Arkema, Inc.

National Labor Relations Board - Board Decisions

Oct 28, 2011

357 N.L.R.B. 1248 (N.L.R.B. 2011)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
357 NLRB No. 103
1248
Arkema, Inc. and United Steelworkers of America,
Local 13-227

Arkema, Inc. and Greg Schull and United Steelwork-
ers of America, Local 13-227. Cases 16–CA–
026371, 16–CA–026392, and 16–RD–001583
October 31, 2011
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS BECKER
AND HAYES
On September 17, 2009, Administrative Law Judge
Michael A. Marcionese issued the attached decision.
The Respondent filed exceptions and a supporting brief,
the General Counsel filed an answering brief, and the
Respondent filed a reply brief. The General Counsel
filed cross-exceptions and a supporting brief, and the
Respondent filed an answering brief. Finally, the Union
filed a letter adopting the General Counsel’s position in
its entirety.
The National Labor Relations Board has considered
the decision and record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified.2
1. We agree with the judge that the Respondent vio-
lated Section 8(a)(1) of the Act on July 22, 2008, by issu-
ing employee Mark Saltibus a written reminder for en-
gaging in the protected activity of urging fellow employ-
ee Susan Russell to support the Union in an upcoming
decertification election.3 On July 21, in the course of
urging Russell to back the Union, Saltibus told her that,
if there were no union, “there’s no support [and] the rela-
tionship’s going to change.” Russell told Chief Operator

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
In the absence of exceptions, we adopt pro forma the judge’s rec-
ommendation to overrule the Union’s Objections 1, 3, 5, 6, 9, 10, 12,
18, 19, 20, and 22. The judge sustained the Union’s Objections 2, 4, 7,
and 8 because they were consistent with the unfair labor practices
found by the judge. We adopt the judge’s recommendation to sustain
these objections as we have affirmed the related unfair labor practices
found by the judge.
There are no exceptions to the judge’s denial of the General Coun-
sel’s request to conform the pleadings to include an allegation that the
Respondent unlawfully interrogated employee David Pope.
2 We shall modify the judge’s recommended Order to provide for the
posting of the notice in accord with J. Picini Flooring, 356 NLRB 11
(2010), enfd. ___ F.3d ___, No. 08-17089, 2011 WL 3796272 (9th Cir.
Aug. 29, 2011).
3 All subsequent dates are in 2008.
Randy Joy about this conversation, and he reported it to
Site Manager Terry Freeman.
The following day, Freeman gave Saltibus a “written
reminder” for “Violation of Company Harassment Poli-
cy.” The Respondent’s harassment policy prohibits “any
unwanted attention or unwanted behavior [that is] en-
gaged in because of a person’s sex, race, color, religion,
national origin, age, disability, sexual orientation, or
gender identity” and that meets certain additional crite-
ria.4 The written reminder described Saltibus’ violations
as “making intimidating and threatening remarks toward
a coworker and creating an offensive working environ-
ment.” The written reminder also accused Saltibus of
“threatening [Russell’s] job if she continued to pursue
her non-union status.” Additionally, the written remind-
er cited “a separate occasion” on which Saltibus alleged-
ly “made threatening and inappropriate remarks to a la-
boratory employee concerning her wishes to not join the
Union.” The reminder did not provide the name of the
laboratory employee, state when the alleged incident
occurred, or give any other specifics, and Freeman re-
fused to tell Saltibus anything more about this allegation.
The written reminder concluded by stating that these
incidents were “wholly unacceptable and [would] not be
tolerated” and that Saltibus’ failure to comply with the
Respondent’s expectations regarding employee miscon-
duct might “result in the termination of [his] employ-
ment.”
Correctly applying the analytical framework of NLRB
v. Burnup & Sims, 373 U.S. 21 (1964), the judge found,
and we agree, that the Respondent did not have an honest
belief that Saltibus engaged in misconduct during the
protected conversation with Russell. The judge credited
Saltibus’ testimony that all he said to Russell was: “if
there were no union, there would be no support and that
their relationship would change.” Saltibus made no ref-
erence to Russell’s sex and did not threaten her on that
basis, based on her union sentiments, or in any other
manner. According to the credited testimony, he did
nothing that could conceivably be considered to have
created an offensive working environment. The judge
also noted that the Respondent rushed to judgment by
issuing the written reminder almost immediately after
Freeman learned of Russell’s conversation with Saltibus,
in fact, preparing it before company managers met with
Saltibus to get his side of the story (even though it stated
that Respondent had “completed its investigation”). This
procedure was contrary to the Respondent’s past prac-

4 Those criteria are: “(1) Involv[ing] a stated or implicit threat to a
person’s employment status; (2) [Having] the purpose or effect of inter-
fering with a person’s work performance; or, (3) Creat[ing] an intimi-
dating or offensive work environment.”
ARKEMA, INC. 1249
tice. Finally, the Respondent included as an additional
basis for the warning a stale allegation concerning a la-
boratory employee, allegedly occurring 9 months earlier,
about which Saltibus had never previously been in-
formed. Indeed, the Respondent had never investigated
these allegations and Freeman refused to permit Saltibus
to address them. The Respondent did not simply decline
to permit Saltibus “to debate” the incident, as our dis-
senting colleague suggests, it refused to identify the al-
leged victim, to inform Saltibus when the alleged inci-
dent took place, or provide any of the ordinary infor-
mation that would have given him a fair chance to defend
himself. In sum, the procedures used in issuing the
warning were suspect and inconsistent with the Re-
spondent’s own past practice.
The judge also found, and we agree, that even assum-
ing arguendo that the Respondent had an honest belief
that Saltibus engaged in misconduct during his protected
conversation, there was nevertheless a violation under
Burnup & Sims because the alleged misconduct did not
in fact occur. Although the Respondent issued the writ-
ten reminder to Saltibus for “Violation of Company Har-
assment Policy,” it failed to even assert that Saltibus’
alleged actions related to “sex, race, color, religion,” or
any of the other classifications covered by the harass-
ment policy. In particular, the written reminder made no
mention of harassment based on gender, and, in any case,
the judge credited Saltibus’ testimony that he never told
Russell that he would refuse to help her because she was
a woman. Our dissenting colleague’s suggestion that the
Respondent placed Saltibus’ harassment of Russell into
the closest category it could find is misplaced because
the judge correctly found that there was no harassment as
defined in the policy (i.e., the alleged misconduct did not
occur), nor harassment of any kind. Finally, an accusa-
tion of sexual or racial harassment justifiably carries a
peculiar stigma and there is no question here that Salti-
bus engaged in no misconduct meriting that stigma.
We reject our dissenting colleague’s assertion that the
Board’s decision in Contempora Fabrics, Inc., 344
NLRB 851 (2005), warrants reversing the judge. There,
the Board found that an employer, consistent with a
preexisting policy against threatening or abusive lan-
guage, lawfully disciplined a male employee, Lambert,
after a female colleague reported that Lambert told her
that she “had better not vote ‘no’ for the union.” Id. at
852. Lambert had a prior history of serious misconduct,
including a domestic violence conviction and threatening
another employee. The Board found that Lambert’s
comment, accentuated by his history of serious miscon-
duct, was an unprotected warning that the female em-
ployee would face negative consequences for not sup-
porting the union. In addition, the evidence showed that
the employer had previously disciplined 32 other em-
ployees under the same policy that it applied to Lambert.
Under those circumstances, the Board found that the em-
ployer had a good-faith basis for relying on the female
employee’s report to discipline Lambert.
Contempora Fabrics is obviously distinguishable from
the instant case. Saltibus was a model employee with no
history of misconduct of any kind, much less sexual har-
assment. The Respondent did not maintain a consistently
applied general policy prohibiting abusive or threatening
language. Rather, it attempted to shoehorn this incident
into its harassment policy, which apparently had not been
applied to similar instances in the past. Moreover, while
Saltibus did tell Russell “if there were no union, there
would be no support and that their relationship would
change,” the judge, who heard the testimony and credited
Saltibus, found that there was no threat or promise of
retribution if Russell did not support the Union.5
Rather than focus on what Saltibus actually said to
Russell, the dissent relies on Saltibus’ testimony at the
hearing about what he meant by his statement. However,
even this does not support our colleague’s conclusion.
Saltibus testified that he intended to convey to Russell
that, if the Union went away, he would not help her do
her job as he had in the past and would not “carry her
load.” The dissent then conflates Saltibus’ actual mes-
sage and his intended message as somehow establishing
a threat to Russell’s job and physical safety. However,
Saltibus also credibly testified that he did not intend to
suggest he would not help Russell in an emergency or
that he would not fully perform his duties when he was
the step-up chief. The judge found that no testimony
supported the Respondent’s claim that Saltibus threat-
ened Russell’s job if she did not support the Union. The
dissent sets forth no basis for overruling the judge’s cred-
ibility findings. The dissent’s assertion that “Saltibus
admitted threatening Russell with adverse and unpleasant
consequences if she failed to support the Union” is thus
misguided.

