deemed obligated to continue to rec- ognize and bargain with the Union until redress of the illegalities . See, e.g., Chet Monez Ford, 241 NLRB 349 (1972), enfd. sub nom. NLRB v. Chet Monez Ford, 624 F.2d 193 (9th Cir. 1980). In the alternative, it is argued on behalf of the complaint that even if no unfair labor practices were committed during the period prior to the employee defections, a bargaining order would nonethe- less be justified on the basis of changes in working condi- tions unilaterally effected by the Employer after the withdrawal of recognition, but before the Board had an opportunity to resolve the question concerning represen- tation raised by a then pending decertification petition. See Turbodyne Corp., 226 NLRB 522 (1976). To support this alternative view, the complaint includes allegations that further unfair labor practices were committed by the Respondent between March and May 1981, particular- ized as follows: 1. On March 10,. 1981, Respondent violated Section 8(a)(1), (3), and (5) of the Act by increasing the wages and benefits of its employees. 5 See R. Exhs. 4(a) thru (u) and R. Exh. 12. The General Counsel does not contend that the Company in any way fostered or solicited the with- drawals, nor is it argued that these documents either lacked authenticity or constituted insubstantial proof of loss of majority. 6 See G.C. Exh. 9. 2. Respondent violated Section 8(a)(5) and (1) of the Act by on March 20, 1981, refusing to negotiate with the Union concerning health and safety matters. 3. On May 1, 1981, Respondent violated Section 8(a)(5) and (1) by unilaterally, and without notifying the Union, restoring the canteen rights of employees. As its final alternative position, the General Counsel proposes that as per Michigan Products, 236 NLRB 1143 (1978), since the postwithdrawal unfair labor practices precluded the possibility of a fair election on the decerti- fication petition remedial bargaining order is warranted under the auspices of NLRB v. Gissel Mfg. Co., 393 U.S. 575 (1969). Basically, by way of defense, Respondent urges that the consolidated complaint be dismissed in its entirety in that it engaged in no unlawful conduct either before or after it withdrew recognition from the Union on the basis of indisputable evidence that a majority of the em- ployees had rejected union representation. B. Concluding Findings 1. The prewithdrawal unfair labor practices a. The wage increase and alleged reclassification This allegation rests on a wage increase granted to a single employee, Kay Perry, during the term of the col- lective-bargaining agreement . At times material Perry was a documents clerk, a labor grade 5-C position. Prior to the events in issue here, she earned $4.44, the top rate for her classification under the contractual wage sched- ule. Documentary and parole evidence discloses that on June 17, 1980, while the collective-bargaining agreement was in effect, Perry's hourly rate was increased to $4.64. Respondent explained this action as triggered by termina- tion of Perry's former supervisor on May 9, 1980, which promoted a review of her job classification. According to Don Baird, Respondent's production manager, he evaluated Perry's performance and based thereon deter- mined that in view of her duties, at least since his arrival at the plant, particularly the responsibility she exercised independently, a 20-cent-hour increase was justified. As indicated, the increase was not granted until June 17, 1981. The testimony is in conflict as to what tran- spired in the interim. According to Baird, about May 12, he contacted Ronnie Jefferson, the chief union steward, to inquire whether the Union had any objection to the increase. Jefferson indicated that he was unsure that it would be a problem, but wanted to talk to the union committee. Thereafter, Baird and Jefferson had several conversations in which, according to Baird, it was indi- cated that the Union had no problems with the increase in Perry's rate, but wanted other positions upgraded as well, particularly that held by Sharon Grice. Baird claims to have examined Grice's job classification, and to have informed Jefferson that she was appropriately placed in the 5-A labor grade. Baird also claims that con- versations concerning the increase took place on at least a half dozen occasions and continued over a period of "some weeks." Finally, according to Baird, on June 16, he informed Allen that he was going to give Perry the increase. 798 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD b. Alleged 8(a)(5) and (1) Violation Jefferson testified to the effect that his conversations with Baird concerning Perry's wage increase were con- fined to a single day. He related that Baird first informed him of the Company's intention in this respect on June 11, 1980, in the front office, requesting that Jefferson inform the "committee." Then, after Jefferson assertedly consulted with Union President Allen Roberson and Vice President William Roach, he avers that he again discussed the matter with Baird after lunch, indicating that the matter would have to be negotiated. Later that same day, according to Jefferson, Baird approached him in the weld shop, stating "he already gave Kay Perry a raise on May 12th" and he did not have to negotiate "under management rights."7 Baird also testified that he did not decide to effect the increase until after he discussed the matter with Allen Roberson, the Local's president. Baird claims that he went to Roberson's work station where he told him that he had reached an impasse with Jefferson and wanted to put the increase into effect if the Union had no objection. According to Baird, Roberson also expressed that he had no objection to the Perry raise, but wanted to upgrade Sharon Grice. This was denied by Roberson, who claimed that he received no notification from the Com- pany concerning Perry's wage increase, but instead first learned of the matter when Jefferson reported that Baird told him that the raise had been already placed in effect.8 Although I credit Baird's testimony in its essen- tial particulars, I believe as a matter of hindsight he merely interpreted the Union's position as tantamount to assent to the Perry increase. I do not, however, accept that this was the case.9 The absence of such assent is de- terminative. For, on analysis it is concluded that the rate ranges set forth in the governing collective-bargaining agreement could not be altered unilaterally under any circumstances. Thus, whether an impasse was reached on the Company's professed desire in this respect is immate- rial, for as stated in Fourco Glass Co., 250 NLRB 953 (1980), enfd. denied 646 F.2d 863 (4th Cir. 1981): Section 8(d) of the Act clearly provides that neither party to a collective-bargaining agreement is re- quired "to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modification is to become ef- fective before such terms and conditions can be re- opened under the provisions of the contract." The fact that the Union was willing to listen to the pro- posal, and did not disagree that the proposal was 7 Jefferson in effect denied that the Union's sole objection to Kay Perry's pay increase was based on its claim that Sharon Once should also receive an increase. 8 In this respect Roberson's testimony seems to conflict with that of Jefferson who indicated that he consulted Roberson and Roach before he was informed by Baird that the increase had already been placed in effect. Roach was not examined about his involvement in the matter 9 Note that on June 17 , 1980, the Union filed a grievance alleging that the "Company is knowly [sic] changed the contract in Schedule A 11 See R Exh 8 The Company's response omitted any claim that the Union had assented to this change, a response that would have been the most obvious, particularly since the answer was prepared at the third step by Baird himself not "fair and equitable," did not constitute a waiver of its rights under Section 8(d) of the Act. Nor was the conduct excusable as affecting a subject matter that the Union had already bargained away. For neither the management rights clause set forth in article VI nor the reference to flexibility conferred in connec- tion with rates of new hires in article XXXI, section C, constituted a clear and unequivocal waiver on the part of the Union with respect to any form of revision of the agreed-upon rate schedule be it upward or downward."o Thus, Respondent's action, in granting the increase, without first obtaining agreement of the Union, violated Section 8(a)(5) and (1) of the Act."" There are a number of circumstances, however, that mitigate the scope and extent of this violation. First, only one employee was involved. Further, there is no evi- dence that the matter was subject to direct dealing be- tween any official of Respondent and Perry, the employ- ee affected.12 Moreover, unlike cases involving a