Louisiana-Pacific Corp.

National Labor Relations Board - Board Decisions

Jul 13, 1990

299 N.L.R.B. 16 (N.L.R.B. 1990)

16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Louisiana-Pacific Corporation and United Brother-
hood of Carpenters, Mid-Atlantic Industrial
Council, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO. Cases 11-CA-
12998 and 11-CA-13152
July 13, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 28, 1989, Administrative Law
Judge Walter H Maloney issued the attached deci-
sion The Respondent and the General Counsel
filed exceptions and supporting bnefs The Charg-
ing Party filed cross-exceptions and a supporting
brief The Respondent filed answering briefs both
to the General Counsel's exceptions and to the
Charging Party's cross-exceptions
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 and to adopt the recommended
Order as modified
The judge found that the Respondent violated
Section 8(a)(1) of the Act when its supervisors told
employees that they would not receive a raise and
that millwrights and electricians would not be up-
graded because of the Union and when the plant
manager told an employee to remove his cap bear-
ing union insignia The judge also found that the
Respondent violated Section 8(a)(3) and (1) of the
Act by issuing a series of warning notices to em-
ployees Richard Vautnn and Larry McConnell and
subsequently discharging Vautnn and suspending
McConnell for 3 days 2
In addition, the judge found that the Respondent
violated Section 8(a)(5) and (1) of the Act when it
failed to notify and bargain with the Union con-
cerning the withholding of the 1988 annual wage
increase We agree 3 However, the judge declined
'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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The Respondent did not except to these 8(a)(3) and (1) violations, to
the 8(a)(1) violation involving union insignia, or to the additional 8(a)(1)
violation based on the Respondent's telling employees they would be
closely watched because of their union activities
'The Respondent's assertion that It promised the Dungannon employ-
ees an "evaluation" only is without merit The judge correctly found that
the record shows that the Respondent promised the employees an annual
to find that the Respondent also had violated Sec-
tion 8(a)(3) by discnminatonly withholding the
1988 wage increase holding that the General Coun-
sel had not prosecuted the case on this theory The
General Counsel excepts to this finding We agree
with the General Counsel's arguments and find that
the Respondent's withholding of the 1988 annual
wage increase also violated Section 8(a)(3) of the
Act Moreover, the judge incorrectly concluded
that an affirmative remedy requiring the Respond-
ent to grant the wage increase would be inappro-
priate Both the 8(a)(5) and (3) violations support a
make-whole remedy and we shall so order 4
The Respondent opened its Dungannon, Virginia
waferboard plant in May 1986 The following
August, employees received an across-the-board in-
crease in wages of 30 cents an hour At this time,
the operations manager for the Respondent's north-
ern division, Dan Dilworth, and Plant Managers
Pete Chase and Steve Harper discussed the wage
increase with employees, advising them that
"[they] would be evaluated every year about that
time and should get a raise every year at that
time" In addition, Dilworth told employees that
the plant was not yet ready for the Company's in-
centive program with its monthly production
bonus but that this program would be extended to
Dungannon at a later date
In May 1987, the Respondent instituted the in-
centive program at Dungannon Under the pro-
gram, the employees were paid a monthly produc-
tion bonus that vaned according to their produc-
tivity beyond the plant's baseline minimal accepts-
across-the-board Increase in base wages The consensus testimony of em-
ployees Larry McConnell, Rich Finch, Richard Vautnn, Donnie Salyers,
Greg Robinson, Randy Bush, Terry Starnes, and Pam Stidham was that
the Respondent told them they would get an annual base-rate wage In-
crease Although McConnell, Salyers, and Robinson also used the word
"evaluation" and Vautnn the word "review," they understood that they
would get a base-rate wage increase annually We therefore find it unnec-
essary to rely on the judge's comments that "in common mdustnal rela-
tions parlance, evaluation means pay increase and the Respondent's em-
ployees were entitled to assume as much" (ALJD sec C,2, par 12)
We note also that the Respondent's reliance on Great Atlantic dl Pacific
Tea Co, 166 NLRB 27 (1967), and similar cases involving preelection
conduct is misplaced An employer acts at its peril in making changes in
terms and conditions of employment during the penod when its objec-
tions to an election are pending Where, as here, the final determination
on the objections results in the certification of the union, the employer's
unilateral changes during that period violate Sec 8(a)(5) and (1) of the
Act See Mike O'Connor Chevrolet-Buick-GMC Co, 209 NLRB 701, 703,
and cases cited in fn 11 (1974)
4 We disagree with the judge's observation that he was precluded from
recommending an affirmative remedy that would require the Respondent
to grant an Increase in wages consistent with its 1987 increases (ALJD
sec III, par 2) To remedy the 8(a)(5), (3), and (1) violations, we shall
order the Respondent to make employees whole by payment of the
amounts of wage Increases they have been deprived of by reason of the
Respondent's unlawful conduct, as prescribed in Ogle Protection Service,
183 NLRB 682 (1970), plus interest New Horizons for the Retarded, 283
NLRB 1173 (1987) See Southeastern Michigan Gas Co, 198 NLRB 1221
(1972), enfd 485 F 2d 1239 (6th Cu. 1973)
299 NLRB No 5
LOUISIANA-PACIFIC CORP 17
ble production of waferboard The first bonus was
paid in July, and the payments continued in each
succeeding month of 1987
At the end of the summer of 1987, the Dungan-
non employees began mquinng about the across-
the-board wage increase Dilworth, Chase, and
Plant Manager Dan Hemore assured employees
that the raise would be forthcoming, but that it
would be late In September 1987, Chase an-
nounced the raise to employees-25 cents for pro-
duction employees and 35 cents for utility employ-
ees, to take effect on the first of October Chase
also told employees "from now on [they
were] going to start being eligible in October for
our annual raises" Dilworth assured employees
that "[they] would be getting one [raise] around
that time from every year there on" Dilworth also
spoke to the employees about the introduction of a
new flaker machine at the plant that was expected
to mcrease production, and announced that "the
rate for the production bonus would be adjusted
accordingly" Chase and Dilworth told the em-
ployees that the ceiling on the monthly production
bonus was a dollar 5
At the end of the summer of 1987, more than a
year before the flaker's installation, the Union
began its organizing campaign among the Respond-
ent's employees On November 19, 1987, the Union
filed a representation petition It won an election
held on February 3 and 4, 1988, by approximately
a 2-to-1 margin The Respondent filed objections to
the election The Board found them to be without
merit and certified the Union on March 24, 1989
The judge found that in January 1988 Dilworth
told employees at one of the lunchroom meetings
conducted during the organizing campaign that, if
the employees brought the Union in, he would not
even talk to them about the pay raise regularly
scheduled for October 6 The judge further found
'The Respondent's Production Incentive Program states
The baselines detailed in this plan shall remain fixed except in cases
where a capital expenditure made by the company of the value of
$10,000 or more, that increases or potentially Increases the minimal
acceptable average production per shift In these cases, the baselines
of the incentive program shall be Increased by 80% of the increase,
or potential increase in production
The Respondent's attorney testified at the hearing that the flaker repre-
sented an Investment of $2 million for the Respondent It was Installed in
the fall of 1988 Thereafter the incentive payments ranged from slightly
less than SI to SI 99 per hour
We note the judge inadvertently dated the new flaker's Impact on in-
centive payments as first occurring in September 1989 rather than in Sep-
tember 1988
We note that, at one point in his decision, the judge correctly identi-
fied Dilworth as making this statement, but later in his decision incorrect-
ly ascribed the statement to Chase The General Counsel did not allege
that this statement was an independent violation of Sec 8(a)(1) because it
did not occur within the time limits of Sec 10(b) of the Act
that Supervisors Brad Dodge and Tom Moore told
employees Larry McConnell and Richard Vautnn
sometime in July or August 1988 that Dungannon
employees would not get their raise because of the
Union The employees did not get a raise in base
wages nor did the Respondent adjust the baseline
of the incentive program
The Respondent offered the testimony of Oper-
ations Manager Dilworth to explain the Respond-
ent's failure to give the base-rate wage increase
Dilworth testified that he alone is responsible for
the annual evaluation of the Dungannon plant, the
Respondent's only unionized plant He stated that
he had nine waferboard plants in his division and
that he reviews each plant on its own merits once a
year In accomplishing that review, Dilworth ex-
plained, he looks at the economics of the area,
comparable industries in the area, and the incentive
program Dilworth acknowledged that he some-
times employs a combination of both the mcentive
program and an across-the-board wage increase
But, he stated that some plants have gone more
than 1 or 2 years without an increase in the base
rate, and that three plants have had only one base-
rate increase According to Dilworth, five of the
nine waferboard plants (including Dungannon) did
not receive an across-the-board wage increase in
1988
Dilworth testified that he had evaluated Dungan-
non in October 1988, and sometime in November
or December 1988, had decided not to make any
changes in either the base wages or in the baseline
for the incentive program He stated that he had
felt that the incentive program tied productivity to