5 This case is also readily distinguishable from other cases on which
our dissenting colleague relies. In BJ’s Wholesale Club, 318 NLRB
684 (1995), the employee who was lawfully disciplined repeatedly
interrupted a coworker during her worktime to try to persuade her to
sign a union authorization card after she requested that he stop. In PPG
Industries, 337 NLRB 1247 (2002), the employee, shouting, used vul-
gar terms to tell a coworker she was being taken advantage of while he
solicited her to sign an authorization card. In Trus Joist MacMillan,
341 NLRB 369 (2004), an employee lost the protection of the Act when
he called a manager a “lying bastard” and a “prostitute” and grabbed
his own crotch. By contrast, in the present case, Saltibus engaged in no
such behaviors.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1250
The General Counsel demonstrates that, at most, Salti-
bus informed Russell that decertification would affect
their relationship as coworkers and that, as a result, he
would not continue to assist her with what were properly
her job duties. The General Counsel thus proved that
Saltibus did not engage in the misconduct he was cited
for or, in fact, any misconduct at all. Accordingly, we
adopt the judge’s findings and his conclusion that the
Respondent’s July 22 discipline of Saltibus violated Sec-
tion 8(a)(1).6
2. We also adopt the judge’s finding that the Re-
spondent violated Section 8(a)(1) by issuing a July 23
letter prohibiting harassment and other similar conduct.
This letter prohibited employees from being “harassed,
intimidated or threatened in any way . . . by anyone, in-
cluding the union, for refusing to support a strike or cer-
tification” and asked that employees contact management
if “you feel you have been subjected” to such prohibited
conduct. We agree with the judge’s determination that
this letter was unlawful under the standard established in
Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004).
Under Lutheran Heritage, an employer rule that does
not explicitly restrict protected activity, may still be
found to violate Section 8(a)(1) of the Act if: “(1) em-
ployees would reasonably construe the language to pro-
hibit Section 7 activity; (2) the rule was promulgated in
response to union activity; or (3) the rule has been ap-
plied to restrict the exercise of Section 7 rights.” Id. at
647. Applying this standard, we agree with the judge
that the Respondent’s letter was unlawful.
First, employees would reasonably interpret the letter’s
broad prohibition against any prounion “harassment” as
including persistent union solicitation protected by Sec-
tion 7 of the Act.7 Posted during the critical period, the
letter prohibits harassment “in any way” and explains
that the Respondent will not tolerate “any activity of this
type.”8 In addition to this broad prohibition, the letter

6 We find it unnecessary to determine whether the Respondent also
violated Sec. 8(a)(3) because such a finding would not affect the reme-
dy. See Roadway Express, Inc., 355 NLRB 197, 205 (2010).
7 The Board has long held that an employer’s dissemination of a har-
assment or threat policy, during a union campaign, “has the potential
dual effect of encouraging employees to report to Respondent the iden-
tity of union card solicitors who in any way approach employees in a
manner subjectively offensive to the solicited employees, and of corre-
spondingly discouraging card solicitors in their protected organization
activities.” W. F. Hall Printing Co., 250 NLRB 803, 804 (1980), quot-
ing Colony Printing & Labeling, Inc., 249 NLRB 223, 225 (1980),
enfd. 651 F.2d 502 (7th Cir. 1981).
8 The dissent, attempting to paint the letter as benign, emphasizes
that it prohibits harassment “in any way” by “anyone” but fails to note
that this prohibition does not apply to harassment for engaging in pro-
union activities but only to harassment for refusing to engage in proun-
also invokes the subjective reactions of employees by
inviting them to report conduct simply if they “feel” they
have been harassed. Moreover, this letter was not posted
in a context free of unfair labor practices.
We affirm the judge’s finding that the letter is unlaw-
ful also because it was promulgated in response to union
activity. As noted above, the letter was issued during the
critical period at a time when the Respondent was well
aware of the decertification campaign and the efforts by
union adherents to oppose it. By its terms, the letter ref-
erences, and prohibits, only harassment of employees
opposed to the Union (i.e., employees “refusing to sup-
port a strike or certification”). As such, it is clearly dis-
tinguishable from the prohibition against “abusive and
profane language” at issue in Lutheran Heritage, supra,
which both predated any union activity and by its terms
applied to all conduct of that character—not, as here,
only to conduct on the part of prounion employees.
3. Because the Respondent’s discipline of Saltibus and
its July 23 letter both violate Section 8(a)(1), we also
affirm the judge’s determination that these critical period
violations warrant setting aside the election. See Dal-
Tex Optical Co., 137 NLRB 1782, 1786–1787 (1962)
(“[c]onduct violative of Section 8(a)(1) is, a fortiori,
conduct which interferes with the exercise of a free and
untrammeled choice in an election.”) (emphasis in origi-
nal).
We also adopt the judge’s determination that the Re-
spondent violated Section 8(a)(5) and (1) when, after the
decertification election, while the Union’s objections
were still pending and a certification had yet to issue, the
Respondent withdrew recognition from the Union, re-
fused to recognize and bargain with the Union, made a
host of unilateral changes, and directly dealt with unit
employees.
4. Finally, we agree with the judge’s application of
Wright Line9 to determine that the Respondent violated
Section 8(a)(3) and (1) by orally reprimanding employee
Fred Shepherd on August 19 and then issuing him a writ-
ten confirmation letter on September 5.
Contrary to our dissenting colleague, we have no diffi-
culty concluding that the oral reprimand and written
warning constitute disciplinary actions sufficient to es-
tablish an 8(a)(3) violation. The Board considers a warn-

ion activities, i.e., “refusing to support a strike or certification.” For
this reason, River’s Bend Health & Rehabilitation Services, 350 NLRB
184 (2007), and Stanadyne Automotive Corp., 345 NLRB 85 (2005),
vacated 520 F.3d 192 (2d Cir. 2008), on which the dissent relies, are
distinguishable, because in both cases harassment in general, not solely
harassment for refusing to engage in prounion activities, was prohibit-
ed.
9 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
ARKEMA, INC. 1251
ing to be an adverse disciplinary action if the warning
could lay the “foundation for future disciplinary action.”
See Trover Clinic, 280 NLRB 6, 16 (1986). During
Shepherd’s August 19 oral reprimand, the Respondent
presented Shepherd with reports of serious alleged mis-
conduct and then warned him not to create a hostile work
environment. That warning was then memorialized in
writing in a letter the Respondent admits placing in
Shepherd’s official personnel file for future reference.
The letter states on its face that verified reports of mis-
conduct “could lead to further disciplinary action up to
and including termination.” As the judge noted, the Re-
spondent’s own witness was unable to explain why he
used the phrase “further disciplinary action” if the letter
itself was not a form of discipline. We therefore agree
with the judge that the Respondent’s August 19 oral rep-
rimand and its September 5 confirmation letter both es-
tablished a foundation for future disciplinary action
based upon protected conduct and violated Section
8(a)(3).
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Arkema,
Inc., Houston, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the recommend-
ed Order as modified.
Substitute the following for paragraph 2(e).
“(e) Within 14 days after service by the Region, post at
its Houston, Texas facility, copies of the attached notice
marked “Appendix.”25 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since July 22, 2008.”