dispar- aging bypass, Respondent consulted the Union repeated- ly seeking its assent, which in all probability, was with- held due to the Union's opportunistic effort to exert le- verage for upward revision in the wage scale covering other jobs, which in the Union's view were underpaid. Finally, Respondent's defense that the contract did not prohibit merit increases over and above rates specified in the contract was at least colorable. Hence, the conclu- sion as to the unfair labor practice rests slimly upon the more appropriate interpretation that the Employer was so restrained, and that, having acted without union assent, the increase technically violated Section 8(a)(5) and (1) of the Act. 2. The alleged promise of benefits The General Counsel looks to testimony of employees Billy Roberson and Ricky Woolard to substantiate the assertion that Supervisor Robert Hines unlawfully stated in June 1980 that it was possible that wages would have been higher had the Union not been in the plant. Thus, Woolard testified that in that time frame he and Hines were engaged in conversation in his work area when Woolard stated that he had heard that if the Union had not gotten in he would not have a job. Hines responded that Woolard was probably right. According to Woo- lard, as the conversation continued, he inquired of Hines whether employees would have gotten a larger raise if there were no union. To this, Hines allegedly responded "possibly . . . you would have probably got double." Woolard asserts that he then asked, "What, we would 10 See, e g, Hilton Hotels Corp, 191 NLRB 283, 288 (1971), Press Co, 121 NLRB 976, 977-978 (1958); NLRB v Perkins Machine Co, 326 F 2d 488, 489 (1st Cir 1964) 1' Oak Cliff-Golmon Baking Co, 207 NLRB 1063 (1973). 12 Perry was reputed to be an antiumon employee, and she did in fact file the decertification petition in November 1980 However, evidence re- ceived failed to disclose just when she developed such a posture or whether Respondent was mindful of it at the time of the instant wage increase. In this latter connection, although the General Counsel attempt- ed to examine Baird as to his knowledge in this respect , when objection was interposed and I sought to be educated as to relevance, the General Counsel elected to withdraw, rather than clarify the pertinence of his ex- amination ATWOOD & MORRILL CO. 799 have got a bigger raise?" To this, Hines allegedly re- sponded, "yeah," but then recanted, stating: "No, I didn't mean it that way." According to Woolard, Hines also stated that "the atmosphere would probably be better without a union . . . we'd probably have canteen rights."' 3 Billy Roberson was able to corroborate Woolard only to a limited extent. On direct examination, he afforded the following: I hear Robert Hines tell Ricky Woolard that if we didn't have a union, we would get more money. And then Ricky Woolard reply and said what he said, "If the union wasn't in, we would have got more money?" And Robert Hines reply, he said, "No, I didn't mean it like that." Then I had to go to the tool crib to get a tool and that's all I heard of that discussion.' 4 Hines denied making any statement to the effect that wage rates or benefits were influenced by the presence of the Union. I credit him. He impressed me as a straightforward witness, whom I regarded as credible. I also consider it unlikely that he would have ventured to express the views imputed to him by Union Steward Woolard. Beyond Roberson, and although three other employees were present, there was no further corrobora- tion of Woolard, who was a particularly unpersuasive witness and who seemingly allowed a bias to influence his accounting of the facts in several additional areas. His testimony concerning this incident, to the extent that it transcended wages and related to other benefits, was un- corroborating and lacked a plausible ring. Also question- able was testimony of corroborating witness Roberson, who claimed to be 8 feet away, and who admittedly heard only a segment of the conversation. It was not my impression that Roberson was' possessed of capacity for recall sufficient to allow attestation as to the substance of the exchange on the occasion in question. I sum, based on Hines' credited denial, the 8(a)(1) allegation in this re- spect shall be dismissed. C. Threats of Discharge The complaint imputes coercive threats to Supervisor Matthew Reddick on June 18, 1980, and to Plant Manag- er Baird, on June 20, 1980. As for Reddick, the allega- tion rests on the uncorroborated testimony of Ricky Woolard. By way of background, it is noted that on Sat- urday, June 14, a barbecue was held by employees to raise funds for the Union. Certain employees were sched- uled to work overtime that day, including Carlton Gurley, who elected to attend the barbecue, rather than Is At the time, the Company was interpreting the collective-bargaining agreement as confining employee access to the canteen to scheduled breaks. 14 In his prehearing affidavit given to the General Counsel, Roberson described what he heard as follows: I hear Robert Hines say that if the Union wasn't in the plant, we would have probably got more money. Woolard said to him in a loud voice, what he said that if the union is voted out, we would get more money? Hines said, "I didn't mean that like that." Then I left my station to get something and I did not hear any more of this con- versation. work. On the next working day, Monday, June 16, 1980, Supervisor Reddick met with Gurley in the presence of Woolard, who was present as Gurley's steward. Later that day, Gurley was called to the office of Plant Man- ager Baird and discharged.' 5 According to Woolard, about 2:30 p.m., Reddick walked by and simply com- mented either "you're next" or "who's next." It is not clear that the alleged remarks were made before or after the Gurley discharge. In any event, Reddick denied making any such comment, and here again, I regarded the testimony of Woolard as unreliable. It was my im- pression that Woolard was incapable of recalling details with any degree of clarity and, indeed, the certainty he expressed when cross-examined about what he possibly could have heard at the time was highly suspect and convinced that his overall testimony was more a product of perspective reshaped by strong union alliances, than an accurate accounting of events as they had occurred. The allegation that Respondent violated Section 8(a)(1) through any threatening remark on the part of Reddick is dismissed. As for Baird, it is noted that Respondent, in June 1980, filed an unfair labor practice charge alleging that Local 1204 had engaged in unlawful coercion of employees. In connection therewith, an agent of the National Labor Relations Board interviewed William Roach, a union vice president and shop steward, informing him that he had been charged with "threatening employees." Ac- cording to Roach, the next day he had a conversation with coworker Tommy Hardison in which the latter in- quired as to what the labor investigator wanted, where- upon Roach stated to Hardinson "he wanted to see me over some lies . . . told on me."'s According to Baird, Chandler, after he had been ques- tioned by the Board agent, reported to Baird that Roach told Chandler, Hardinson, and Shelton Lilley that they "were playing games with their lives."' 7 He claimed that he discussed the matter with Hardinson and Lilley who confirmed Chandler's report.' 8 Baird relates that he then called Roach to his office and told him that he would not tolerate threats by one employee to another and that if Roach did that again he would be terminated. 15 Woolard did not participate in the discharge interview as Gurley then was represented by Chief Steward Ronnie Jefferson. 16 Hardinson testified that he had a conversation with Roach, in the presence of coworker Jermr Chandler. He claims that at the time they were "just screwing around," but that they discussed that " somebody filed a charge and Roach had threatened their life for doing that." In this context Hardison asserted that Roach said something about "some people like to play games with their life." Hardison went on to testify that Chan- dler informed him that he would file charges to the effect that Roach had threatened his life. Later, Hardison was called as a rebuttal witness for the General Counsel, it is difficult to comprehend the statement of the latter's posthearing brief to the effect that "no evidence was proffered of any alleged threats made by Roach." 17 The testimony of Hardinson confirms that Roach used language to the effect that any employee who accused him of misconduct in the course of an investigation by the National Labor Relations Board would be "playing with their lives." 18 Although Hardinson denied that he discussed the matter with Baird, this aspect of his testimony was probably incorrect. 