the new flaker machine during its shakeout period,
and that, should the machine's efficiency prove
transitory, it would be disadvantageous to the Re-
spondent to have lowered the baseline of the incen-
tive program and increased the across-the-board
wage rate Dilworth admitted that he had not noti-
fied anyone about his decision, he had not dis-
cussed the issue with the Dungannon plant manag-
er and had neither telephoned anyone m manage-
ment nor issued memoranda on the subject
The judge concluded that Dilworth's January
1988 statement and Dodge's and Moore's July-
August 1988 statements, ascribing to the Union the
withholding of the fall 1988 base-rate increase,
were sufficient to support a finding of discriminato-
ry motivation As noted earlier, however, he de-
clined to find that the Respondent had violated
Section 8(a)(3) of the Act when it had withheld the
1988 wage increase because he found that the Gen-
eral Counsel had failed to prosecute the case on
this theory The General Counsel has excepted to
this finding, arguing that the discnminatory-moti-
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vation theory was stated in the complaint and was
litigated at the heanng, but was inadvertently omit-
ted from the General Counsel's brief to the judge
We find merit in the General Counsel's exceptions
Both Section 554(b)(3) of the Administrative
Procedure Act and Section 102 15 of the Board's
Rules and Regulations require that the complaint
inform the Respondent of the violations alleged
The Board may not make a finding or order a
remedy on a violation not alleged in the complaint
or litigated at the hearing See, e g, Teamsters
Local 992 v NLRB, 427 F 2d 582, 588 (DC Or
1970), NLRB v Blake Construction Co, 663 F 2d
272, 279 (D C Cm 1981)
In this case, the statutory and regulatory require-
ments for finding an 8(a)(3) violation are satisfied
The complaint in paragraphs 11, 12, 18, and 19
states that in violation of Section 8(a)(3) and (1) of
the Act, the Respondent withheld an annual wage
increase from its employees in 1988 because its em-
ployees had assisted the Union The General Coun-
sel elaborated on the complaint's discriminatory
motive theory at the outset of the hearing
Employees inquired of supervision why they
had not received their annual wage increase
They were told at that time the reason was be-
cause of the union We firmly believe that this
evidence, along with the established past prac-
tice of the employer, makes out a violation
that but for their union activity they would
have been granted a wage increase
The General Counsel then proceeded to put in evi-
dence the testimony of employees Larry McCon-
nell, Richard Vautrm, Rich Finch, and Donnie Sa-
lyers on this issue
Finally, we note that, pursuant to Section 102 42
of the Board's Rules and Regulations, there is no
requirement that parties file any briefs with the ad-
ministrative law judge As filing a postheanng brief
is permissive in the first instance, the mere omission
of the 8(a)(3) argument from his brief at that point
hardly, by itself, warrants finding, that the counsel
for the General Counsel thereby waived the 8(a)(3)
theory explicitly put in issue by the complaint Ac-
cordingly, we conclude that the issue of the Re-
spondent's motivation in withholding the 1988
wage increase was properly before the judge 7
We also conclude that the judge correctly stated
that the record supports finding that the Respond-
ent withheld the 1988 wage increase for discrimina-
tory reasons Our analysis of this issue does not
end, however, with a consideration of the incrimi-
nating statements of the Respondent's manager and
'See Moore Co, 264 NLRB 1212 In 1 (1982), enf denied without
opinion 722 F 2d 738 (4th Or 1983)
supervisors Rather, we find that these statements
satisfy the General Counsel's burden to make a
prima facie showing sufficient to support the infer-
ence that protected union activity was a motivating
factor in the Respondent's decision to withhold the
1988 wage increase We further find that Dil-
worth's testimony in rebuttal, if credited, fails to
demonstrate that the Respondent would have with-
held the increase even in the absence of the pro-
tected conduct 8
Dilworth testified that he decided sometime in
November or December 1988 to do nothing con-
cerning both base wages and the baseline in the in-
centive program because he wanted to wait until
after the new flaker's shakeout period Dilworth
also claimed that he told no one—management or
employees—about this 1988 decision not to give
the across-the-board increase in base wages 9 This
claimed secrecy renders implausible the asserted
timing of, and the asserted reasoning behind, the
decision It strains credulity to believe that the op-
erations manager for a company division compris-
ing several plants would make a decision about re-
muneration for employees at one of those plants
without at least discussing that matter with man-
agement at that plant Moreover, Dilworth's failure
to commumcate openly with managers and em-
ployees is contrary to the past practice at Dungan-
non As indicated above, Dilworth and Plant Man-
agers Pete Chase and Steve Harper openly dis-
cussed the August 1986 across-the-board increase
in wages with the Dungannon plant employees
Similarly, at the end of the summer in 1987, Dil-
worth, Chase, and Plant Manager Dan Hemore re-
peated this pattern of open discussion concerning
the 1987 increase Dilworth and Chase also openly
discussed with employees the installation of the
new flaker and its potential impact on the monthly
production bonus Thus, the alleged secrecy itself
suggests that Dilworth did not make the decision
when he said he did
Even were we to assume that this decision was
made when Dilworth said it was, withholding the
increase was inconsistent with the Respondent's
previous actions at the Dungannon plant In 1987,
the Respondent not only introduced the production
incentive program with its monthly bonuses in
May, but it also paid the across-the-board wage in-
crease in October Given the 1987 experience, we
are not persuaded that the Respondent's introduc-
tion of the new flaker in 1988 precluded any addi-
tional recompense other than the incentive pro-
8 See Wright Line, 251 NLRB 1083, 1089 (1980), enfd 662 F 2d 899
(1st Or 1981), cert denied 455 US 989 (1982)
9 The Respondent offered no contemporaneous wntten documentation
attesting to Dilworth s decision
LOUISIANA-PACIFIC CORP 19
gram for the Dungannon employees Indeed, we
are persuaded that were it not for the Union's win-
ning the election, the Respondent would have
granted the employees a base-wage rate increase in
the fall of 1988 Thus, we find that the Respond-
ent's assertion that it gave no raise because it
wanted to see the effects the flaker had on produc-
tion is not supported on the record considered as a
whole
In sum, at the critical time when the union cam-
paign was underway, the Respondent told the
Dungannon employees that they would not receive
their 1988 across-the-board wage mcrease—an in-
crease they had been promised—if they supported
the Union Later, the Respondent followed up on
its threat to deny the across-the-board increase in
wages
The record thus supports the finding that the Re-
spondent withheld the 1988 wage increase because
it wanted to discourage the Dungannon employees'
union activity Accordingly, we conclude that the
Respondent failed to rebut the General Counsel's
prima facie case and that the Respondent's with-
holding of the 1988 wage mcrease violated Section
8(a)(3) and (1) of the Act 10
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Louisiana-Pacific Corporation, Dungan-
non, Virginia, its officers, agents, successors, and
assigns, shall take the action set forth in the Order
as modified
1 Insert the following as paragraph 1(a) and re-
letter the subsequent paragraphs
"(a) Discnmmatonly withholding annual in-
creases in base rates from production and mainte-
nance employees employed by the Respondent at
its Dungannon, Virginia plant"
2 Insert the following as paragraph 2(b) and re-
letter the subsequent paragraphs
"(b) Resume the annual wage increase policy and
make whole all employees in the appropriate unit
for all wage increases that they would have re-
ceived had the Respondent not unlawfully discon-
tinued that policy, plus interest"
3 Substitute the attached notice for that of the
administrative law judge
10 See Times Wire & Cable Co , 280 NLRB 19 (1986)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT discnmmatonly withhold any in-
creases in base rates from production and mainte-
nance employees employed at our Dungannon,
Virgmia plant, or otherwise discriminate against
employees because of their protected activities
WE WILL NOT unilaterally withhold any in-
creases in base rates from production and mainte-
nance employees employed at our Dungannon,
Virginia plant, and WE WILL NOT unilaterally
change any wages, hours, or terms and conditions
of employment of those employees
WE WILL NOT refuse to bargain collectively in
good faith with United Brotherhood of Carpenters,
Mid-Atlantic Industrial Council, United Brother-
hood of Carpenters and Joiners of America, AFL-
CIO, as the exclusive collective- bargaining repre-
sentative of our Dungannon, Virginia production
and maintenance employees
WE WILL NOT inform employees that they will
not receive pay increases or job reclassifications be-
cause they selected the Union as their collective-
bargaining representative
WE WILL NOT prohibit employees from wearing
union insignia at the plant
WE WILL NOT inform employees that they will
be closely watched because of their union activi-
ties
WE WILL NOT issue oral or written warnings to
employees in reprisal for their union activities and
union sympathies
WE WILL NOT discourage membership in or ac-
tivities on behalf of United Brotherhood of Carpen-
ters, Mid-Atlantic Industrial Council, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other labor organization by
placing illegal warnings in employee personnel
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
files, by suspending or discharging employees, or
by otherwise discriminating against them in their
hire or tenure
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act
WE WILL, on request, bargain collectively with
the Union as the exclusive collective-bargaining
representative of our Dungannon, Virginia produc-
tion and maintenance employees and, if agreement