MEMBER HAYES, dissenting.
As the Board has previously recognized, and review-
ing courts have not hesitated to remind us, employers
have a legitimate and substantial interest in protecting
employees from violence and intimidation and ensuring a
civil, orderly, and respectful workplace.1 To this end,
employers routinely adopt and enforce through discipli-
nary measures prohibitions against threats, harassment,
or other conduct that may contribute to the establishment
of a hostile work environment.2 Our precedent makes
clear that such workplace misconduct may be prohibited,
even in the context of otherwise protected concerted ac-
tivity.3 Thus, unlike my colleagues, I would find that the
Respondent’s restrained and measured response to re-
ports of threats and harassment during the course of a
decertification campaign did not violate the Act. I re-
spectfully dissent.
A. The Respondent Lawfully Disciplined Saltibus
for Threatening a Coworker
1. Pertinent facts
The Respondent operates a chemical manufacturing
plant, where safety and collaboration are of paramount
importance. Mark Saltibus, an ardent supporter of the
Union, worked as a utility operator, a position in which

1 See Lutheran Heritage Village-Livonia, 343 NLRB 646, 647
(2004) (agreeing that “employers have a legitimate right to establish a
‘civil and decent work place,’” and to adopt prophylactic rules banning,
inter alia, abusive or profane language, to protect themselves from civil
liability under state and federal employment laws) (quoting Adtranz
ABB Daimler-Benz Transportation, N.A., Inc. v. NLRB, 253 F.3d 19,
25–27 (D.C. Cir. 2001). In Adtranz, the D.C. Circuit refused to enforce
the Board’s finding that the maintenance of a rule prohibiting abusive
or profane language violated the Act. In so holding, the court chastised
the Board for its “remarkabl[e] indifferen[ce] to the concerns and sensi-
tivity which prompt many employers to adopt the sort of rule at issue,”
and characterized the Board’s position as “simply preposterous,” noting
that “[i]t defies explanation that a law enacted to facilitate collective
bargaining and protect employees’ right to organize prohibits employ-
ers from seeking to maintain civility in the workplace.” 253 F.3d at
27–28.
2 See, e.g., Adtranz, supra at 27 (“Given [the current] legal environ-
ment, any reasonably cautious employer would consider adopting the
sort of prophylactic measure contained in the Adtranz employee hand-
book. . . . Under current law, the ‘only reliable protection is a zero-
tolerance policy, one which prohibits any statement that, when aggre-
gated with other statements, may lead to a hostile work environment.’”)
quoting Eugene Volokh, What Speech Does ‘Hostile Work Environ-
ment’ Harassment Law Restrict?, 85 Geo. L.J. 627, 638–639 (1997).
3 See, e.g., BJ’s Wholesale Club, 318 NLRB 684, 684 fn. 2 (1995)
(employee lawfully disciplined for harassing another employee during
the course of soliciting authorization cards); PPG Industries, 337
NLRB 1247, 1247 fn. 2 (2002) (male employee lawfully disciplined for
sexual harassing a female during the male employee’s solicitation of
authorization cards); Trus Joist MacMillan, 341 NLRB 369, 370–372
(2004) (employee lost the protection of the Act because of his indefen-
sible and abusive conduct during a meeting with managers).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1252
he substituted for other operators who were on vacation
or out sick. Saltibus also served as a “step-up chief,”
meaning he filled in for the “chief operator” when ab-
sent. Though the chief operator is a nonsupervisory bar-
gaining unit position, employees holding that classifica-
tion direct and assist other operators and are the highest
ranking employees at the plant in the absence of the site
and operations managers.
Susan Russell worked with Saltibus as a plant opera-
tor. As the judge found, there is no dispute that the job
of plant operator can be physically demanding, and Rus-
sell testified without contradiction that she required
physical assistance from male coworkers in order to per-
form certain essential functions of her job. On July 21,
Saltibus approached Russell to discuss the upcoming
decertification election and solicit her support for the
Union. When Russell was noncommittal in response,
Saltibus threatened her. The precise words he used were
disputed at the hearing,4 but the import of them was not.
Saltibus admitted that he told Russell that if the Union
went away “there’s no support . . . the relationship’s go-
ing to change.” Saltibus also admitted that the import of
this message was that he would not help her to do her job
as he had in the past, and would not “carry her load” in
the plant. Russell testified that she feared for her safety
and interpreted Saltibus’ statement as a threat that if she
did not support the Union, her male colleagues would no
longer assist her, including in an emergency situation
such as a fire. Russell relayed the conversation to Mark
Wells, another operator who was training her, and Wells
suggested that Russell report the incident to Chief Opera-
tor Randy Joy. Joy, in turn, called Site Manager Terry
Freeman, with whom Russell met. Russell later signed a
statement prepared by Freeman to document the incident.
The next day, the Respondent met with Saltibus and
his union representative to discuss this incident. Saltibus
admitted during the investigatory interview that he told
Russell that their relationship would change if there were
no union. He also confirmed the import of this statement:
that Russell needed his help to do her job but that if there
was no union Russell would have to “carry her own
weight” and that he would no longer do her job for her.5
He denied that he meant to imply that he would no long-
er assist Russell when acting as chief operator or that he

4 Dennis Van Wye, Saltibus’ and Russell’s supervisor, testified that
Russell reported that Saltibus made his statement only after Russell told
Saltibus that she was voting against the Union. The judge cited this
testimony, but did not make a credibility finding. The judge did credit
Saltibus’ account of the confrontation with Russell, declining to find, as
Russell testified, that Saltibus referenced her gender when stating that
he would no longer assist her if the Union was voted out.
5 As noted above, the judge credited Saltibus’ version of what tran-
spired during his conversation with Russell.
would abandon her in an emergency. After meeting with
Saltibus, the Respondent issued him a “written reminder”
stating that Saltibus had made intimidating and threaten-
ing remarks towards a coworker that created an offensive
working environment in violation of company policy.
The reminder characterized his conduct as an unprofes-
sional threat directed at Russell if she continued to pur-
sue her nonunion status. The reminder also referenced
an earlier, unspecified incident in which Saltibus alleged-
ly made similar statements to another employee. The
Respondent declined to discuss this other incident with
Saltibus during the meeting. Finally, the reminder ad-
vised Saltibus to reflect on the incident, and cautioned
that a failure to comply with the Company’s antiharass-
ment policies could result in the termination of his em-
ployment.
2. Analysis
As noted by my colleagues, the pertinent standard is
NLRB v. Burnup & Sims.6 Under that analytical frame-
work, an employer that disciplines an employee for mis-
conduct arising out of protected activity bears the initial
burden of showing that it had an honest belief that the
employee engaged in misconduct during the course of
the protected activity. Roadway Express, Inc., 355
NLRB 197, 205 (2010). If the employer meets this bur-
den, the burden then shifts to the General Counsel to
affirmatively show that the misconduct did not in fact
occur. Id. If the General Counsel fails to meet this bur-
den, the employer’s discipline does not violate Section
8(a)(1). See id.
The Respondent clearly carried its initial burden of
proof. Russell testified without contradiction that she
could not perform her job without the physical assistance
of her male coworkers, and there is no dispute that, prior
to the decertification election, her coworkers provided
such assistance to her on a regular basis. Further, there is
no dispute, indeed Saltibus admitted it, that he intended
to withhold this necessary assistance from Russell in the
future if the Union was voted out. Both Russell and the
Respondent plainly understood this admitted intention.
And while Saltibus qualified at the hearing that he did
not mean to imply that he or others would refuse to assist
Russell in the event of an emergency, he offered no such
explanation to Russell, who testified that she feared for
her safety as a result of the conversation and voluntarily
relayed the incident to the Respondent’s management. In
light of the undisputed facts and sequence of events, the
Respondent plainly possessed an honest, good-faith be-
lief that Saltibus, as Russell reported, threatened to retal-
iate against her because of her exercise of Section 7