800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Baird also indicated that he would again file charges with the National Labor Relations Board.'s The General Counsel maintains that "there is not one item of evidence to support Respondent's contention that Roach threatened any employee." In the light of Hardin- son's testimony, an observation possessed of greater ac- curacy and pertinence would be to the effect that there is not one iota of evidence to support the General Coun- sel's contention that Baird's warning in any sense related to any protected activity on the part of Roach. Contrary to the position advanced in support of this allegation, the General Counsel's own evidence discloses that Roach's alleged misconduct was the focus of a Board investiga- tion and that Roach plainly implied that those giving evi- dence in that connection "were playing with their lives." The General Counsel's evidence further discloses that another employee, Chandler, was sufficiently disturbed by this remark to call it to the attention of manage- ment.20 When this information reached Baird, he called Roach in and warned him that such misconduct in the future would result in discharge.21 Accordingly, I find that the statements made by Baird to Roach on the occasion in question constituted a legiti- mate exercise of management's right to correct employee improprieties and to maintain plant discipline. Finally, under no circumstances could it be fairly concluded that the action was in any way prompted by Roach's having participated in activity protected by the Act. Hence, the 8(a)(1) allegation in this respect shall be dismissed. 1. Refusal to permit stewards to file grievances The complaint alleges that Respondent violated Sec- tion 8(a)(5) and (1) of the Act because it, "on or about June 9, 1980 and June 16, 1980, unilaterally refused to allow stewards to file grievances." At the core of this al- legation is Respondent's position taken in defense of cer- tain grievances that, in its opinion, were not processed in accordance with the procedure defined in article II of the then subsisting collective-bargaining agreement and the condition set forth in section 4 thereof that "Failure on the Union's part to follow the steps of the grievance procedure shall be considered just cause for the griev- ance to be dropped." 19 Although the General Counsel in his brief states that Baird did not accuse Roach of threatening anybody, Roach's own testimony discloses that Baird accused him of "running around threatening people." 20 The General Counsel urges that an adverse inference be drawn against Respondent by virtue of its failure to call Chandler or Lilley. Any inference supportive of the complaint that could be drawn in this respect was neutralized by the account of Hardinson , which confirms the basis for Baird's action, by pointing out the threatening remark as well as the fact that fellow employee Chandler was sufficiently disturbed to report the matter and declare his intention to file charges. Furthermore, Hardinson's own subjective reaction to Roach's statement is beside the point in evaluating the coercive nature thereof. Si The General Counsel's reliance on NLRB v. Burnup & Sims, 379 U S 21 (1964), is misplaced The holding and rationale in that case per- tains soley to discipline imposed, albeit in good faith, under mistaken belief that an employee engaged in misconduct in the course of acknowl- edged protected activity . Unless an employee's displeasure with the fact that a coworker elects to cooperate with a Board investigator is to be deemed protected, it taxes imagination as to just how this allegation re- lates to conduct protected by Sec. 7 of the Act. Under the contract, step one requires that "the griev- ance be taken up by the effected employee with his im- mediate supervisor . . . the employee may have a shop steward from his area present if the employee so de- sires." In reliance on this language , Respondent denied two grievances at the third step. The first related to the discharge of Gurley and the second involved a warning issued to Al Roberson. Both grievances were denied by Respondent on grounds that a step one grievance had not been filed with respect to either. The central focus of this allegation is on Machine Shop Supervisor Matthew Reddick. It is claimed that Reddick precluded the step one filing of the above griev- ances of Gurley and Roberson. It will be recalled that Gurley and Roberson declined to work mandatory over- time on Saturday, June 14, 1980. Gurley's failure to work the overtime generated several meetings the fol- lowing Monday, June 16. At the second meeting, Gurley, Shop Steward Rickey Woolard, Matthew Red- dick, and Lee Penrod, Respondent's operation manager, were present. Woolard and Gurley agree that during this session Woolard indicated that he wanted to file a griev- ance. At this juncture, according to Gurley, Penrod in- quired of Woolard, "Why do you want to file a griev- ance since nothing's happened . . . there's no charge been charged against this man."22 Both Woolard and Gurley agreed that at the time of this conference Gurley had received no warning, nor had Gurley been otherwise subject to discipline. It was also conceded that no one at- tempted to file a first step grievance at any time after Gurley's discharge, and there is no evidence whatever that a second grievance was ever processed in this re- spect. Reddick, while denying that he ever precluded the filing of a grievance, acknowledge that, in the confer- ence with Woolard and Gurley, Woolard indicated that he wished to file a grievance.23 In response to this re- quest, Reddick asked Woolard, "What was the grievance . .. all I was asking for was why he was not at work on Saturday."24 Contrary to the General Counsel and the Charging Party, the position of Reddick in connection with Gurley in no way impeded access to contractual remedies with respect to any matter within the jurisdiction of the con- tractually defined grievance machinery. Under the ex- pressed terms of the subsisting collective-bargaining 22 Lee Penrod, Respondent's operation manager , was responsible for handling grievances at the second step . He testified without contradiction that he had never been requested to process a step two grievance with respect to the Gurley discharge. 2s Woolard admitted that Carlton Gurley did not request a grievance in the confrontation with Reddick, but that it was Woolard himself who indicated that he had a grievance . However, the step one, in terms, seem- ingly requires that the employee himself file As stated , "the grievance shall be taken by the affected employee with his immediate supervisor, and the employee may have the shop steward from his area present if the employee so desires." 24 Woolard testified that his indication that he wanted to file a griev- ance was met by Reddick's response that "he [Reddick] would decide when it was the first step of grievance ." Woolard's testimony was uncor- roborated, seemed unlikely, and is rejected Note that this was identical to an assertion contained in a grievance filed by Woolard, a week earlier on June 9, 1980 See R Exh 9 ATWOOD & MORRILL CO. _ 801 agreement, a grievance is defined as "a difference of opinion between the company and the union or any em- ployee in the company as to the interpretation, applica- tion or compliance with the provisions of this agree- ment." At the time of Woolard's request, discipline had not even been threatened in the case of Gurley, no detri- mental action had been taken, and, hence, there certainly was no foundation for grieving a discharge or other dis- cipline. Also, there was no perceptible dispute subject to adjustment as between the parties. In such circumstances, the position taken by Reddick impressed me as perfectly rational and hardly inimical to the scope and intent of the dispute settlement machinery negotiated by the par- ties. Indeed, that this action in no way prejudiced the Union's access to the grievance procedure was evident from the testimony of Chief Steward Ronnie Jefferson, who accompanied Gurley to the front office when the latter was terminated. Jefferson acknowledged that in the course of that meeting he attempted to file a grievance with respect to the discharge, but Baird informed him that the Union was required to comply with the griev- ance procedure by initiating a grievance at step one. Nonetheless, for reasons unclear on the record, the Union elected to pursue the matter directly to the third step where the grievance was denied on grounds that it was not processed through the first two steps of the grievance procedure as required. See G.C. Exh. 15.25 In further support of the complaint, it is also alleged that Reddick precluded the filing of a grievance protest- ing a warning issued to Al Roberson, the president of Local 1204. It appears that Roberson, like Gurley, did not work scheduled overtime on Saturday, June 14.26 Reddick gave