is reached, WE WILL embody that agreement in a
signed, written contract
WE WILL grant wage increases in accordance
with our past practice and WE WILL make all em-
ployees in the appropriate unit whole for any wage
increases that they were unlawfully deprived of by
paying them the amounts of the increase due them,
with interest
WE WILL offer to Richard Vautnn full and im-
mediate reinstatement to his former or substantially
equivalent employment, and WE WILL make Larry
McConnell and Richard Vautnn whole for any loss
of pay or benefits that they may have suffered by
reason of the discriminatory practices against them,
with interest
WE WILL remove from the personnel records of
Richard Vautnn and Larry McConnell all discipli-
nary warning notices and related memoranda, and
WE WILL inform these employees that we have
taken this action and that the disciplinary warning
notices and related memoranda will not be used as
the basis for future discipline
LOUISIANA-PACIFIC CORPORATION
Pans Favors, Esq and Rosetta Lane, Esq , for the General
Counsel
William M Earnest, Esq , of Atlanta, Georgia, for the
Respondent
DECISION
STATEMENT OF THE CASE
FINDINGS OF FACT
WALTER H MALONEY, Administrative Law Judge
This case came on for hearing before me at Norton, Vir-
ginia, upon a consolidated unfair labor practice com-
plaint,' issued by the Regional Director for Region 11 of
The pnncipal docket entnes in this case are as follows
Charge filed herein by United Brotherhood of Carpenters, Mid-Atlan-
tic Industnal Council, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (Union), against the Respondent in Case 1I-CA-
12998 on October 11, 1988, amended on November 1, 1988, and amended
again on November 30, 1988, complaint issued by the Regional Director
for Region it, against the Respondent on November 30, 1988, Respond-
ent's answer filed on December 2, 1988, charge filed by Union in Case
11-CA-13152, on January 25, 1989, order consolidating cases and con-
solidated complaint issued by Regional Director for Region 11, against
the National Labor Relations Board, which alleges that
Respondent Louisiana-Pacific Corporation 2 violated Sec-
tion 8(a)(1), (3), and (5) of the Act More particularly,
the consolidated complaint alleges that the Respondent
told employees that they would not receive a wage in-
crease because they selected the Union to be their collec-
tive-bargaining representative, informed them that cer-
tain job classifications could not be upgraded because
they had selected the Union as their collective-bargain-
ing representative, prohibited employees from wearing
hats with proumon msignia, informed union supporters
that they would be closely watched, issued written warn-
ings to employees m reprisal for their union activities,
suspended Richard Vautnn and Larry McConnell in re-
prisal for their umon activities, and discharged Vautnn
for the same reason The consolidated complaint also al-
leges that the Respondent withheld an annual wage in-
crease from its Dungannon production and maintenance
employees in derogation of its duty to bargain with the
Union as their duly selc, bargaining agent After the
Board certified the Un-: on March 24, 1989, the Re-
spondent recognized it as the representative of its Dun-
gannon employees but it did not accord such recognition
between the date of an election, held on February 3 and
4, 1988, and the date of the Board decision Respondent
denies the commission of independent violations of Sec-
tion 8(a)(1) of the Act, asserts that Vautnn and McCon-
nell deserved the repnmands it placed in their respective
records for an assortment of work-related deficiencies,
and further asserts that McConnell was suspended and
Vautnn was discharged because of poor job perform-
ance Upon these contentions the issues in this case were
joined 3
B The Unfair Labor Practices Alleged
The Respondent is a large national corporation which
opened a factory at Dungannon in southwest Virginia in
1986 It currently employs about 100 employees who
work in four shifts and maintain round-the-clock produc-
tion 7 days a week The Respondent manufactures a new
product known as waferboard, which is used for walls,
floors, and roofing in both residential and commercial
construction In the late summer of 1987, the Union initi-
ated an organizing campaign at the Respondent's Dun-
gannon plant and filed a representation petition on No-
vember 19 (Case 5-RC-13002) On February 3 and 4,
1988, it won the election by a majority of about two to
one However, it was not certified until 14 months later
Respondent on March 16, 1989, Respondent's answer filed March 22,
1989, heanng held in Norton, Virginia, on April 25-27, 1989, briefs filed
with me by the General Counsel and the Respondent on or before July 3,
1989
2 The Respondent admits, and I find, that it is a Delaware corporation
which operates a factory at Dungannon, Virginia, where It manufactures
wood building material known as waferboard During the 12 months pre-
ceding the issuance of the consolidated complaint in this case, the Re-
spondent received at its Dungannon, Virginia factory, goods and raw ma-
terials valued in excess of $50,000 directly from points and places located
outside the Commonwealth of Virginia Accordingly, the Respondent is
an employer engaged in commerce within the meaning of Sec 2(2), (6),
and (7) of the Act The Union is a labor organization within the meaning
of Sec 2(5) of the Act
3 Errors in the transcript have been noted and corrected
LOUISIANA-PACIFIC CORP

21
because of the processing of objections to the conduct of
the election which were filed by the Respondent
Respondent conducted a vigorous campaign to defeat
the organizing drive I discredit the testimony of Kathy
Hammond, Respondent's personnel director, that the
Company simply provided employees with information
relating to the pro's and con's of unionization Supervi-
sors were given literature disparaging unionization and
were instructed to give it to the members of their respec-
tive crews and then to read it to them On the union
side, employees, including discnmmatees McConnell and
Vautnn, distributed union handbills at the plant gate to
other employees and campaigned for the Union in pri-
vate conversations at the plant The Union disseminated
a periodic news letter to employees, which contained
signed articles written by other employees, including
Vautnn, and carried its message to employees and to the
general public in a daily newspaper of general circulation
in the area
During the election campaign the Respondent kept
known or suspected umon supporters under careful scru-
tiny during their shifts D Shift, the one supervised by
Foreman Mickey Mullins, was regarded by management
as a focal pomt of union activism Supervisor Jim Sum-
mers instructed management trainee Terry Starnes to
help Mullins keep an eye on this crew because Mullins
had too many union supporters on his hands Included in
this crew were Vautnn, McConnell, Brice Barker, and
Nelson Osborne Summers told Starnes to keep a special
eye on Vautnn, instructing Starnes to make repeated
trips to the dryer control room to discourage Vautrm
from campaigmng He told Starnes to do what ever he
had to do—come in by side doors or back doors, if nec-
essary—to catch Vautnn "screwing off"
Starnes was also instructed to watch employee Glen
Compton, who was being reprimanded for a safety viola-
tion He informed Starnes that the Company was going
to "push this thing to the max" with regard to Compton
By that statement Summers meant that the Respondent
was gomg to bypass certain steps in the Company's pro-
gressive discipline system in order to give Compton a 3-
day suspension for his first offense Hammond was also
present during a preelection supervisor's meeting relating
to surveillance of union sympathizers In reference to
Compton, Hammond told Starnes to "stay in his back
pocket watch especially for safety violations if
we can get anything else, we'll get rid of one of these
union assholes" Surveillance of union sympathizers was
also mentioned at other supervisory meetings Among
those who were made the special subject of company
scrutmy were Vautrm, McConnell, Nelson Osborne, Ron
Osborne, Donnie Salyers, and Larry McConnell 4
4 Several company supervisors and officials whose names were men-
tioned prominently in the testimony in this case were not summoned to
testify This number included Mickey 0 Mullins, Peter Chase, Tom
Moore, Jeff Mann, Jim Summers, Brad Dodge, Dan Hemore, and Tom
Fannon Hammond testified briefly at the outset of the case as an adverse
witness summoned by the General Counsel, but she did not resume the
stand at any later point in time to rebut testimony concerning her antiun-
ion activities Accordingly, much of the General Counsel's evidence
stands unrebutted in the record and is credited
Starnes testified without contradiction that management
officials who attended preelection supervisory meetings,
specifically Summers and Hammond, felt that Vautrm
was bucking for union president
On the evening of the count of ballots—February 4,
1988—a postmortem was held by management officials
and antiunion members of the bargaining unit to lament
the fact that the Union had won the election by a deci-
sive margin Regional Manager Peter Chase told the in-
formal gathering not to worry, commending those in at-
tendance for their efforts in trying to keep the Union out
of the plant He urged them to give procompany sympa-
thizers some leeway in taking breaks and going to lunch
Hammond was a little more emphatic She thanked those
who had worked for her and also thanked bargaining
unit members who had supported the Company, saying
that it took a lot of guts for some employees to switch
ties after having first supported the Union Her advice as
to how to handle union supporters was quite blunt "As
far as your Vautnns, McConnells, your Osborne boys,
and your Bnce Bakers just keep an eye on them and
anything that you can find on them—anything, any dis-
crepancy to a rule—just don't give them a break any-
where and maybe you'll find a way to get rid of some of
these union people " 5 Jim Summers then chimed in
"These s o b 's really showed you who your friends are
now There ain't a one out there that cares anything
about you They didn't support you, they didn't back
you up at all If it was up to me, I'd fire every damn one
of them" Chase then broke in and advised caution, tell-