6 379 U.S. 21 (1964).
ARKEMA, INC. 1253
rights by withholding assistance that could jeopardize
both Russell’s continued employment and her physical
safety within the plant.
The threat at issue is plainly one which, under extant
precedent, would cause Saltibus’ otherwise protected
solicitation of support for the Union to lose the protec-
tion of the Act. See, e.g., Contempora Fabrics, Inc., 344
NLRB 851, 852 (2005) (prounion employee’s comment
to another employee—that she “had better not vote ‘no’
for this union”—was “an implicit warning that unpleas-
ant consequences would flow from a ‘no’ vote” and was
sufficient to cause the loss of the Act’s protection). In-
deed, Saltibus’ threat was far more direct and pointed
than the “implicit warning” found unprotected in Con-
tempora Fabrics, Inc., and was particularly coercive giv-
en his leadman status, the physically demanding nature
of the plant operator position, Russell’s ongoing need for
assistance, and the hazardous work environment in a
chemical manufacturing plant. There simply is no Sec-
tion 7 right to threaten to retaliate against a fellow em-
ployee by making his or her job more difficult or danger-
ous if he or she does not support your position on unioni-
zation. Saltibus was in a position to make good on his
admonition to Russell, which was objectively threatening
and coercive under the circumstances.7
The burden therefore shifted to the General Counsel to
establish that despite the Respondent’s good-faith belief,
no misconduct actually occurred. The General Counsel
could not carry that burden because Saltibus admitted
threatening Russell with adverse and unpleasant conse-
quences if she failed to support the Union. Thus, the
misconduct was admitted, it was unprotected, and the
discipline against Saltibus was lawfully imposed.
Contrary to the judge and my colleagues, I find noth-
ing inappropriate or unusual in the Respondent’s invoca-
tion of its antiharassment policy in disciplining Saltibus.
That policy prohibits “unlawful harassment” because of
an employee’s protected characteristics, including, but
not necessarily limited to, gender. Among other things,

7 My colleagues suggest that Saltibus did not make a direct threat or
promise of retribution if Russell did not support the Union because he
told her only that there would be no support and their relationship
would change. Presumably, they view this statement as too vague to
constitute an actionable threat. As shown above, that view cannot be
reconciled with the holding in Contempora Fabrics. Moreover, both the
Respondent and Russell plainly, and reasonably, understood the state-
ment to mean just what Saltibus later admitted it meant: that he would
not help her do her job or “carry her load.” Further, Saltibus made clear
at the investigatory interview that he intended to follow through on that
intention given the opportunity. Under these circumstances, and con-
sistent with the judge’s credibility resolutions in this case, the Re-
spondent was entitled to take Saltibus at his word. The majority, in
contrast, offers no persuasive justification for overlooking Saltibus’
admitted intentions in their disposition of this case.
the policy defines “unlawful harassment” to include “a
stated or implicit threat to a person’s employment sta-
tus.” Saltibus’ threat reasonably could be viewed as im-
plicating the policy because it targeted a female employ-
ee who relied on male employees’ assistance to perform
her job. The threat also obviously qualified as a
“threat[s] to a person’s employment status,” because
Russell could not perform her job without the assistance
of male coworkers. The fact that the judge or my col-
leagues conclude that the policy does not cover the con-
duct at issue does not mean that the Respondent lacked a
good-faith belief that it did. Moreover, it is by no means
uncommon for employers in meting out discipline to cite
every possible basis therefore. Nor am I surprised that
the Respondent declined to engage Saltibus in a debate
over the specifics of the prior incident referenced in the
written reminder; the focus of the meeting was the threat
against Russell. Finally, even if Saltibus’ threat was not
covered by the specific terms of the antiharassment poli-
cy, it was still unprotected and thus a valid basis for dis-
cipline.
Equally unpersuasive is the judge’s finding, adopted
by my colleagues, that the manner in which the Re-
spondent conducted its investigation somehow detracts
from the Respondent’s good-faith belief that Saltibus
engaged in misconduct. The judge characterized the
investigation as a “rush to judgment,” citing the fact that
the Respondent issued the discipline “almost immediate-
ly,” interviewed only Russell before meeting with Salti-
bus, drafted the written reminder before meeting with
Saltibus, and cited a prior incident of reported miscon-
duct which it declined to debate with Saltibus during the
investigatory interview. However, prompt investigation
and response to reports of workplace threats and harass-
ment are not only typical, they are required by law to
protect against civil liability. Moreover, the Respondent
interviewed Russell, took her statement, and offered Salt-
ibus every opportunity to rebut Russell’s complaint—
which he instead effectively admitted. In light of that,
and given that there were no witnesses to the confronta-
tion, there was no need for the Respondent to investigate
further.8 Moreover, the fact that the Respondent drafted
the written reminder before meeting with Saltibus
demonstrates nothing; it was issued to him only after he
corroborated the essential elements of Russell’s account,
and the Respondent followed the same practice in other

8 The judge identifies no other relevant witness that should have
been interviewed nor offers anything material that the Respondent
might have uncovered had it investigated the matter differently.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1254
investigations.9 Thus, nothing about the investigation
undermines the Respondent’s good faith.
Finally, in support of his conclusion that the Respond-
ent lacked a good-faith belief that Saltibus engaged in
misconduct, the judge cited what he perceived to be dis-
parate treatment between the manner in which the Re-
spondent responded to Russell’s report and its investiga-
tion of employee Madonna Trevino’s complaint that she
felt harassed by antiunion employees who solicited her
signature on a decertification petition. In fact, however,
the differences between the two situations were marked.
Trevino never brought her complaints to management;
rather they were relayed second hand by Union President
Shepherd. Moreover, unlike Russell, Trevino did not
report a threat; she stated only that fellow employees
were persistent in asking her to sign the decertification
petition, which she did not want to do. That conduct, the
mere persistent solicitation of support, unlike a threat of
retaliation, is not prohibited by the Respondent’s anti-
harassment policy, and is protected concerted activity
under the Act. Far from undermining the Respondent’s
good faith, the purported disparity in treatment reflects
the Respondent’s understanding of and adherence to the
law. I would dismiss this complaint allegation.
B. The Respondent Lawfully Cautioned Employees
to Behave Appropriately and Report
Threats or Harassment
On July 23, 2 days after Saltibus’ threat to Russell,
Plant Manager Wendal Turley issued a letter notifying
employees of the decertification election and encourag-
ing them to read an NLRB election pamphlet and soon-
to-be posted NLRB election notices, which would pro-
vide employees information about their legal rights. The
contested portion of this letter stated that employees had
“the right to not be harassed, intimidated, or threatened
in any way—physically or verbally—by anyone, includ-
ing the union, for refusing to support a strike or certifica-
tion.” Turley explained that “[a]ny activity of this type
will not be tolerated. . . .” and that “[i]f you feel you have
been subjected to harassment, intimidation or threats,”
employees should contact human resources or call the
local NLRB office, whose phone number Turley provid-
ed. Finally, Turley stated that he did not feel that em-
ployees needed a union, but assured them that “the out-
come of this election will be your decision” and encour-
aged them to “utilize the time to decide what is best for
you as an individual.”