the warning to Roberson at his machine the following Monday, June 16, under conditions de- scribed by Roberson as follows:27 25 The discharge was ultimately carried to arbitration. The arbitrator upheld the Company's position that pursuant to art . IV of the contract the Gurley grievance was not arbitrable as it was not processed in ac- cordance with the requirements of art. II of the collective-bargaining agreement. In that view, I need not reach the question of whether defer- ral to the award is warranted under Spielberg Mfg. Co., 112 NLRB 1080 (1955). Disturbing, however, is the claim made by the General Counsel that that doctrine is inapposite because "the arbitrator expressly found it unnecessary to decide whether Woolard had attempted to file a first step grievance and made no findings as to whether Jefferson attempted to file a first step, or a second step grievance with Penrod." See General Coun- sel's posthearing Br. at 18 . This reference is misleading and totally inac- curate. The arbitrator made the very findings attested to through evi- dence parallel to that presented by the General Counsel's witnesses in this proceeding concerning the ineffectual nature of the first step griev- ance attempted to be filed by Woolard. Furthermore, the award specifi- cally concludes with respect to Jefferson that "no step 1 or step 2 griev- ance was ever filed." See R. Exh. 1, p. 9. Indeed , contrary to the factual assertion by the General Counsel that "the arbitrator did not find wheth- er Respondent had prohibited Woolard and Jefferson from filing these grievances," it is apparent on the face of the award that the arbitrator concluded that this was not the case. 26 See G.C. Exh. 17. 87 Both Roberson and Reddick manifested some confusion stemming from the fact that on successive Saturdays Roberson refused to work scheduled overtime . He received warnings for each incident . Roberson claims to have attempted to file a grievance with respect to both warn- ings and that Reddick only refused to accept as to one . Both Reddick and Roberson had considerable difficulty isolating their recollection to the particular warning in controversy. [Reddick] came up to me on Monday morning, during the day of Monday and asked me or told me that I had a written warning for not working four or five hours, and he asked me if I was going to sign it and I told him "no" and he said, "Well, do you want the steward present?" I said, "Yes." And so he went to the assembler and got my steward, which was Rickey Woolard; and Rickey Woolard came over, and when he got there, he said, "Are you going to sign this?" I said, "No." He said, "That's all I want to hear." I said, "Well, this is a grievance." I said, "Are you going to talk to him?" And Rickey said, "Right, this is a grievance and I want to talk to him." Reddick.pointed his fingers at my steward and said, "You go back to your work area" and Rickey went back to his work area and I went back to work. Woolard's version was not entirely consistent with that of Roberson. He related as follows: Q. What was said and by whom? A. Well, Matthew Reddick was telling Allen he was giving him a warning, a written warning for not coming to work that Saturday. And Allen told him, "consider this a first step of grievance." Q. What, if anything, was said -after that? A. And Matthew said that there was no need for a first step of grievance . He say, "Take it to the second step." The testimony of Roberson and Woolard takes on sig- nificance when considered in light of the fact that this grievance was rejected by Respondent at the third step on grounds that, like the Gurley discharge , it was "not processed through step 1 of the grievance procedure as required by Article 2, Section 4."28 Reddick denied that he had ever precluded the filing of a first step grievance and denied indicating to anyone that it was he who "made that decision whether an em- ployee had a grievance."29 Reddick specifically testified that there was never a first step grievance requested or filed in connection with the warning issued Roberson on June 16. As indicated above, neither Roberson nor Woolard were impressive witnesses. On the other hand, Reddick struck me as believable, and under the total circum- stances, his denial to the effect that he ever precluded anyone from filing a first step grievance seemed the more probable. Based on the above, it is concluded that 28 See R. Exh. 3. During the preceding week, Roberson was given a warning for failing to work all of his scheduled overtime on Saturday, June 9. Woolard and Roberson concede that Reddick was informed that a first step grievance was being submitted with respect to that, and that Reddick accepted the grievance and discussed it. See R. Exh. 2. 29 Reddick at one point testified that at the end of the conversation in which he delivered the written warning concerning Roberson's offense of June 14, Roberson indicated that the matter was to be "considered as a first step grievance." This apparent admission, however, was obviously the product of the same confusion concerning the two warnings labored under by Roberson and Woolard. Reddick in this instance is taken to have been commenting on the aftermath of Roberson 's June 9 refusal to work overtime. 802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD neither Roberson nor Woolard requested a grievance in connection with the warning issued on June 16. There being no other evidence that any representative of the Respondent refused to accept or process a properly ten- dered grievance, the General Counsel has failed to estab- lish by a preponderance of the evidence that the Re- spondent violated Section 8(a)(5) by unilaterally refusing to allow stewards to file grievances. 2. The withdrawal of recognition It will be recalled that on November 26, 1980, a decer- tification petition was filed in Case 11-RD-323 during the open period prior to expiration of the subsisting col- lective-bargaining agreement . Despite the pendency, in January 1981, the Union and Respondent participated in contract renewal negotiations on eight separate occa- sions. Later, between February 19 and 21, a majority of the employees formally declared that they no longer wished union representation. Respondent was presented with this evidence and on the strength that it informed the Union by letter dated February 23, 1981, that recog- nition would be withdrawn. In examining the contention that Respondent's termi- nation of the bargaining relationship violated Section 8(a)(5) and (1) of the Act, it is emphasized that there is no claim or evidence in this proceeding that the defec- tion by a majority of employees was tainted directly by employer solicitation or participation in the deauthoriza- tion process, or that the evidence of employee defection lacked authenticity.30 Beyond that, in such a context, the controlling legal principles have been articulated suc- cinctly in Terrell Machine Co., 173 NLRB 1480, 1480- 1481 (1969): It is well settled that a certified union, upon expi- ration of the first year following its certification, enjoys a rebuttable presumption that its majority representative status continues. This presumption is designed to promote stability in collective-bargain- ing relationships, without impairing the free choice of employees. Accordingly, once the presumption is shown to be operative, prima facie case is estab- lished that an employer is obligated to bargain and that its refusal to do so would be unlawful. The prima facie case may be rebutted if the employer af- firmatively establishes either (1) that at the time of the refusal the union in fact no longer enjoyed ma- jority representative status; or (2) that the employ- er's refusal was predicated on a good-faith and rea- 90 The General Counsel seeks to negate the plain import of the major- ity's action by certain evidence that on several occasions prior to Febru- ary 19, 1981, employees in substantial numbers openly endorsed positions pressed by the Union. With a single possible exception, these expressions were ambiguous as more indicative of a shared concern in grievances promoted by the Union than an expression of continued desire for repre- sentation or preference for collective bargaining Indeed , whether intend- ed or not, the paraphernalia used to symbolize support of these causes downplayed the Union's own involvement and aught well have been de- liberately designed to reach the broadcast base possible by reflecting neu- trality on the question of union representation See G C . Exhs 12(a), 13(b), and 14. In any event, the earlier manifestations in no way impaired the unambiguous determination made by a majority of the employees be- gmnmg on February 19, 1981 sonably grounded doubt of the union's continued majority status. As to the second of these, i.e., "good faith doubt," two prerequisities for sustaining the defense are that the asserted doubt must