ing the group that if the Company took any immediate
action against any union organizer or union sympathizer,
they would surely have grounds to file a charge with the
Board or some other agency He also tried to comfort
company supporters by telling them that, during negotia-
tions, the Union would have to negotiate with him and it
would not be able to do so He insisted that, as far as he
was concerned, the Union would never get a contract
While objections to the election were pending before
the Regional Office and the Board, the Respondent con-
tinued to express its feelings against the unionization of
the plant on an ongoing basis In the summer of 1988,
employees at Dungannon were anticipating an across-
the-board increase in wage rates similar to increases they
had received in 1986 and 1987 McConnell had occasion,
during this point in time, to discuss this question with
Brad Dodge, an electrical supervisor who worked both
at Dungannon and at the Respondent's Houlton, Maine
factory, the parent plant of the Dungannon facility
Dodge told McConnell that the Respondent's employees
at Houlton had already received their wage increase but
that he doubted that Dungannon employees would re-
ceive anything because of the Union Not long thereaf-
ter, McConnell broached the same subject with Supervi-
sor Tom Moore, who told him and employee Ricky
Finch that the Company was not going to give Dungan-
non employees a raise because of the Union Moore
added that, because of the Union, the Company would
5 Hammond denied under oath that she had attended any postelection
meeting I discredit her statement, which was contradicted by Company
Division Manager Dan Dilworth, among others
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not be reclassifying millwnghts upward from Class C to
B or from Class B to A, and the same would be true re-
specting any upward reclassification of electncians
McConnell and other pressmen work in an enclosed
booth overlooking the production line In September
1988, McConnell and the new plant manager, Dana Du-
lohery, held a conversation in the press booth concern-
ing a baseball cap which McConnell was wearing Many
parts of the factory are "hard hat" areas, meaning that
employees and supervisors are expected to wear protec-
tive helmets while working in those portions of the
plant Since the press booth is both covered and en-
closed, it is not a hard hat area and employees are free to
wear other head coverings or no covenng at all McCon-
nell's baseball cap had a union insignia on it and Dulo-
hery took exception to the insignia He told McConnell
to take the cap off and not to wear it McConnell began
to argue with him and asked him why he could not wear
the cap Dulohery gave no reason, he simply repeated
his order directing McConnell to remove the cap This
exchange continued as McConnell continued to demand
a reason for the order Dulohery simply replied that, if
McConnell wanted to wear anything, he should wear a
hard hat Dulohery ended the conversation by telling
McConnell that, if he wished to discuss the matter fur-
ther, he could do so in the plant manager's office Mc-
Connell removed the baseball cap with the union insignia
and did not wear it again at the plant
In January 1989, McConnell had a conversation with
his foreman, Mickey Mullins, concerning the Union The
conversation occurred dunng a breakdown while em-
ployees were checking and cleaning the equipment on
the production line McConnell asked Mulhns whether
Mullins thought that McConnell had anything to do with
the repeated breakdowns which the Respondent was ex-
penencmg with its equipment Mullins replied that he did
not think that McConnell was responsible but Summers
and Dulohery thought it was funny that many of the
breakdowns occurred on shifts manned by Mullins' crew
He told McConnell that the latter had better "watch it"
because Summers and Dulohery had a grudge against
him McConnell's response was that he did not know
why they would feel that way since he had never done
anything to hurt anyone McConnell asked Mullins why
upper management felt the way they did Mullins replied
that it was because of McConnell's union activities and
that McConnell had better "keep an eye out" for them
At issue in this case are certain warnings given by the
Respondent to McConnell and Vautnn for unsatisfactory
performance of their duties as press operators This job is
one of the higher paying and more responsible positions
in the bargaining unit There is normally one press oper-
ator on each shift He is assigned to work in a control
room or press room, descnbed above, and to control the
functioning of a large, partially automated press through
the use of various buttons and gauges found in the con-
trol booth This operation falls near the end of the entire
process of making waferboards The process begins with
the debarking of logs of various sizes which are brought
to the plant by independent contractors After the bark is
stnpped from the logs by machine, the logs then pass
through a newly acquired machine called a wafenzer,
which slices the wood into very thin flakes or wafers
These wafers or chips are placed in a wet bin, dried by a
dryer, and then conveyed to separate dry bins One bin
holds chips which are used to form the cores of the wa-
ferboards and another holds chips which are used to
form the bottoms and tops of the boards From the dry
bins the chips are sent to a blender where they are mixed
with resin and wax and poured into formers which form
the bottom, core, and surface layers of a waferboard
From this point, the resin-treated wafers, sometimes
called mats, are placed on metal screens and inserted into
a loader cage Eight mats are automatically transferred
from the loader cage into the press on separate wooden
pallets After the loading is completed, the pallets are re-
moved from the press by a loader boom The mats are
then pressed to a desired thickness under 2,275 pounds of
pressure The combination of heat, moisture, resin, and
pressure bonds the wafers into waferboards dunng a
pressing cycle which lasts about 3 minutes After the
pressure is released, the completed boards are removed
from the press by an unloader boom which clamps the
head bars along the front of the screens on which the
mats have been resting When the press is operating
properly, the headbars protrude from the press so they
will not be crushed during the pressing cycle
After the waferboards are removed from the press,
they are sent along a conveyer to the saw line, where
they are cut into sheets, stacked, strapped, and carried to
the warehouse for shipment Finished products are
graded "A" for the best board, "U" for second best, and
"X" for unsuitable for sale About 2 percent of the Re-
spondent's monthly production is "X" rated
As previously noted, the Respondent normally follows
a progressive discipline system for a wide variety of in-
fractions and shortcomings which violate its standards of
employee conduct or proficiency The first step is an
oral warning, the second a written warning, the third a
3-day suspension, and the fourth is discharge This is the
system which was assertedly brought to bear upon Mc-
Connell and Vautnn On or about December 27, 1988,
Vautnn was discharged after having received a verbal
warning on August 30, wntten warnings on September 9
and October 18, respectively, and a 3-day suspension on
December 8 All of these disciplinary measures were im-
posed for mistakes committed in the performance of his
duties as press operator McConnell was given a 3-day
suspension on or about January 24, 1989, for a mistake
after having received a verbal warning on October 18
and a written warning on December 8, 1988, all for job-
related errors as press operator
Vautrm started to work for the Respondent in August
1985, while the Dungannon plant was still under con-
struction He first worked as a utility man doing cleanup
work, was later employed as a Class B millwright,
worked on the dryer, and was then assigned to the qual-
ity control department He bid on the job of press opera-
tor against 8 or 10 other employees and was given the
position on a full-time basis in August 1988, after having
been a part-time observer in the press room learning the
requirements of a job while still doing quality control
"LOUISIANA-PACIFIC CORP 23
work 6 Dulohery came to Dungannon as plant manager
at the same time, after having worked for the Respond-
ent in a management capacity at its plant in Colorado
Shortly after his arrival in Dungannon, Dulohery began
making pnvate memos to Vautrm's personnel file They
recited various errors which Vautnn had been seen com-
mitting as a newly assigned press operator and also recit-
ed Dulohery's conversations with Vautnn which at-
tempted to correct these mistakes 7 The notations dealt
with such matters as failing to turn on the core blending
system, plugging the core blender outfeed conveyor, and
failing to turn the press on semi-automatic to complete
the press cycle instead of asking for help from the mam-
tenance department On August 30, Dulohery made an-
other entry in Vautnn's file, styled as a memo from him-
self to Vautnn, which contained a discussion with Vau-
trim which took place on that day concerning certain
press functions It stated
The point of the meeting has been to correct the
problem If Rich wants to continue to be a press op-
erator, he must become more consciencious of oper-
ating procedures and solving problems without cre-
ating more problems
Dana asked Rich if he needs more training
There will be written procedure on how to close
the press should there be programs and trouble-
shooting techniques 6
There will be a follow-up meeting to check
Rich's progress on Sept 13, 1988
Dana F Dulohery
On September 9, Vautrm was given an employee
warning notice, which stated
On 9-9-88 at approximately 11 30 a m you failed
to restart the formers after stopping them due to a
plug in the line This resulted in blank mats and thin
mats having to be rejected This caused unnecessary
downtime and bad board On 8-30-88 you were
given a verbal warning for the same type of inci-
dent This leaves us no alternative but to give you a
written warning If this happens again it may result
in discipline up to and including discharge
6 Respondent's witnesses spoke in terms of a training program for pro-
spective press operators at Dungannon No such program exists in any