9 The judge found the Respondent prepared a similar written re-
minder prior to an investigatory meeting with employee Fred Shepherd,
but decided not to issue the reminder after Shepherd denied in the in-
terview engaging in the conduct in question. Saltibus, by contrast,
admitted the misconduct.
In Lutheran Heritage Village-Livonia, the Board estab-
lished the standard for determining whether an employ-
er’s maintenance of a work rule reasonably tends to chill
employees in the exercise of their Section 7 rights. 343
NLRB 646 (2004). The Board gives a rule a reasonable
reading and refrains from reading particular phrases in
isolation. Id. at 646. As here, where a rule does not ex-
plicitly restrict activities protected by Section 7, a “viola-
tion is dependent upon a showing of one of the follow-
ing: (1) employees would reasonably construe the lan-
guage to prohibit Section 7 activity; (2) the rule was
promulgated in response to union activity; or (3) the rule
has been applied to restrict the exercise of Section 7
rights.” Id. at 647.
Applying these principles, I find, first, that a reasona-
ble employee would not construe Turley’s admonition as
prohibiting Section 7 activity. The Respondent’s letter
prohibited harassment, intimidation, or threats for refus-
ing to support a strike or dertification in “any way” by
“anyone,” proclaimed that it would not “tolerate” prohib-
ited activity, and asked that employees report such con-
duct. Significantly, the Respondent effectively assured
employees that they were free to support the Union or
not. And, it took the additional step of encouraging em-
ployees to be aware of their rights under the Act, even
suggesting that they refer to official NLRB materials and
directly contact the NLRB to report any prohibited con-
duct if necessary. The Board has found virtually identi-
cal antiharassment rules lawful in Stanadyne Automotive
Corp., 345 NLRB 85, 86–87 (2005), vacated 520 F.3d
192 (2d Cir. 2008) (antiharassment rule lawful where
employer told employees that “[h]arassment of any type
is not tolerated by this company and will be dealt with,”
particularly where the employer assured employees that
they could “be for anything you want to,” including the
union) (emphasis added) and River’s Bend Health & Re-
habilitation Services, 350 NLRB 184, 184, 187 (2007)
(antiharassment rule lawful where employer told em-
ployees that it would “not tolerate any . . . employee be-
ing harassed or threatened for any reason, and ask that
you report such conduct,” particularly given the employ-
er’s assurance that employees were free to support the
union) (emphasis added). As the Board recognized in
Stanadyne, reasonable employees “would not assume
that a statement prohibiting harassment is a restriction on
Section 7 activity, particularly where, as here, the Re-
spondent explicitly indicated that employees were free to
support the Union or not.” 345 NLRB at 87.10

10 In finding otherwise, the judge faulted the Respondent’s letter as
“one-sided,” a view my colleagues appear to share. I respectfully disa-
gree. The issue here is whether the letter would have a chilling effect on
the exercise by employees of their Sec. 7 rights. Taking into account
ARKEMA, INC. 1255
Second, the Respondent’s letter was not promulgated
in response to protected union activity. The judge ex-
plicitly discredited Turley’s testimony that he issued the
letter in response to the Saltibus incident, and instead
cited Plant Manager Terry Freeman’s testimony that the
Respondent began drafting the letter “some time” before
Saltibus’ lawful discipline. Even if the letter was in re-
sponse to the Saltibus incident, that conduct was unpro-
tected for the reasons stated above. River’s Bend, 350
NLRB at 187 (antiharassment rule lawful where it was
issued in response to an unprotected threat that an em-
ployee “must go on strike ‘or else’”). The judge also
cited Freeman’s testimony that the Respondent issued the
letter for reasons unrelated to any protected union activi-
ty—i.e., to notify employees about the election and
communicate its belief that a union was unnecessary.
There is no additional testimony about the development,
timing, or reasons behind this letter except, as shown
above, that its lawful purpose was to prohibit unprotected
harassment.11
Third, there is no evidence that the Respondent’s July
23 letter was applied to restrict the exercise of Section 7
rights. The judge’s mere speculation that the Respondent
might unfairly apply this lawful rule is no substitute for
evidence of this character.

the entire contents of the letter and the circumstances noted above, a
reasonable employee would not assume that the letter, which prohibits
only conduct the Act does not protect, also prohibits other conduct not
referenced in the letter that is protected by the Act merely because the
letter addresses prounion unprotected conduct. Further, under Board
law, the Respondent did not have to wait for a report of harassment to
issue this lawful letter. See Lutheran Heritage, 343 NLRB at 646–649
(Board found lawful an employer’s maintenance of a general rule pro-
hibiting harassment, which was not issued in response to reports of
harassment, stating that “employees have a right to a workplace free of
unlawful harassment, and both employees and employers have a sub-
stantial interest in promoting a workplace that is ‘civil and decent.’”).
11 The judge broadly concluded that the letter was promulgated in re-
sponse to union activity, but provided no support or explanation for this
conclusion.
For all these reasons, I would reverse the judge and
find that the Respondent’s July 23 letter did not violate
Section 8(a)(1).12 Because this letter and Saltibus’ disci-
pline were both lawful, I would further reverse the judge
and certify the election results.13
C. The General Counsel Failed to Establish that
the Confirmation Letter Given to Shepherd Laid a
Foundation for Future Disciplinary Action
Finally, I would reverse the judge’s determination that
the Respondent violated Section 8(a)(3) and (1) by disci-
plining employee and Union President Fred Shepherd
because of his protected union activity.
In July, the Respondent received a report from one of
its supervisors that Shepherd told a subordinate not to
explain something to another employee because that em-
ployee was nonunion. In August, the Respondent re-
ceived another report from employee Byron Duncan that
Shepherd was throwing things around the shop and had
told employees that “they were either for him or against
him.” The Respondent investigated all reports, including
interviewing Duncan and taking statements from other
employees in Shepherd’s department, who could not con-
firm any misconduct on Shepherd’s part. On August 19,
the Respondent met with Shepherd to discuss its investi-
gation. Shepherd denied Duncan’s allegations of mis-
conduct and offered an explanation for the conversation
overheard by the supervisor.
Prior to the August 19 meeting, the Respondent pre-
pared a written reprimand for Shepherd. After hearing
his denials and explanation, however, the Respondent
decided not to issue this reprimand. Plant Manager
Freeman explained that “it became clear that this wasn’t