be based on objective considerations and it must not have been advanced for the purpose of gaining time which to undermine the union. This second point means, in effect, the assertion of doubt must be raised "in a context free of unfair labor prac- tices." With the foregoing in mind, it is noted that on the above findings made, the withdrawal of recognition fol- lowed a single solitary unfair labor practice founded on a wage increase granted by the Respondent, without union assent. The violation in question related to a 20-cent ad- justment conferred on a single employee, which oc- curred 8 months before the loss of majority, and while limited to an isolated change in the contract, did in fact follow notification and consultation with the Union over an extended period. Respondent's offense in that regard was more technical than egregious in its unlawful ele- ments. Thus, through my interpretation of the collective- bargaining agreement, the consultation that took place did not fulfill Respondent's statutory obligation in that a change in substantive contract limitations was involved and nothing short of union assent to the merit increase would satisfy the rigid requirements of Section 8(d) in such a context. On balance, the question presented is whether a viola- tion of such limited magnitude should override the un- ambiguous choice registered by employees in February 1981. In this connection, it is noted that, under the prece- dent, not every unfair labor practice, which precedes re- nunciation of a union, will result in statutory resurrection of a bargaining relationship. Thus, where there is no ra- tional basis for assuming that a causal relationship exists between an illegal act and a union's demise , Board reme- dies will not be invoked to perpetuate an unwanted bar- gaining relationship. 31 The analysis is a sensitive one, for under established policy the circumstances under which employees might reject an established representative are narrowly circumscribed, and a faultry determination might well imperil the exercise of employee choice for some time to come. For under Board policy, repudiation by employees of a union is deemed lacking in legal effect for a reasonable period of time following the issuance of a bargaining order. Indeed, the restraining impact that might be experienced by an unwilling majority through combined interaction of such an order and contract bar policy was previously reviewed by me in Deblin Mfg. Corp., 208 NLRB 392, 401 (1974), in which it was stated as follows: To . . . hold that Respondent was not free to assert a good faith doubt, would require an affirmative bargaining order, calculated to assure additional bargaining and ultimate agreement on a new con- tract which could bar an election for its duration. Recognizing the effect of such relief, and its impact s' See Colonial Manor Nursing Center, 188 NLRB 861 (1971), GAF Corp, 195 NLRB 169 (1972); Freeman Co., 194 NLRB 595, 598 (1971) ATWOOD & MORRILL CO. 803 upon employee choice, the Board has sought to avoid the issuance of such an order, if based strictly on technical grounds, and where such relief would result in continued imposition of a bargaining repre- sentative on an unwilling majority, whose defection in no sense related to the prior unfair labor practice. Therefore, the Board, over the years, has declined to regard the rule precluding employers from assert- ing a good-faith doubt in a context of unfair labor practices as "an absolute prohibition." This is so even where the prior unfair labor practice is unre- medied at the time that recognition is withdrawn. For reasons indicated above, I am convinced that the wage increase granted to Kay Perry in June 1980 neither caused nor influenced the repudiation fo the Union some 8 months later by 60 percent of the employees in the ap- propriate collective-bargaining unit.32 Accordingly, it is concluded that Respondent's withdrawal of recognition cannot be faulted on the basis of any conduct on its part, which occurred prior to February 19, 1981. In the alternative the General Counsel contends that even if loss of majority was not coerced, inasmuch as a decertification petition was pending, Respondent was not privileged to withdraw recognition prior to resolution of the question concerning representation. This theory is founded on the notion that in such circumstances the em- ployer is under a strict duty of neutrality that would be violated on either a withdrawal of recognition or changes in working conditions, a view that defies long- standing Board policy to the effect that employers are free to withdraw recognition when confronted with clear evidence that the statutory representative has lost its ma- jority. Celanese Corp., 95 NLRB 664, 672-673 (1951). Nonetheless, unfortunate language gleaned by the Gener- al Counsel from Turbodyne Corp., 226 NLRB 522, 525 (1976), appears to support just such an interpretation. That case involved an employer's obligation to "remain neutral" when an incumbent representative is rivaled by a competing labor organization. See Shea Chemical Corp., 121 NLRB 1027 (1958); see also Midwest Piping Co., 63 NLRB 1060 (1945). In Turbodyne, the incumbent representative was challenged by two rival unions, each of which had filed separate election petitions. Prior to expiration of the subsisting collective-bargaining agree- ment, an election was conducted. The incumbent repre- sentative obtained only 26 of the 204 votes cast in the election, but filed objections thereto, which became the 22 The General Counsel correctly observes that in NLRB V. Nu-South- ern Dyeing & Finishing, 444 F.2d 11, 15-16 (4th Cir. 1971), it was similar context that "an employer may avoid a bargaining order by showing that the unfair labor practices did not significantly contribute to such a loss of majority or to the factors upon which a doubt of such majority is based." Although such a burden is properly reposed in the Employer, I cannot agree with the General Counsel that the duty may only be met by subjec- tive evidence. On the contrary, consistent with the traditional approach to factfinding, the absence of nexus might be inferred on the inherent tendency of the proven facts in the light of all the surrounding circum- stances. Indeed, practical limitations on the parties in litigation make it imperative that, in a case such as this, if a respondent has denied any and all unlawful conduct prior to the withdrawal of recognition, that the latter not be put to the impossible task of presenting subjective evidence that the specifically denied illegalities did not influence employee defec- tions. subject of a stipulation by all parties calling for a rerun election. Before the rerun election could be held, the col- lective-bargaining agreement in question expired. Imme- diately thereafter, the employer withdrew recognition and effected certain unilateral changes in working condi- tions. The Board affirmed the administrative law judge's findings that the employer thereby violated Section 8(a)(5) and (1) of the Act. However, unlike the instant case, the employer's assertion of a doubt of majority was based on questionable evidence; namely, the incumbent's poor showing in the abortive first election. In connection therewith, the administrative law judge in Turbodyne stated: "I would have extreme difficulty in concluding that [the employer] had met its burden of overcoming the presumption of majority status possessed by the con- tracting union." 226 NLRB at 525. Although the result in Turbodyne would be reconcilable with Celanese, supra, on that ground the administrative law judge went fur- ther. Thus, the General Counsel points to the conclusion by the administrative law judge in Turbodyne, held that: .. . the question of good-faith doubt of majority status of the incumbent union by the respondent ... is essentially beside the point [inasmuch as] [t]he legal obligation of an employer, irrespective of doubt of majority status, is to await resolution of the QCR by the National Labor Relations Board or other appropriate agency, before instituting any changes in the working conditions of the employ- ees.33 This reference amounted to an outright nullification of the legal efficacy of good-faith doubt. Indeed deferral to the election procedures of the Board is envisioned as ac- tually cementing an unwanted relationship, beyond what would have been the case had those challenging the in- cumbent representative simply resorted to self-help. Yet, it is a view that was not supported by a citation of au- thority, accompanied by rationale, nor supportable under any line of reasoning familiar to me. Most significant, however, it paved the way for a remedy that heightened the opportunity of a minority union to perpetuate its ex- clusive statutory status. Thus, although the presumption of continuing majority was previously viewed as irrebut- table during the certification year, and during the term of a subsisting collective-bargaining agreement, Turbo- dyne, without explication or reference to the Celanese doctrine, would also insulate the incumbent's representa- tive base from challenge during periods when a question concerning representation was pending. The anomaly in this view is highlighted by the General Counsel's conces- sion that the employer would have been free to with- 22 This language reappeared as obiter dictum in Mertyn's, 240 NLRB 54 (1979), in a single union situation, and in the context of disputed elec- tion on a decertification petition, the administrative law judge stated 240 NLRB at 60: The legal obligation of an employer, in these circumstances, is to await resolution by the Board of the question concerning representa- tion before instituting any changes in the working conditions of unit employees. Any doubt as to the Union's majority status is irrelevant, and the presumption of majority flowing from the recently expired contract continues until such resolution. Turbodyne Corporation, Gas Turbine Division, 226 NLRB 522 (1976). 