formal, structured sense of the word There is no academic instruction or
training for the job, those who are selected for it are simply allowed to
spend their spare time from other positions in the control room watching
other press operators man this position
7 In the course of its regular disciplinary procedure, the Respondent
uses a printed form, called an employee warning notice The nature of
the infraction, regardless of what It might be, is checked on the form and
a short narrative is set forth describing what happened The form is then
shown to the employee and his signature is solicited It is then placed in
his personnel file and left there permanently There is no provision in the
Respondent's disciplinary procedure for the removal of disciplinary no-
tices after the passage of a stated period of time The notations made by
Dulohery in August were not made on these forms but were merely
typed notes placed in Vautnn's personnel file which had not been
brought to Vautrm's attention
6 As of April 1989, when the hearing in this case took place, no such
troubleshooting manual had been prepared
On October 18, 1988, Vautnn received another wntten
employee warning notice, which read
On 10-13-88, Rich Vautnn was operating the
press Rich closed the press on the pallet thus de-
stroying the pallet and causing downtime On the
same date Rich ran the line at 100% speed while
using 50% of the required material causing down-
grade panels The problems with Rich's perform-
ance and inattention to his job have been discussed
with him on several occasions and he has received
one written warning However, due to the wording
on Rich Vautrm's warning dated 9-9-88, with this
being a different incident, he will not be suspended
Rich will receive only a written warning, but must
improve his performance by paying attention to his
job Any further problems with Rich will result in
disciplinary action up to and including discharge
On December 8, 1988, Vautnn received another warn-
ing notice, which read
In spite of several verbal and written warnings
your quality of work has failed to improve For in-
stance, on December 6, 1988, at approx 9 14 a m
you failed to change the press settings correctly
during a change over of thickness This resulted in
unnecessary downtime and downgrade board Also
you failed to log the downtime of the shift report
With a previous written warning on 10-18-88, we
must suspend you for three days without pay Your
suspension will begin on December 13, 1988, and
you will be expected to return to work on Decem-
ber 16, 1988 at 11 00 pm It is important that your
performance improve as any further problems with
your performance will result in your termmation as
press operator
On December 22, 1988, Vautnn was experiencing diffi-
culty with the No 5 pallet on the loader The press
could not be loaded because the required number of
screens, namely eight, were not there, so Vautnn sum-
moned Addington, the line technician, to help with the
loading of the press Instead of Addington, Steve Ver-
million, Vautnn's supervisor, responded to the call Ver-
million personally loaded the No 5 pallet into the press
manually When the loader boom came out of the press,
Vermillion, who was standing on a railing next to the
press, gave a signal to Vautnn in the press booth to start
the press Vautnn pressed the button starting the press in
this cycle and heard the sound of wood breaking Ver-
million jumped down from where he was standing and
pushed the emergency stop button One of the wooden
pallets which was in the press had not been completely
removed so the press closed on it and crushed it Vermil-
lion asked Vautnn why he had closed the press when a
pallet was sticking out of it Vautnn said he could not
see it Vautnn asked Vermillion why he had signaled to
him to start the press when the pallet was sticking out
since Vermillion was standing right next to the press
Vermillion had no answer The crushed pallet was re-
placed by another pallet which had been kept in reserve
and the press resumed operation The plant production
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
report for December 22, 1988, showed that D crew
(which was involved in this incident) was down a total
of 80 minutes, 40 minutes to replace the crushed pallet
and an aggregate 40 minutes for two other mishaps
which occurred in the course of the shift Notwithstand-
ing these problems, D crew was second among the four
production crews in percentage of total operating time
during which it functioned on that workday
The following day Vautnn was called into the office,
suspended, and given a warning notice which was placed
in his personnel file It read
On December 22, 1988, you pressed a pallet which
caused unnecessary downtime, downgrade board,
and destroyed the pallet On 12-8-88, you received
a three-day suspension due to performance prob-
lems At this time we are suspending you without
pay until this can be investigated further On 12-27-
88, you will be notified of the status of the investi-
gation and a meeting will be set up at that time
On December 27, Vautnn was called to the plant for a
meeting with Dulohery and several management offi-
cials Dulohery handed Vautnn a warning notice which
read "Due to your continued poor performance, your
employment with Louisiana-Pacific is terminated as of
12-27-88" Vautnn questioned this action, asking Dulo-
hery how Dulohery could fire him over this incident
when Vermillion was present blocking his view of the
press and he was merely doing what Vermillion told him
to do when he pressed the button closing the press Du-
lohery's reply was that Vautnn should have seen the
pallet protruding from the press Vautnn argued that, if
he had failed to close the press pursuant to Vermillion's
instruction, he could have been written up for disobeying
orders His argument was unavailing and he left the
plant
Larry McConnell has worked for the Respondent for
about 3 years Dunng that period of time, he has held
jobs on the saw line and in the quality control depart-
ment In March 1988, he was promoted to press operator
as a result of a bidding process
On October 24, 1988, McConnell was given an em-
ployee warning notice which read
On October 17, 1988, when the press was loaded
you failed to see that one may after being loaded
came part way back out of the press This caused
one side of the headbar to be pressed inside of the
press This can cause a considerable amount of
equipment damage, including unnecessary down-
time Due to your neglect and the job performance
problem listed on the attached page that Mickey
Mullins and Jim Summers have discussed with you,
we are issuing this verbal warning Any additional
problems with your job performance may result in
disciplinary action up to and including discharge
On December 8, 1988, McConnell was issued another
employee warning notice, which read
On November 29, 1988, you failed to see that a mat
had pulled back out of the press You have received
a verbal warning on October 24, 1988, for a similar
situation, with neglect and job performance It is
important that your performance improve as any
other problems will result in disciplinary action up
to and including discharge
On January 24, 1989, McConnell was suspended for 3
days after having received the following notice
On Monday, January 23, 1989, at approx 200 pm
while changing from 3/8" board to 7/16" board,
you forgot to enter the proper L settings for 7/16"
This negligence caused two bundles of approximate-
ly 6000' of downgrade board On 12-12-88, you re-
ceived a written warning concerning neglect and
job performance, therefore you are receiving a
three-day suspension, effective on Wed 1-25-89, 1-
26-89, & 1-31-89 You will be expected to return to
work on 2-1-89 at 11 00 p m It is important that
your performance improve as any further problems
will result in your termination as a press operator
McConnell returned to work after the suspension and
was still employed as a press operator as of the date of
the hearing m this case
The Dungannon plant began to operate m May 1986
On August 10, 1986, all production and maintenance em-
ployees received a 30-cent-an-hour increase in their re-
spective base rates At that time, the Respondent had not
yet inaugurated a program of incentive payments which
began in July 1987 9
News of the 1986 across-the-board increase was given
to employees by Chase at a safety meeting, which was
also attended by Division Manager Dan Dilworth Chase
said that the plant had not been in operation long enough
to warrant an incentive program but he informed em-
ployees that such a program would be instituted later on
He also told them that Dungannon employees would be
evaluated for a raise every year at or about the same
time However, he did not explain the evaluation proc-
ess 1°
In October 1987, Dan Hemond, the former plant man-
ager, told employees that he was going to a management
meeting at Hayward, Wisconsin, where a determination
would be made concerning the annual raise Upon his
return, he announced that production employees would
9 The program of incentive payments which began at Dungannon in
July 1987, calls for plantwide bonuses, payable in the same amount to all
employees, both management and hourly rated alike, except for plant
guards and a few contract workers Computations are made on a 28-day
basis Thereafter an additional amount representing the incentive bonus is
then placed in the paychecks of each affected worker during the follow-
ing month Dunng 1987, incentive bonuses ranged from $ 30 to $ 77 per
hour In the first 4 months of 1988, incentive payments ranged from $ 07
to $ 39 per hour There were no incentive payments in May, June, and
July of that year
10 According to Dilworth, the evaluation process is a one-man inquiry,
made by him each year with respect to all 10 of the Respondent's plants
which fall under his supervision and control His evaluation extends both
to base rates and to incentive rates Sometimes, as a result of the evalua-
tion, the employees at a given plant may receive an Increase and some-
times they may not, depending on how he feels about the plant's per-
formance and the area wage scale The decision to grant or withhold an
increase is Dilworth's alone and, according to him, he does not necessari-
ly consult with anyone else either before or after making It
LOUISIANA-PACIFIC CORP 25
receive a 25-cent increase across the board while utility
employees would get a 35-cent increase because their