12 Accordingly, I would also reverse the judge’s related finding that
the letter threatened employees with unspecified reprisals for engaging
in protected activity. See River’s Bend, 350 NLRB at 187 (where em-
ployees would not reasonably construe a rule as requesting reports on
protected activities of others, those employees also would not reasona-
bly construe the rule as a threat of unspecified reprisals if they chose to
engage in their own protected activities).
13 If my view of the decertification election’s validity were to pre-
vail, it would then be necessary for me to address the holding in W. A.
Krueger Co., 299 NLRB 914 (1990), that even when an incumbent
union loses a decertification election, an employer violates Sec. 8(a)(5)
by failing to maintain the status quo while the union’s objections to the
election are pending and before the certification of results issues. Id. at
915. I have reservations about this precedent but need not reach any
conclusions about it in this decision, where the Respondent’s obligation
to recognize the Union’s continuing majority status and to refrain from
making unilateral changes turns on my colleagues’ determination to
sustain the Union’s election objections and to direct a second election.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
a situation where a disciplinary action was warranted.”14
Rather, the Respondent simply reminded Shepherd of its
antiharassment policy, discussed his role as a leadman,
and offered advice on how to best interact with employ-
ees to avoid a hostile work environment.
On September 5, the Respondent memorialized this
matter by presenting Shepherd a “written confirmation”
letter. This letter outlines the “accusations” against
Shepherd and confirms the parties’ August discussion of
them. It recognizes the “significant discrepancies” be-
tween Shepherd’s rebuttal and the allegations, conclud-
ing that “[w]hat we’re left with is differing statements
. . . .” The letter asks that Shepherd “reflect on your re-
sponsibilities” and “work in a way that does not lead to
complaints such as those presented here.”
Contrary to the judge and my colleagues, I find no vio-
lation under Section 8(a)(3). An employer’s action con-
stitutes discipline only when it lays “a foundation for
future disciplinary action against [the employee].” Tro-
ver Clinic, 280 NLRB 6, 16 (1986). The General Coun-
sel must establish this by showing that the action plays a
role in the employer’s disciplinary system. Compare
Promedica Health Systems, 343 NLRB 1351, 1351
(2004) (coachings constituted discipline where employer
took them “into consideration in determining whether
further discipline is warranted, and the nature of that dis-
cipline, for future infractions”) and Lancaster Fairfield
Community Hospital, 311 NLRB 401, 403 (1993) (“con-
ference report” issued to employee was not discipline
where the General Counsel failed to prove it was part of
disciplinary system). Here, the General Counsel present-
ed no evidence concerning the extent of the Respond-
ent’s disciplinary system or whether the Respondent’s
contested actions play any role in that system. The Gen-
eral Counsel thus has not shown that the Respondent’s
actions could “lay the foundation” for discipline. This is
particularly so given the Respondent’s stated determina-
tion, in the “written confirmation” letter, that it could not
verify whether Shepherd had in fact engaged in miscon-
duct, and instead simply reminded him of its company
policies and a leadman’s responsibilities.15 Because the
August 19 meeting and subsequent “conference report”
were not shown to have affected any term or condition of
employment within the meaning of Section 8(a)(3), they
cannot form the basis for a violation of that section of the

14 The judge mistakenly cited that Freeman testified, “this was not
the type of situation that warranted that level of discipline.”
15 In contrast, no party disputes the judge’s finding that Saltibus’
“written reminder” was a form of discipline. And, in marked contrast to
the “written confirmation” issued to Shepherd, the document issued to
Saltibus rightfully states that he had engaged in misconduct—verified
by Saltibus himself—that violated company policy.
Act.16 Id. at 403–404. The allegation should be dis-
missed.

Dean Owens, Esq., for the General Counsel.
A. John Harper II, Esq. and A. John Harper III, Esq., for the
Respondent.
Bernard L. Middleton, Esq., for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
MICHAEL A. MARCIONESE, Administrative Law Judge. I
heard this case in Houston, Texas, on February 9 and 10, 2009.
This case began on July 17, 2008,1 when Greg Schrull, an em-
ployee of Arkema, Inc., filed the decertification petition in Case
16–RD–001583. Pursuant to a Stipulated Election Agreement,
the NLRB’s Regional Director conducted an election by secret
ballot on August 11 and 12 among Arkema’s employees in the
following stipulated unit:

INCLUDED: All production and maintenance employees,
including laboratory employees.

EXCLUDED: All office clerical employees, plant clerical
employees, guards, foremen and all other supervisors as de-
fined in the Labor Management Relations Act of 1947, as
amended.

The tally of ballots, which issued on August 12, showed that, of
the 35 eligible voters, 18 employees voted against and 17 em-
ployees voted for the Union (United Steelworkers of America,
Local 13–227). There were no challenged ballots. On August
19, the Union timely filed Objections to Conduct of the Elec-
tion and to Conduct Affecting the Results of the Election.2 Fol-
lowing an administrative investigation, the Board’s Regional
Director concluded that the objections raised substantial and
material issues of fact and credibility which can best be re-
solved by a hearing and, on September 3, issued an Order Di-
recting Hearing and Notice of Hearing. The hearing on objec-
tions was scheduled for September 16.
On August 19, concurrent with the filing of objections, the
Union filed the initial unfair labor practice charge in Case 16–
CA–026371.3 The Union filed the charge in Case 16–CA–
026392 on August 29.4 On September 5, the Region suspended
processing of the Petition based on the filing of the unfair labor
practice charges and postponed the hearing on objections. On
December 23, an order consolidating cases, consolidated com-
plaint, and notice of hearing issued consolidating the represen-
tation case and unfair labor practice cases for hearing on Febru-
ary 9, 2009. An amended consolidated complaint subsequently

16 I thus need not pass on the judge’s application of Wright Line in
finding an 8(a)(3) violation.
1 All dates are in 2008, unless otherwise indicated.
2 The Union’s objections are set forth in App. A. By letter dated De-
cember 11, the Board’s Regional Director approved the Union’s with-
drawal of Objections 14 through 17 and that portion of Objection 18
alleging Board agent misconduct. The Union withdrew Objection 11 at
the hearing and, in its posthearing brief, withdrew Objections 13 and
21.
3 The Union amended this charge on October 23.
4 The Union amended this charge on September 9 and on 11.
ARKEMA, INC. 1257
issued on January 14, 2009. The amended complaint alleges
that Arkema, Inc., the Respondent, violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act (the Act) before
and after the election.
Specifically, the amended complaint alleges that the Re-
spondent, by email on July 23, requested employees to disclose
to the Respondent the union activities of other employees and
threatened employees with unspecified reprisals for engaging in
protected solicitation; and on August 12, also by email, in-
formed employees that they no longer had a collective-
bargaining agreement. This conduct is alleged to violate Sec-
tion 8(a)(1) of the Act. The amended complaint further alleges
that the Respondent violated Section 8(a)(1) and (3) of the Act
by issuing written discipline to Mark Saltibus on July 22 and by
orally reprimanding Fred Shepherd on August 19 and issuing
Shepherd written discipline on September 5. Finally, the
amended complaint alleges that the Respondent violated Sec-
tion 8(a)(1) and (5) of the Act by withdrawing recognition from
the Union on August 12 based on the results of the disputed
election and by dealing directly with unit employees and mak-
ing unilateral changes in their wages, hours, and other terms
and conditions of employment after withdrawing recognition.5
The Respondent filed its answer to the amended complaint
on January 16. While denying that it committed any of the
alleged unfair labor practices, the Respondent admits that it
withdrew recognition from the Union on August 12 and further
admits conferring with unit employees, after the election, re-
garding their terms and conditions of employment and making
some of the unilateral changes alleged in the complaint. The
Respondent asserts that its conduct in this regard was lawful
because the Union had lost majority support, as shown by the
results of the election. With respect to the other alleged unfair
labor practices, the Respondent admits communicating with its
employees via the emails identified in the complaint but asserts
that these communications were protected by Section 8(c) of
the Act. The Respondent admits that it issued a “written re-
minder” to Saltibus and a “written confirmation of the results of
an investigation” to Shepherd but denies that this was discipline
and further denies that it took this or any other action against
these two employees based on union or other protected concert-
ed activity. The Respondent has also raised several affirmative
defenses in its answer.
As framed by the pleadings, a key to resolving many of the
issues raised in this proceeding is determining whether the elec-
tion conducted on August 11 and 12 was valid. If the Respond-
ent committed unfair labor practices before the election that
tainted the results, or engaged in objectionable conduct suffi-
cient to warrant setting aside the results, then the withdrawal of
recognition and subsequent actions would violate Section
8(a)(1) and (5). If the election is valid, the tally of ballots would
establish that the Union had indeed lost the support of a majori-