804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD draw recognition had there been no decertification peti- tion. Just how this factor ought freeze an incumbent's status as against clear evidence of a loss of majority defies explanation. Indeed, to uphold the General Coun- sel's view is to penalize the unwilling majority because some within their ranks have exercised the only option available to them independently under this Act to elimi- nate an unwanted representative , a result that would tend to discourage employees from invoking the election pro- cedures of the National Labor Relations Board.34 This view stands starkly in contrast with the caution that should be exercised before any new policies are adopted that further impede employees from taking steps to elimi- nate an unwanted representative. Their rights in this re- spect have already been curtailed significantly by desira- ble Board policies designed to foster stability in existing bargaining relationships, including certification year, con- tract bar, and policies precluding an election in the face of unremedied unfair labor practices.35 The opportunity for employee choice, having been so narrowed, ought be honored with immediacy and reason where these re- straints do not obtain. Here, the decertification petition was dismissed by the Regional Director soley on the ground that "[as] there is an outstanding complaint .. . which allege[s] that the employer has violated Section 8(a)(5) . . . there can be no QCR." It surely would be a paradox of circuitry, if, as the General Counsel urges, an unlawful refusal to bargain were to be founded soley on a QCR, that was ultimately negated by that very unfair labor practice. Fortunately, however, Turbodyne appears to have been corrected by two recent decisions reaffirming Board policy that an employer is free to withdraw recognition if he has actual proof or a reasonable doubt that a labor organization continues to represent a majority. Those cases confirm that it is the question concerning represen- tation, rather than the loss of majority, that is "beside the point." Thus, RCA Del Caribe, 262 NLRB 963 (1982), as was true of Turbodyne, supra, involved an application of Shea Chemical, supra, and the employer's strict duty of neu- trality in circumstances where a rival labor organization files a representation petition seeking to replace an in- cumbent representative. There, in a major reversal of policy, a Board majority held that in such circumstances an employer may not rely on the pendency of an elec- tion petition as a defense to a withdrawal of recognition but reains an obligation to bargain, even to the point of negotiating a new contract, pending resolution of the question concerning representation. The majority, in di- 94 Practical unsoundness in the General Counsel 's theory is evident in the fact that action on the QCR raised by the RD petition filed on No- vember 26, 1980, did not materialize until dismissed by the Regional Di- rector on August 23, 1982 . Apparently, it is the General Counsel's view that during this entire period Respondent was obligated to continue rec- ognition of the Union, and could not, without bargaining, alter conditions of work that had been set more than 2-1/2 years earlier when the initial collective-bargaining agreement became effective. ss Another impediment frequently encountered is the rule requiring elections to be conducted in a voting group coextensive with the historic bargaining unit, a policy requiring disenchanted employees in multiplant and multiemployer units to obtain the required showing of interest from diverse and often unfamiliar worksites minishing the impact of a QCR on the existing bargain- ing relationship was careful to point out that the incum- bent's representative status will not be preserved in the eyes of the law where, as here , clear evidence exists as to its loss of majority. In this respect, 262 NLRB 963, fn. 13, it was stated: Of course this rule will not preclude an employer from withdrawing recognition in good faith based on other objective considerations. See, e.g., United States Gypsum Company, 157 NLRB 652 (1966), Laystrom Manufacturing Co., 151 NLRB 1482 (1965): Celanese Corporation of America, 95 NLRB 664 (1951). This sentiment was carried forth by Dresser Industries, 264 NLRB 1088 (1982), in which it was held that "the filing of a decertification petition, standing alone, does not provide a reasonable ground for an employer to doubt the majority status of a union." But once more, in holding that an employer could not act on so limited a basis, the Board specifically preserved employee choice by stating, 264 NLRB 1088 fn. 7, the following: The rule we announce today in no way erodes the principle that an employer is privileged to with- draw from bargaining if, on the basis of objective evidence, it has good-faith doubt as to the union's continued majority status. Thus, for example, if an employer is presented with a valid decertification petition supported by a majority of the unit employ- ees, it may be privileged to withdraw from bargain- ing. It is concluded in the face of these more recent decla- rations that the Board has in effect repudiated the state- ment in Turbodyne to the effect that a good-faith doubt of majority is "beside the point." Accordingly, the view expoused by the General Counsel in reliance thereon is deemed lacking in merit. Valid and substantial evidence having presented between February 19 and 21 that the Union no longer represented a majority of the employ- ees, Respondent was free in reliance thereon to with- draw recognition from the Union. 3. The March 10 grant of wage increases and other benefits Consistent with the complaint, the General Counsel contends that on March 10, 1981, Respondent violated Section 8(a)(3) and (1) of the Act by granting a 10.5-per- cent-wage increase, an extra "floating" holiday, and a $10 increase in compensation under the sickness and ac- cident policy.36 Under established Board policy, benefits conferred by an employer during the pendency of a question concerning representation are presumed unlaw- 96 Despite extensive amendments to the complaint made at the hearing, no effort was made by the General Counsel to place in issue appropriate- ly grants of benefit that occurred substantially after March 10, 1981, in- cluding a second general wage increase on February 1, 1982, the institu- tion of a summer hours policy in 1982, and a change in the payday during the summer of 1982 These matters are deemed outside the pur- view of this proceeding ATWOOD & MORRILL CO. 805 ful as calculated to influence employees in the exercise of their choice of a bargaining representative. Thus, the burden of disassociating any conferral of benefits from the preelection campaign is on the employer.37 With this in mind, it is noted first that no proof was offered by Re- spondent to divorce from union considerations, the addi- tional holiday and enhanced sickness coverage. On the other hand, such an effort was made in connection with the wage increase and a close question is presented in that regard. However, as this was the first general wage increase received by the employees since January 28, 1980, when the recently expired contract became effec- tive, its timing would not, standing alone , support illegal- ity. Yet the increase was not shown to be proportionate to but seemed excessive when considered in the light of past practice. Here too, the onus is on the employer to demonstrate either that the pattern of increases given in the past, or that any such increment was arrived at on considerations other than a desire to influence the out- come of an election. Respondent claims that its decision to grant the 10.5- percent increase was justified by legitimate business con- siderations.38 To