wages had fallen behind those of other employees in the
plant These increases did not become effective until Oc-
tober 1987 Shortly thereafter, another meeting took
place between employees and Chase and Dilworth In
the course of discussing the future plans of the Compa-
ny, Dilworth was asked by employee Donnie Salyers
employees were going to receive a raise in October 1988
His reply was that the plant would be evaluated for a
raise at the same time the following year However, in
January 1988, at an employee meeting held in the com-
pany lunchroom not long before the representation elec-
tion, Dilworth told those in attendance that, if employees
brought the Union in, he would not even talk with them
about a pay raise the following October
Incentive payments began to increase markedly in Sep-
tember 1989, after a new wafenzer was installed and
functioning, because the production capacity of the plant
increased markedly Between September 1988 and March
1989, monthly incentives ran from $ 98 to $1 99, a major-
ity were in excess of $1 50 an hour Dilworth testified
that it was within his prerogative as division manager to
reduce production incentives and that he had done so on
occasion at other plants He also said that, while he was
watching the rates at Dungannon carefully, he had not
as yet taken any action to lower them, notwithstanding
the fact that the Respondent had told employees when
the program was instituted that incentive rates would not
exceed $1 an hour
No increase in the base rates was granted to produc-
tion and maintenance employees at Dungannon m 1988,
although there was a lively anticipation on the part of
employees that an across-the-board increase would take
place Some salaried employees received pay raises Dil-
worth testified that he had decided against any such in-
crease because employees were doing so well with the
incentive rates that any increase m base rates would
serve only to decrease what they were making under the
incentive program Since the validity of the certification
was still being tested in the fall of 1988, the Respondent
had not as yet accorded recognition to the Union, and
there is no contention that the question of base rate in-
creases was in any way negotiated with the Union at that
time
II ANALYSIS AND CONCLUSIONS
A Independent Violations of Section 8(a)(1) of
the Act
The Respondent violated Section 8(a)(1) of the Act by
the following acts and conduct
(a) It is undemed in the record that, in the summer of
1988, McConnell and Supervisor Brad Dodge held a
conversation at the Dungannon plant concerning a pro-
spective across-the-board increase in the fall Dodge told
McConnell that the Houlton employees had already re-
ceived an increase but that Dungannon employees would
receive nothing because of the Union Such a statement
amounts to an interference with protected activities and
a repnsal for union activities which violates Section
8(a)(1) of the Act
(b) At or about this same point in time, Supervisor
Tom Moore also told McConnell and Finch that the
Company was not going to give Dungannon employees a
raise because the Union had come into the plant Like
Dodge's statement, Moore's statement is undemed on the
record and, for the same reasons, constitutes a violation
of Section 8(a)(1) of the Act
(c) In the course of his conversation with McConnell
and Finch, Moore also told them that, because of the
Union, the Company was not going to upgrade any mill-
wrights or electncians This statement violates Section
8(a)(1) of the Act
(d) In September 1988, Dulohery instructed McCon-
nell not to wear a baseball cap with a union logo on it
Supervisor Moore had been wearing a baseball cap bear-
ing a company insignia but his choice of head covenng
apparently did not offend Dulohery When McConnell
argued with Dulohery and asked repeatedly for a reason,
Dulohery gave none Most significantly, Dulohery did
not insist that McConnell wear a hard hat in place of a
baseball cap They were speaking in the press room, an
enclosed area for which safety helmets were not re-
quired, so all that Dulohery told McConnell on this
point was "if" he wanted to wear a hat, he should wear
a hard hat bearing the company logo In the absence of
special circumstances, an employer may not interfere
with an employee's right to wear a union button at
work Republic Aviation Corp v NLRB, 324 U S 793
(1945), Burger King Corp, 265 NLRB 1507, enfd 725
F 2d 1253 (6th Cir 1984) No such special circumstances
exist here to justify Dulohery's order Accordingly, by
directing McConnell to cease wearing a cap bearing a
union logo, the Respondent herein violated Section
8(a)(1) of the Act
B Warning Notices to Vautruz and McConnell
The Respondent's animus toward the unionization of
the Dungannon plant has been particularized above in
great detail It conducted a vigorous campaign against
the Union, even instructing its foremen to take employ-
ees aside in their offices to read them the texts of various
newspaper articles disparaging unionism Its personnel
director referred to union employees behind their backs
as "assholes" and the production manager called them
"s o b 's" Before the election the Respondent was keep-
ing union activities under close surveillance, adding su-
pervisory manpower to a particular crew which it re-
garded as a hotbed of union activity One supervisor was
told to stay in the "hip pocket" of a suspected union sup-
porter and watch him carefully for safety violations The
same supervisor was also told to keep an eye on Vautnn,
using surreptitious approaches, if necessary, to catch him
"screwing off" When a union victory became certain,
supervisors were told to keep certain union adherents
closely in view in order to get something on them so
that they could be discharged The only restraint laid
upon their zeal was to wait a while so that the victims of
their efforts could not effectively seek redress from the
Board Such statements, undemed in the record, disclose
not only hostility toward union adherents but a company
plan for getting rid of them Animus was also demon-
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
strated in this case by the commission of independent
violations of Section 8(a)(1) of the Act found above
Respondent was well aware of which of its employees
supported the Union Vautnn and McConnell were
prominent among this number Personnel Director Ham-
mond mentioned their names in this regard on more than
one occasion to other supervisors and in a disparaging
tone Vautnn had passed out literature on several occa-
sions at the plant gate, argued the union cause with Plant
Personnel Director Sandy Willis, attended several union
meetings, testified or held himself available to testify for
the Union at the representation hearing and at the hear-
ing on objections, and served as union observer at the
representation election He was viewed by management
as an individual who was "bucking for" the position of
union president ' 1 McConnell began his activity on
behalf of the Union before the representation petition
was filed in 1987 He attended union meetings and dm-
tnbuted leaflets to employees at the plant gate on two or
three occasions He wore a union insignia on a baseball
cap at the plant and engaged in a heated argument with
the plant manager when the latter insisted that McCon-
nell wear something else The warning he received in
January 1989, which resulted in a 3-day suspension, came
just days after his supervisor had warned him to be care-
ful because the plant management was trying to get
something on him
If a discriminatorily motivated employer sets about to
find something on an employee in order to discipline or
discharge him, it is immaterial whether it is successful in
actually coming across a genuine rule infraction or a
piece of poor work in the course of its hunting expedi-
tion Gencorp, 294 NLRB 717 (1989) A violation occurs
whenever it takes an adverse action, based upon its on-
going pursuit, which places the employee's job in jeop-
ardy In this case, a hostile employer set out to get both
Vautnn and McConnell and it got them The fact that
this effort took a while was all part of its announced
strategy—to strike while the iron was cold so that a
public agency would be induced to misconstrue its de-
signs The fact that a discharge (or a suspension) may
take place 4 months," 6 months," or even 17 months 14
after any overt union activity on the part of the discn-
mmatee does not immunize an employer from responsi-
bility for a discriminatory discharge In this case, the
wnteups given to Vautnn and McConnell charged them
with trivial job deficiencies which, in the case of other
employees, normally did not result in disciplinary action
at all The argumentative tone of Dulohery's wnteups
and the fact that they were usually written in the third
person indicate that he was more concerned with prepar-
ing documents for inspection by an administrative law
judge rather than for the correction of two poorly per-
, 1 Before the election, Vermillion, who was then holding a nonsupervi-
sory position, told Vautnn that employees would be making a mistake to
vote for the Union, arguing that a union could do nothing for them He
insisted the Company could do what it pleased with union employees
and, even though they might file charges, the Company could "get nd of
all of you" A few months later, after assuming a supervisory position,
Vermillion assisted in the company effort to get rid of Vautnn
12 Inc , 259 NLRB 1285
13 Marcus Management Inc , 292 NLRB 251 (1989)
14 J P Stevens & Co, 167 NLRB 258 (1967)
forming employees In short, the wnteups given to Vau-
tnn and McConnell in the fall of 1988 and early winter
of 1989 were part of a paper trail which was being laid
by the Respondent to support the eventual removal of
two leading union adherents whose presence on the com-
pany payroll was a matter of great concern and displeas-
ure long before these job deficiencies were ever noted
See Chopp & Go, 295 NLRB 1058 (1989)
Vautnn had barely assumed the position of press oper-
ator in August 1988, when Dulohery began making
memos to the file about his job deficiencies These
memos were not a part of the Respondent's regular disci-
plinary procedure and were placed in Vautnn's person-
nel folder without his knowledge 15 He first learned of
these matters a few days before the hearing in this case
when they were obtained under subpoena by the General