5 In his posthearing brief, counsel for the General Counsel for the
first time alleged that the Respondent also violated Sec. 8(a)(1) of the
Act by interrogating employee David Pope on August 18. While not
specifically moving to amend the complaint to add this new allegation,
the General Counsel asked that I “conform the pleadings with the evi-
dence in this regard.” I will address this matter later in my decision.
ty of the employees in the unit. The withdrawal of recognition
and related conduct would not be unlawful. The 8(a)(1) and (3)
allegations do not turn on whether the Union had majority sup-
port.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Respondent, and the Charging
Party Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Pennsylvania corporation, manufactures
chemical products at its facility in Houston, Texas, where it
annually derives gross revenues in excess of $500,000 from the
conduct of its business and annually sells and ships from its
Houston facility goods valued in excess of $50,000 directly to
points located outside the State of Texas. The Respondent ad-
mits and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act and
that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
By the summer of 2008, the Respondent’s production and
maintenance employees at the Houston plant had been repre-
sented by a union since 1961. The Charging Party Union was
the current collective-bargaining representative, following a
series of union mergers and affiliations over the years. The
most recent collective-bargaining agreement was effective
through October 10. There were 35 unit employees at the Hou-
ston facility. Fred Shepherd, a 33-year employee, has been a
union member and officer throughout his employment. At the
time of the election, he was the general president, the highest-
ranking union official at the plant. Mark Saltibus, a 17-year
employee, was a member of the Union’s bargaining committee.
The Respondent also operates a nonunion facility in Beau-
mont, Texas. Both the Houston and Beaumont facilities were
the responsibility of Plant Manager Wendal Turley, a 28-year
employee of the Company. Terry Freeman, the Houston plant’s
site manager, was responsible for the day-to-day operations of
that facility. Freeman reported directly to Turley. Wendy
Dupuy was the regional human resources manager, responsible
for both plants and also reporting directly to Turley. Other su-
pervisors who played a role in the events involved in this pro-
ceeding are Dennis Van Wye, who was the operations superin-
tendent in charge of 22 plant operators, including Saltibus, and
Gerald Barnhart, the maintenance superintendent in charge of
the instrument and electrical department where Shepherd
worked.
The evidence in the record establishes that the decertification
drive began sometime in the spring and continued up to the
election. Employees on both sides of the issue campaigned
vigorously for their respective position. The first alleged unfair
labor practice arose in the course of this campaign and involved
Saltibus’ efforts to persuade employee Susan Russell to support
the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1258
A. The July 22 “Written Reminder” Issued to Saltibus
As noted above, Saltibus worked for the Respondent for 17
years. In the summer of 2008, he held the position of utility
operator, meaning he filled in for other operators who were on
vacation or out sick. He was also a step-up chief, meaning he
filled in for the chief operator when absent.6 According to Salt-
ibus, he acted as the chief operator about 11 times in 2008.
Saltibus admitted that, after learning of the decertification peti-
tion, he talked to a number of employees, both union members
and nonmembers, to enlist their support for the Union. One of
the employees he spoke to was Susan Russell, a relatively new
employee.
Saltibus testified that he spoke to Russell in the early morn-
ing of July 21, around relief time, when he encountered her
near the change house where employees change into protective
gear. No one else was present. According to Saltibus, he asked
Russell if she knew about the decertification petition. Saltibus
then told Russell a little bit about the history of labor relations
at the plant and asked for her support. Saltibus admitted telling
Russell that, if the Union goes away, “there’s no support . . . the
relationships going to change.” At the hearing, Saltibus ex-
plained what he meant by that, testifying that, if she needed
help with a physical aspect of the job, as she had in the past, he
would not be able to help her, that he would not do her job for
her, or “carry her load” in the plant.7 He testified that he did not
give Russell this explanation at the time of the conversation,
only telling her that the relationship would change and the Un-
ion would not be there to support her if it was decertified. Salti-
bus denied referring to Russell’s gender during the conversa-
tion. He also denied raising his voice, using profanity or at-
tempting to block her path. He described Russell’s demeanor as
“stoic” and recalled that she didn’t say much but just listened.
According to Saltibus, the conversation lasted about a minute.
Russell’s version of this conversation differs from that of
Saltibus. According to Russell, who testified for the Respond-
ent, Saltibus asked her if she knew about the decertification
petition. Russell did not know what he was talking about at the
time, so Saltibus explained it was the paper that Petitioner
Schrull was circulating to get the Union out. When Russell did
not respond, Saltibus told her there was a list going around and,
if her name was on it, she, being a female, would not get any
assistance from the union men in the plant when she needed it.
Russell admitted that she at times did require assistance from
the male plant operators to do her job, and that, if none were
around, she would even ask guys from the maintenance de-
partment to help her. According to Russell, she stopped listen-
ing to Saltibus at that point because she feared for her safety,
imagining herself in flames without anyone helping her. She
recalled nothing more from the conversation. Russell reported
this conversation to Mark Wells, another operator who was
training her, and he suggested she tell Chief Operator Randy

6 The chief operator is a lead position in the bargaining unit. No one
contends this is a statutory supervisory position.
7 There is no dispute that the job of plant operator can be physically
demanding at times.
Joy.8 It was Joy who called Site Manager Freeman to report the
conversation. Russell then told Freeman what Saltibus said to
her. She later signed a statement prepared by Freeman to doc-
ument the incident. This statement was generally consistent
with her testimony.9
On July 22, in the evening, Saltibus was called to the office
over the radio. When he got there, Freeman, Dupuy, and his
supervisor, Van Wye, were there. He asked them what this was
about, and Freeman said it had to do with an employee com-
plaint. Saltibus then asked for representation and Shepherd was
called to the office. Freeman then asked if Saltibus had talked
to any employees. When Saltibus asked who this pertained to,
Freeman identified Russell. According to Saltibus, when Free-
man asked what happened, he described the conversation as he
did at the hearing. Freeman then asked what Saltibus meant
about his and Russell’s relationship changing and he replied, as
he did at the hearing, by explaining how Russell needed help to
do her job and that he would no longer do her job for her, that
she would have to carry her own weight. Freeman then asked
what would happen if there was a fire or some other danger in
the plant and Saltibus said that he would help her because that
would be his natural instinct. Freeman then reminded Saltibus
that, in his position, he would sometimes act as the chief opera-
tor, and asked if he would not help Russell at those times. Ac-
cording to Saltibus, he replied that this was not what he meant,
that he would do his job when acting as chief, including helping
Russell as needed.
Saltibus testified further that, in the meeting, after discussing
the incident with Russell, Freeman said he appreciated Saltibus’
honesty but said that the Respondent had problems with him in
the past harassing employees about the Union. Freeman then
gave Saltibus an envelope containing a “Written Reminder” for
“Violation of Company Harassment Policy.” This document,
which is dated July 22, purports to confirm the discussion that
had just taken place and starts by stating that the Respondent
had “completed its investigation into your alleged inappropriate
behavior towards your coworkers.” The alleged violations were
“making intimidating and threatening remarks toward a
coworker and creating an offensive working environment.” The
letter characterizes Saltibus’ conduct toward Russell as unpro-
fessional and accuses him of “threatening her job if she contin-
ued to pursue her non-union status.” There is no mention of
Saltibus’ statements suggesting that he would no longer help
Russell do her job if she supported the decertification petition.
In addition to the Russell incident, the letter refers to “a sepa-
rate occasion” when Saltibus allegedly “made threatening and
inappropriate remarks to a laboratory employee concerning her
wishes to not join the Union.” No details regarding this incident
are contained in the letter. The letter concludes by stating that
these incidents are “wholly unacceptable and will not be toler-
ated.” Saltibus is then advised to “reflect upon these unfortu-