evaluate the claim of illegality, it is im- portant to note that the highest wage offer made by the Respondent to the Union in contract renewal negotia- tions was 6.5 percent. Respondent sought to explain this differential through Tyree Derrick, corporate director of labor relations for Emerson Electric Company, and Russ Adams, director of administration for Xomox Corpora- tion.39 According to their testimony, responsibility for defining terms and conditions of employees of organized and unorganized plants is separately allocated within the enterprise. Thus, Derrick is responsible for organized fa- cilities, and Adams handles nonunion operations. On analysis, the testimony of Derrick and Adams seems to suggest an overarching corporate policy in which the amount of increases to be conferred at various plants depended on organization, and as implemented, in effect amounted to an unlawful reward to employees for rejection of the Union. Thus, Tyree Derrick described himself as the principal spokesman for Respondent during the 1981 negotiations. According to his credible testimony, when the Company made its final offer, several economic and noneconomic areas stood unresolved with the parties far apart on wages and certain other benefits. According to his esti- mation, the so-called last offer made by the Union in- cluded demands calling for 45- to 50-percent increases over the 3-year duration sought by the Union, with the increases in wages amounting to 19 percent in the first year, 15 percent in the second, and 13 percent in the third. This contrasted sharply with the "best and final" offer presented to the Union by the Company, which in- cluded a wage offer at 6.5 percent the first year, in excess of 6 percent in the second year, and in excess 5.5 Sr See Arrow Elastic Corp., 230 NLRB 111 -113 (1977). 38 Contrary to an assertion by Respondent, it is noted that the fact that recognition was lawfully withdrawn on February 23, did not afford it "an absolute right" thereafter to impede the election process by confer- ring benefits. ae Atwood & Morrill Co., Inc. is a division of Xomox Corporation, which in turn is a wholly owned subsidiary of Emerson Electric Co. percent in the third year. It was in this posture that ne- gotiations were adjourned indefinitely on January 28. By way of further clarification, it was the sense of Derrick's testimony that the 6.5 percent was not the limit as to how far the Company would go in negotiations. In- stead, this position was taken in response to the bargain- ing posture of the Union, which Derrick viewed as "un- reasonable." He asserted that though there was addition- al room for movement on the part of the Company at that time, its own position would depend on several fac- tors, central to which would be the flexibility that the Union was able to manifest. Other factors, according to Derrick, which influenced the 6.5-percent proposal, in- cluding business conditions40 and the weak bargaining posture of the Union. Most significant, however, was the observation by Derrick that the corporation had been settling contracts in that year in the range of 8 percent and 7 percent, and that in his own estimation he could not be certain that any settlement with the Union at the Washington plant would be in the 8-percent range. Der- rick's testimony plainly suggests that 8 percent would be the ceiling on any wage settlement, a conclusion that de- rives collateral support from his own expressed goal that "a modest contract should be achieved." Derrick related that he did not participate in the deci- sion to grant the employees a 10.5-wage increase some 2 weeks after recognition was withdrawn, as a different "channel of approval" controlled working conditions in unorganized plants. Russell Adams confirmed that once he was informed that the Union no longer represented employees at the Washington plant, determination of their compensation fell within the jurisdiction of his office. Adams was mindful of the 6.5-percent offer made to the Union on January 28, but he denied involvement in the formulation of that offer. As for the 10.5-percent increase, Adams claims that it was founded on a survey of wages paid by several manufacturing facilities in the area and economic conditions in the "market" in which the plant is located. Like Derrick, he acknowledged that 1980-1981 had been a particularly difficult year for the Atwood & Morrill plants in Washington, North Caroli- na, and Salem, Massachusetts, and that an 8-percent in- crease was viewed as appropriate with respect to both.41 However, based on the survey, it was indicated that at the Washington plant, the scale was about $1 behind comparable jobs in the area. Adams therefore adopted the view that to maintain skill levels, a higher increase than 8 percent was necessary. According to Adams, ini- tially his superiors at Xomox and Emerson did not agree, but ultimately they were persuaded based on savings to be realized from the elimination of grievance fees, legal fees, and arbitration that could be added to the 8-percent figure to achieve parity in Washington with what others in the labor market were paying for comparable work. In the circumstances, I cannot agree with the General Counsel and Charging Party that the increase afforded in 40 Derrick claims to have "consulted" with management at the plant, divisional, and corporate levels concerning "the condition of the business at that time." 41 Adams testified that in 1982 the increase received at both Washing- ton and Salem plants of Atwood & Morrill amounted to 7.4 percent. 806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD March 1981 is to be deemed unlawful because it exceed- ed that incorporated in the last company offer in the aborted January negotiations. There was no allegation that the breakdown in those negotiations was attributed to bad faith or other improper motivations that could be imputed to management. Furthermore, I credit the testi- mony of Derrick that at the time the negotiations were suspended there was room for movement on the Compa- ny's part and that from its point of view further ex- changes were to be made, with the onus on the Union to show some movement .42 Such a bargaining strategem is not unique and to assume that it placed a ceiling on what the Company could later provide would rest on faulty assumption that management had exhausted its conces- sions with respect to wages as of January 28 and should be penalized because it held back, waiting for the Union to manifest flexibility. Equally lacking in merit is the General Counsel's proposal that because the Union was not apprised that the Employer was willing to make sub- stantial further concessions, one should assume that the Employer was not willing to do so. This assumption ig- nores the fact that as of January 28 negotiations were not viewed by Derrick as having concluded, but had reached a point where the parties were so far apart that sound negotiating tactic was taken as demanding that manage- ment not reveal its hand until concession was made by the other side. This does not mean, however, that I am willing to accept the balance of Respondent's evidence as furnish- ing a credible explanation for this increase granted on March 10, 1981, only 2 weeks after the Company had withdrawn recognition. First, I find it difficult to believe that in the interim a new wage policy was devised by separate labor relations functionaries within the Emerson Enterprise and that there was no serious consultation as to what wage strategem the Company would adopt at Washington between Adams, who ostensibly was to fash- ion a new wage policy, and Derrick, who had just been released from collective bargaining covering that very plant. In any event, that union activity was the decisive factor in defining the amount of the increase is admitted in Respondent's own evidence. Management's concern for competitive rates, a factor that combined humane and practical elements, while of empirical concern to Re- spondent on March 10, following the recent repudiation of the Union, went unmentioned by Derrick in his de- scription of the considerations entering his formulation of wage offers to be and actually made to the Union. For Respondent, there is no escaping the disparate consider- ations relied on by Adams and Derrick. Evident from these differences was the fact that the focus at Washing- ton was one of greater generosity once that plant had gone nonunion. The net result was a reward founded on that very fact. Thus, the March increase, being of un- precedented size, coming as it did only 2 weeks after rec- ognition was withdrawn, and having been granted to a bargaining unit still bearing the wounds of substantial layoffs, conveyed graphically to employees that their 42 There is no allegation that Respondent's failure to offer an increase in excess of 6 5 percent during the January negotiation was violative