Counsel They can hardly be called reprimands when
they were not given to the reprimanded employee Many
of the items noted by Dulohery, such as the press being
out of sequence or the kicking out of the pumps, related
to deficiencies in the machinery, not the performance of
the operator The building up of plugs, noted by Dulo-
hery in his early memos, is a commonplace occurrence
on the production line Vautnn simply denied one of the
allegations in Dulohery's memo, namely that he had left
the core former system off I credit his denial
Vautnn was criticized for not turning the press to
semiautomatic and completing the press cycle rather
than seeking help from the maintenance department
when the press stopped I credit Vautnn's testimony that
the press in question would not work on semiautomatic
and that he had tried unsuccessfully to communicate this
fact to Dulohery Vautnn was reprimanded for closing a
press on a pallet, thereby breaking the pallet Pallets are
a cheap item, made of waferboard and kept on hand in
the warehouse in case they are needed for replacement
of existing pallets Such infractions can hardly be charac-
terized as other than trivial
On September 9, Vautnn was given a formal discipli-
nary warning for failing to restart the formers after they
had been stopped He failed to do so because some mill-
wrights were still working in the area He explained his
reason for not doing so to Vermillion but Vermillion re-
fused to accept the explanation, stating that Vautnn
should have known that he wanted the whole line run
The production sheets for that day show that Vautnn's
shift had the second highest production among the three
crews that were working, so the incident had little or no
bearing on the Respondent's output and was simply one
more event which was seized upon to apply the Re-
15 the cases of both Vautnn and McConnell, the Respondent was
dealing with two employees who had been with it for almost as long as
the Dungannon plant had been in operation Apparently both had per-
formed satisfactonly in a variety of other positions before being appoint-
ed press operators They had secured their appointments as a result of
competitive bidding It is some indication of the Respondent's discrimina-
tory Intent that, when the respective performances of Vautnn and Mc-
Connell as press operator were beginning to be called into question, they
were not sent back to former jobs where they had done well but were
both threatened with discharge, and, in the case of Vautnn, actually dis-
charged
LOUISIANA-PACIFIC CORP 27
spondent's progressive discipline procedure to a leading
union adherent
On December 8, Vautnn failed to adjust some gauge
settings as a result of which the production line was
down about 45 seconds and an undisclosed amount of
board was produced having an undesired thickness
Since 2 percent of the Respondent's normal monthly run
of waferboard—about 200,000 square feet—is downgrad-
ed, this incident can hardly amount to anything other
than the most trivial daily occurrence However, it was
also seized upon as the basis for a disciplinary warning,
as well as a 3-day suspension
The event which led to Vautnn's discharge occurred
on December 22 A mat had come out of the press and
Vermillion arrived at the scene to insert it back into the
press by manual effort He gave Vautnn, who was in the
press booth, a signal to start the press and Vautnn com-
plied with the order Unknown to either person a pallet
had slipped out of the press just behind Vermillion and
was crushed just as the press was closing on it For this
infraction, Vautnn was discharged, even though he was
acting under supervisory orders Vermillion, who was
standing next to the protruding pallet, was at least in pan
delicto with Vautnn, if not the moving cause of the de-
struction of the pallet He was given no discipline what-
soever, and in fact was an active participant in the col-
lective effort to pin the whole incident on Vautnn
When Vautnn insisted that he did not see, and could not
have seen, the protrudmg pallet, the Respondent's only
answer was that Vautnn should have seen it It laid no
such obligation upon Vermillion, who was much closer
to the scene, excusing Vermillion from any culpability
because his back was to the press In the arena of what
should have happened, Vermillion should have turned
around and made sure the press was ready for operation
before instructing an employee to close it However, a
double standard was invoked on this occasion to bnng
about a result which had been determined many months
before, namely the elimination from the factory of the
Union's most prominent mplant leader In light of the
above considerations, I conclude that the repnmands in
question were placed in Vautnn's file as part of an ongo-
ing plot designed to pave the way for his discharge, and
that the discharge on December 27 was prompted by
union considerations, not production considerations The
latter were merely used as a pretext to bnng about the
long anticipated conclusion of Vautnn's employment In
discharging Richard Vautnn, the Respondent violated
Section 8(a)(1) and (3) of the Act
On October 24, 1988, McConnell was given a formal
reprimand for closing a press with the headbar inside
The record indicates that Pam Stidham, another employ-
ee, was guilty of a similar infraction but was not given
any discipline (She was written up but her discipline
was revoked ) There was no damage to the headbar, no
recorded downtime on the press, and no damage to the
press as a result of this error On November 29, McCon-
nell closed a press on seven mats rather than the normal
eight mats For this offense he was given a second
formal reprimand The record is replete with instances in
which supervisors have told employees, including but
not limited to McConnell, that if a mat slips out of the
press, the operator should simply close the press on the
remaining seven mats While this is not the preferred
procedure, it has been an acceptable one in the eyes of
many of the Respondent's managenal personnel for a
long time However, McConnell was disciplined when
he followed this practice It is apparent that both events
were pretextual efforts to find something derogatory on
McConnell that could be recorded in his personnel file
On January 24, 1989, McConnell was suspended just a
few days after his foreman, Mickey Mullins, had warned
him that the Company was trying to get something on
him because of his union activities On January 23, Mc-
Connell neglected to change the settings on a gauge in
the control room when changing from the production of
3/8-inch board to 7/16-inch board About 6000 square
feet of 3/8-inch board was produced and then were
stamped as 7/16-inch board further down the production
line before this error was caught The board was
strapped in bundles but has not been sold and is sitting in
the factory awaiting a buyer 16 Like a similar offense at-
tnbuted to Vautnn, the production of a small amount of
substandard board is a routine occurrence at the Dun-
gannon plant, where 2 percent of the monthly produc-
tion is normally downgraded In this instance, the board
in question was not substandard nor was it destroyed or
damaged, it was simply mislabeled It can be properly la-
beled and sold along with similar product whenever the
Respondent chooses to do so However, this event gave
the Respondent one more opportunity to harass a leading
union adherent and it took the opportunity enthusiastical-
ly By suspending Larry McConnell in the manner de-
scribed above because of his union activities, the Re-
spondent violated Section 8(a)(1) and (3) of the Act
Dilworth admitted that there is a practice, involving
all of the 10 plants in his division, of evaluating employ-
ees once a year for possible increases, either in their base
rates or their incentive rates or both It is his position
that a wage evaluation is not the equivalent of a wage
increase and that sometimes his evaluations result in deci-
sions not to grant any increases At Dungannon, employ-
ees got an across-the-board base rate increase in August
1986, when the plant was not covered by an incentive
program, and again in October 1987, after the plant came
to be covered by an incentive program There was no in-
crease in the fall of 1988 for production and maintenance
employees at Dungannon, although employees at other
plants, such as Houlton, received increases upon being
evaluated, and salaried employees at Dungannon re-
ceived an increase as well in October 1988 Dilworth tes-
tified that he did evaluate Dungannon employees for an
increase in the fall of 1988 but decided against giving out
any raises, either in the base rate or the incentive rate,
because employees were doing so well under the incen-
tive program that an increase in their base rates would
16 Respondent mainly produced 7/16-inch board at Dungannon How-
ever, It produces 3/8-inch board at other plants and evidently must
produce some 3/8-Inch board at Dungannon since the error committed
by McConnell on January 23 was a failure to adjust the press from one
production mode to another Despite protestations by the Respondent
that the error had caused it great loss, there is no doubt that It can dis-
pose of this product just as It disposes of other 3/8-inch board which it
produces
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adversely affect their incentive earnings As noted, a dif-
ferent determination was made at that time respecting
Dungannon's salaried employees, who are also benefici-
aries of the plant's overall incentive program
For a period of 2 years, employees were told by an
array of supervisors that they would be evaluated each
fall in their base rates, and no distinction was ever drawn
between evaluation and pay increase Indeed, in common
industrial relations parlance, evaluation means pay in-
crease and the Respondent's employees were entitled to
assume as much Just before the representation election,
Chase told a group of employees that the Company
would not even talk about an increase in the fall if the
Union came into the plant In the summer of 1988, two
other supervisors told employees that the reason they
were not going to get an increase and the reason that the
employer was not going to reclassify any millwrights
and electricians was the fact that they had selected a
union These statements are enough to support a finding
that the withholding of increases in base rates in the fall
of 1988 to Dungannon's rank-and-file employees was dis-
criminatorily motivated However, the General Counsel
has not elected to prosecute the case on that theory, so
no finding of a discriminatory witholdmg of an increase
will be made
Instead, the General Counsel has elected to complain
that the Respondent withheld increases in base rates in
the fall of 1988 in derogation of its duty to bargain with
the Union In the fall of 1988, the Union was the duly
designated collective-bargaining representative of the
production and maintenance employees in the Respond-
ent's Dungannon plant The fact that the Respondent
had elected to challenge the results of the representation
election and to delay the certification of the Union for 14
months in no way excused it from its duty to bargain
while objections to the election were pending Advertis-
er's Mfg Go, 294 NLRB 740 (1989) Respondent did, in
fact, have a practice of granting increases in the base
rates of the Dungannon employees, in the fall of each
year, both before and after the implementation of an in-
centive wage program It unilaterally discontinued this
practice at Dungannon, at least as far as bargaining unit
employees were concerned Whether the discontinuance
of the practice and the withholding of an increase was
motivated by discrumnatory reasons, by good or bad
business judgment, or was merely an attempt to do the
best thing possible for Dungannon employees as Dil-
worth suggested, the decision was a mandatory subject
for negotiations with the Union Having failed to bargain
collectively in good faith with respect to this decision,
the Respondent violated Section 8(a)(1) and (5) of the
Act
On the foregoing findings of fact and on the entire
record considered as a whole, I make the following
CONCLUSIONS OF LAW
1 Louisiana-Pacific Corporation is now and at all
times material has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act
2 United Brotherhood of Carpenters, Mid-Atlantic In-
dustrial Council, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act
3 All regular full-time and regular part-time produc-
tion and maintenance employees, truckdnvers, and bull-
dozer operators employed by the Respondent at its Dun-
gannon, Virginia plant, excluding office clerical employ-
ees, guards, and supervisors as defined in the Act consti-
tute a unit appropriate for collective bargaining within
the meaning of Section 9(b) of the Act
4 At all times material, the Union has been the exclu-
sive collective-bargaining representative of all of the em-
ployees in the unit found appropriate in Conclusion of
Law 3 for the purpose of collective bargaining within
the meaning of Section 9(a) of the Act
5 By failing and refusing to bargain collectively m
good faith with the Union concerning its decision to dis-
continue the practice of granting to employees annual in-
creases in their base rates and by unilaterally withholding
such increases, the Respondent violated Section 8(a)(5)
of the Act
6 By issuing oral or written warnings to Richard Vau-
tnn and Larry McConnell in reprisal for the union ac-
tivities and because of their union sympathies, and by
suspending and later discharging Richard Vautnn and
suspending Larry McConnell because of their union ac-
tivities and union sympathies, the Respondent violated
Section 8(a)(3) of the Act
7 By engaging in the unfair labor practices set forth
above in Conclusions of Law 5 and 6, by telling employ-
ees that they would not receive a wage increase and
would not be reclassified because they had selected the
Union as their collective-bargaining representative, by
prohibiting employees from wearing union insignia at the
plant, and by telling employees that they would be close-
ly watched because of their union activities, the Re-
spondent violated Section 8(a)(1) of the Act
8 The aforesaid unfair labor practices have a close, in-
timate, and adverse effect on the free flow of commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
REMEEN
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend to the
Board that it be required to cease and desist therefrom
and to take certain affirmative actions designed to effec-
tuate the purposes and policies of the Act Because this
Respondent has evidenced a contmuing disposition to
violate the rights of its employees and to evade its obli-
gations under the Act, I will recommend a so-called
broad 8(a)(1) remedy which is designed to suppress any
and all violations of the Act Hickmott Foods, 242 NLRB
1357 (1979) I will recommend that the Respondent be
required to offer full and immediate reinstatement to
Richard Vautnn to his former or substantially equivalent
employment, without prejudice to his seniority or to
other benefits he previously enjoyed, and to make him
and Larry McConnell whole for any loss of pay or bene-
fits which they may have suffered by reason of the dis-
criminations found in this case, in accordance with the
LOUISIANA-PACIFIC CORP 29
formula set forth in the Woolworth case," with interest
thereon computed at the short-term Federal rate used to
compute interest on underpayments and overpayments of
federal income taxes under the Tax Reform Act of 1986
New Horizons for the Retarded, 283 NLRB 1173 (1987) I
will also recommend that the Respondent be required to
expunge from the personnel records of Vautnn and Mc-
Connell any and all memoranda and disciplinary warn-
ings which were placed there in violation of the Act,
and that the Respondent be required to post the usual
notice advising its employees of their rights and of the
results in this case
The General Counsel requests that I recommend that
the Respondent be required to bargain with the Union
on request respecting wages, hours, and terms and condi-
tions of employment, and that the Respondent be re-
quired to grant to its Dungannon bargaining unit em-
ployees an increase in their base rates "consistent with its
1987 increases or in an amount agreed upon by it and the
Union" I have no reluctance in recommending a remedi-
al order requiring bargaining in good faith and prohibit-
ing the Respondent from making unilateral changes in
wages, hours, and terms and conditions of employment,
including the unilateral withholding of an annual increase
in base rates However, I feel precluded from recom-
mending an affirmative remedy which would require the
Respondent to grant an increase in wages "consistent
with its 1987 increases" to Dungannon employees since
that would be equivalent to compelling the Company
and the Union to agree to a substantive contractual pro-
vision of a collective-bargaining agreement, a power
withheld by Congress from the Board under the Act
H K Porter v NLRB, 397 U S 99 (1970)
On the basis of these findings of fact and conclusions
of law and on the entire record considered as a whole, I
make the following recommended"
ORDER
Respondent Louisiana-Pacific Corporation, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Unilaterally withholding annual increases in base
rates from production and maintenance employees em-
ployed by the Respondent at its Dungannon, Virginia
plant, or unilaterally changing any wages, hours, or
terms and conditions of employment of the employees
(b) Refusing to bargain collectively in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of its Dungannon, Virginia production and
maintenance employees
(c) Informing employees that they will not receive
wage increases or job reclassifications because they se-
lected the Union as their collective-bargaining represent-
ative
(d) Prohibiting employees from wearing union insignia
at the plant
F W Woolworth Co, 90 NLRB 289 (1950)
19 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(e) Informing employees that they will be closely
watched because of their union activities
(f) Issuing oral or written warnings to employees in re-
prisal for their union activities and union sympathies
(g) Discouraging membership in or activities on behalf
of United Brotherhood of Carpenters, Mid-Atlantic In-
dustrial Council, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO or any other labor orga-
nization by placing illegal warnings in employee person-
nel files, by suspending or discharging employees, or by
otherwise discnmmatmg against employees in their hire
or tenure
(h) By any other means or in any other manner inter-
fering with, restraining, or coercing employees in the ex-
ercise of rights guaranteed to them by Section 7 of the
Act
2 Take the followmg affirmative action necessary to
effectuate the policies of the Act
(a) On request, bargain collectively with United Broth-
erhood of Carpenters, Mid-Atlantic Industrial Council,
United Brotherhood of Carpenters and Jomers of Amer-
ica, AFL-CIO as the exclusive collective-bargaining rep-
resentative of as Dungannon, Virginia production and
maintenance employees and, if agreement is reached,
embody the agreement in a signed, written contract
(b) Offer to Richard Vautnn full and immediate rein-
statement to his former or substantially equivalent em-
ployment
(c) Remove from the personnel records of Richard
Vautnn and Larry McConnell all disciplinary warning
notices and related memoranda, and inform the employ-
ees in writing that it has taken this action and that the
disciphniry warning notices and related memoranda will
not be used as the basis for future discipline
(d) Make whole employees for any loss of pay or ben-
efits which they have suffered by reason of the discrimi-
nations found herein, in the manner described above in
the remedy section
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll and other records necessary to analyze the amounts
of backpay due under the terms of this Order
(f) Post at the Respondent's Dungannon, Virginia plant
copies of the attached notice marked "Appendix "19
Copies of the notice, on forms provided by the Regional
Director for Region 11, after bemg signed by Respond-
ent's authorized representative, shall be posted immedi-
ately upon receipt and maintained by the Respondent 60
consecutive days in conspicuous places, including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that said notices are not altered, defaced, or
covered by any other material
(g) Notify the Regional Director in wntmg within 20
days from the date this Order what steps the Respondent
has taken to comply
19 If 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 Nation-
al 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"