of Sec 8(a)(3) and (1) of the Act "lot" would be better cast without union representation. During the pendency of a question concerning represen- tation, employers are free to campaign on the basis of ex- isting benefits, but management may not on a discretion- ary basis make upward revisions in established patterns in conferring additional benefits. The latter is precisely what occurred here, and the identity of those who might have wielded corporate power to that end is entirely ir- relevant.43 Based on the foregoing, it is concluded that the 10.5- percent increase conferred on employees on March 10 was not shown by Respondent to be justified by consid- erations other than union activity and, accordingly, Re- spondent thereby violated Section 8(a)(1) of the Act. Furthermore, as Respondent has failed to adduce proof concerning the propriety of its March 10 grant of an ad- ditional holiday and broadened sickness and accident benefits,44 I find that these changes, effected during the pendency of the question concerning representation, also were calculated to influence employee choice in viola- tion of Section 8(a)(1) of the Act.45 49 Serious question exists whether savings realized by an employer through elimination of a union represents a suitable justification for a preelection wage increase In this regard , the Board has held that an em- ployer may not legitimately campaign against representation by propa- gandizing that without a union more money would be available to spend on employees See Dow Chemical Co, 250 NLRB 748, 750 (1980), enfd. denied 660 F.2d 637, 646-647 (5th Cir 1981). 44 The wage increase and other benefits conferred on March 10, 1981, on August 13, 1982, by amendment to the consolidated complaint, were added to par. 9 as an alleged violation of Sec. 8(aX3) and (1) of the Act. At the same time, Respondent's action with respect to canteen privileges remained confined to par 16 of the complaint and for purposes of this proceeding was alleged coley as unilateral action violative of Sec. 8(a)(5) and (1) of the Act Accordingly, as no notice was afforded to Respond- ent that its motive was in any way placed in issue in connection with the canteen issue, it understandably furnished no justification for that change. Accordingly, any such charge was neither alleged nor fully litigated, and hence is not the subject of a finding here as The complaint alleges, and the General Counsel and Charging Party insist, that the wage increases in question violated Sec. 8(a)(3) of the Act As indicated at the hearing by me, that section of the Act regulates con- duct detrimental, rather than beneficial to employee interests In this re- spect, cases such as Service Garage, 247 NLRB 943 (1980), and Associated Milk Producers, 255 NLRB 750 (1981 ), are distinguishable , as the conduct complained of in each related to the withholding of a schedule increase, action clearly detrimental in nature. Also off base is the notion advanced by the General Counsel that an 8(a)(3) violation could influence the scope or appropriateness of a remedial order, or the validity of a possible election. This remedy is controlled by the nature of the unlawful conduct and its impact on protected rights, rather than technical compartmentali- zation or a process in which conduct is labeled as a violation of one sec- tion of the Act or another See Dravo Line Co., 234 NLRB 213, 214 fn 1 (1978) Also noteworthy in this connection is the assertion in the Charg- ing Party's posthearing brief that the grant of benefits on March 10, 1981, did constitute "adverse action" and hence violated Sec 8(aX3) as charged in the complaint It is argued in this respect that Respondent maintained "a carrot and stick" approach, offering the Union less in the contract re- newal negotiations, and then after repudiation of the Union rewarding employees with the "carrot" a greater increase The Charging Party sub- mitted that this is "more than [an] 8(a)(1) violation." However, even under this view, it was in January 1981, not March 1981, that the "stick" was ministered Furthermore, although the former might well have been challenged in an amendment to the charge in Case 11-CA-9787 filed on February 3, 1982 , the complaint, though subsequently amended, made no such reference, but was limited to a challenge to the "carrot" conferred on March 10, 1981 In short, control over the scope of the complaint is the exclusive prerogative of the General Counsel under well-established Board authority See Winn-Dixie Stores, 224 NLRB 1418, 1420-1421 (1976) ATWOOD & MORRILL CO. 807 IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, it shall be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found above that as of February 23, 1981, the Union no longer represented a majority of the employ- ees, and on that date Respondent withdrew recognition, lawfully, on considerations furnishing a reasonable basis not only for belief that the Union had lost its majority, but establishing that fact . I have also found that Re- spondent thereafter violated Section 8(a)(1) of the Act by on March 10, 1981 , granting a wage increases of un- precedented size. It is in this light that I consider the General Counsel's further contention that the bargaining relationship be resurrected on the basis of a remedial bar- gaining order consistent with the dictates of NLRB v. Gissel Mfg. Co., supra. In this respect, the General Coun- sel relies on cases such as Michigan Products, 236 NLRB 1143 (1978), to the effect showing that the Union contin- ued to represent a majority . In Michigan Products, supra, the incumbent union was rejected in a Board -conducted election, but the loss of majority was viewed as a by- product of the employer's unfair labor practices that "had as its objective the elimination of the Union as the collective-bargaining representative." Hence, the election was a nullity and the incumbent union "enjoyed the pre- sumption of continued majority status." No such conclu- sion is warranted on the instant record . The key element distinguishing the instant case from Michigan Products, supra, and other authority cited by the General Coun- sel46 is the fact that here the proof demonstrates an actual loss of majority,47 which, while not induced by unlawful conduct, occurred prior to any serious unfair labor practice . The presumption of continuing majority was rebutted with finality, and having taken full account of the unlawful grant of benefits on March 10, 1981, the conduct is viewed as lacking the quality that would 46 Cf. Dow Chemical Co., supra. Grede Foundries, 224 NLRB 1312, 1316 (1976); Litton Business Systems, 205 NLRB 532 (1973), enfd. denied 497 F.2d 262 (6th Cir. 1974). In the above cases , the presumption of con- tinuing majority remained viable either because unrebutted or because loss of majority was attributable to the employer's unfair labor practices. 4 4 Cf. Litton Business Systems, supra. render dispensable reestablishment of the Union's majori- ty, either factually or by operation of law, as a predicate to a remedial bargaining order. Accordingly, as the Union had not reestablished its majority status at the time of the independent 8(a)(1) violation founded on the wage increase of March 10, 1981, and as that violation, though serious, would not be considered as the suffi- ciently "pervasive" or "egregious" as to warrant a mi- nority bargaining order,48 no basis exists for an affirma- tive order for reestablishing the relationship repudiated by employees between February 19 and 21, 1981. In the total circumstances, not only do I dismiss the 8(a)(5) allegation predicated on the withdrawal of recog- nition, but like action is taken with respect to allegations in the complaint that Respondent violated Section 8(a)(5) and (1) of the Act after February 23, 1981, by unilateral- ly increasing wages and benefits of employees about March 10, 1981, by, on March 20, 1981, refusing to ne- gotiate with the Union concerning health and safety mat- ters, and by, on May 1, 1981, unilaterally restoring the canteen rights of its employees. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Unions are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(5) and (1) of the Act by, on June 17, 1980, during the term of a collec- tive-bargaining agreement, granting a 20-cent-wage in- crease to an employer without the assent of the Union. 4. Respondent independently violated Section 8(a)(1) of the Act by, on March 10, 1981, granting a wage in- crease to employees under conditions calculated to induce them to refrain from designating the Union as their representative for collective bargaining. 5. The unfair labor practices found in paragraphs 3 and 4 above constitute unfair labor practices having an effect on commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 48 Cf. United Dairy Farmers Cooperative Assn., 257 NLRB 772 (1981), on remand from 663 F.2d 1054 (3d Cir. 1980).