8 There is uncontradicted evidence in the record that Joy was op-
posed to the Union.
9 In the statement, Russell reported that Saltibus also said if the Un-
ion wasn’t there, she might not have a job because she wouldn’t have
their protection and then, “as the conversation progressed,” he made the
statement about not helping her on the job if she needed it.
ARKEMA, INC. 1259
nate incidents and determine your ability to comply with our
expectations regarding employee conduct; however, please
understand failure to comply with any of these requirements
may result in the termination of your employment.”
Saltibus testified that, after reading the letter, he asked Free-
man about the other incident referred to in the “Written Re-
minder.” Freeman said he didn’t want to discuss it. Saltibus
asked Freeman to bring the lab employee in to confront him
about the allegation because he didn’t know what it was about,
and again Freeman said he did not want to discuss it. Saltibus
told Freeman that, because the Respondent no longer included
information about the Union in new employee orientation, Salt-
ibus had a right as a union committeeman to approach them and
provide this information. At the end of the meeting, Saltibus
turned to Dupuy, the HR manager, and asked her how she de-
fined “harassment.” According to Saltibus, Dupuy said that
harassment is in the eye of the beholder.
Saltibus testified at the hearing that the only lab employee he
had talked to about the Union was Sue Plattner and that the
conversation occurred in October 2007, 9 months earlier. Ac-
cording to Saltibus, he approached Plattner because she had just
been brought into the unit after having worked for about a year
as a contractor, as a result of negotiations between the parties
that created a new position and wage rate for her. While in the
lab performing part of his job, Saltibus mentioned to Plattner
that the Union had negotiated the deal that got her the job and
he invited her to be part of the Union. Plattner told Saltibus that
she had been in a union before and wanted no part of the Un-
ion. Saltibus testified that he asked her why and, after further
discussion, the conversation ended.10 According to Saltibus, no
one had mentioned this conversation, nor questioned him about
it, before the July 22 meeting.
Shepherd also testified about the July 22 meeting that he at-
tended as Saltibus’ union representative. He corroborated Salti-
bus in many regards. For example, he recalled Saltibus admit-
ting that he told Russell that their relationship would change if
there was no union, that he would not be able to help her out.
He corroborated the discussion in which Saltibus explained his
statements to Freeman as being limited to physically helping
her do the job, and not meaning that he would not help her in a
safety situation or when acting as chief operator. He denied that
Saltibus admitted that he would not help her because she was a
woman, or that there was any reference to Russell’s gender in
the conversation. He recalled Freeman thanking Saltibus for his
honesty before handing him the envelope containing the “Writ-
ten Reminder,” and Freeman wanting to end the meeting quick-
ly after that, not wanting to discuss the other incident referred
to in the letter. He also recalled Dupuy’s statement that harass-
ment was in the eye of the beholder. Shepherd testified that, in
his role as general president, he has attended hundreds of inves-
tigatory interviews with employees and that this meeting was
different from the usual practice. According to Shepherd, disci-
pline normally would issue a couple days after such an investi-
gatory meeting.
The General Counsel questioned Freeman, under Rule
611(c) of the Federal Rules of Evidence, about Saltibus’ al-

10 Plattner did not testify in this proceeding.
leged discipline. Respondent chose not to recall him as part of
its case, having questioned him during “cross-examination” of
the 611(c) testimony. Freeman acknowledged that he first
learned of Saltibus’ conversation with Russell from Joy on July
21. He admitted that he spoke to Russell almost immediately
upon receiving this report.11 Freeman also acknowledged draft-
ing the written reminder after speaking to Russell, before he
interviewed Saltibus. Freeman did not testify in detail regarding
what transpired at the meeting with Saltibus on July 22 but he
did corroborate Saltibus and Shepherd in many respects. The
most significant difference in his testimony from that of Salti-
bus and Shepherd was his claim that Saltibus admitted that he
referred to Russell’s gender when he told her he would not help
her if she supported the decertification petition. Both Saltibus
and Shepherd denied that Saltibus ever referred to Russell’s
gender when discussing the conversation. The Respondent’s
claim in its brief that Saltibus admitted making a reference to
Russell needing help because she is a woman is not supported
by the transcript of his testimony. It was the Respondent’s
counsel, on cross-examination, who repeatedly tried to put
these words in Saltibus’ mouth. Saltibus insisted throughout
that he only referred to her needing help to do the job without
any mention of the fact she is a woman.
Dupuy, who was at the July 22 meeting, was not asked any
questions about it. Van Wye, who was Saltibus’ and Russell’s
supervisor, did testify about the incident but his testimony was
not consistent with that of Freeman. Van Wye recalled Russell
reporting that Saltibus asked her if she was going to vote for or
against the Union. According to Van Wye, Russell said that
when she told Saltibus that she was voting against the Union,
Saltibus replied that he would not help her anymore, that she
would be on her own. Van Wye made no mention of gender in
reporting the substance of Russell’s complaint. Van Wye testi-
fied further that Russell reported that she felt threatened be-
cause she believed that Saltibus would not help her in the event
of a fire or some other safety issue in the plant. The Respondent
also questioned Wendal Turley about the incident but Turley
had no direct involvement in the investigation of the incident
and only relied upon Freeman’s report in authorizing Freeman
to issue the written reminder to Saltibus.
Shepherd and Freeman both testified about an earlier inci-
dent in which Shepherd complained to Freeman about per-
ceived harassment of employees by prodecertification employ-
ees. Shepherd testified that employee Madonna Trevino ap-
proached him in April 2008, shortly after rumors of a decertifi-
cation effort began, about employees Vance Thomas and Chuck
Rayburn repeatedly asking her to sign a decertification petition,
even after she told them she was not interested. According to
Shepherd, Trevino reported that Thomas and Rayburn promised
her better benefits without a union. Trevino told Shepherd that
she felt she was being harassed and asked if he could do some-
thing to make it stop. Shepherd said he told Freeman about
Trevino’s concerns shortly after speaking to her and that Free-
man said he would look into it. Trevino also testified at the

11 As pointed out by the General Counsel in his brief, the testimony
of Freeman, Supervisor Van Wye, and Russell regarding where and
when Russell met with Freeman is not consistent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1260
hearing and confirmed that she complained to Shepherd in
April about Thomas and Rayburn soliciting her at work to sign
the decertification petition and her request that he do something
about it. According to Trevino, her supervisor, James Whee-
land, did not talk to her about this complaint until about a week
before the election, after the July 23 memo (to be discussed
later in this decision) came out.
Freeman acknowledged receiving a complaint from Shep-
herd about Trevino feeling harassed by employees advocating
the decertification petition. At the hearing, Freeman claimed he
could not recall when this occurred but it was closer to the time
the petition was filed and not in April or May, as Shepherd and
Trevino claimed. This testimony is inconsistent with an affida-
vit Freeman provided during the investigation of the unfair
labor practice charges. In the affidavit, he stated that Shepherd
first came to him in April with the issue of decertification sup-
porters promising employees raises and additional benefits and
that Shepherd raised Trevino’s complaint a few weeks later.
Freeman testified that, upon receipt of this complaint, he in-
structed Wheeland to talk to Trevino and find out if there was
anything to it. After Wheeland reported back to him, Freeman
talked to Thomas and Rayburn and told them he had received a
report that they were aggravating another employee. He took no
further action. In contrast to the incident with Saltibus, no
statements were taken from Trevino and no record of the meet-
ing with Thomas and Rayburn was made. Freeman did
acknowledge that, unlike his response to Russell’s complaint,
he did not take immediate action in response to the report he
received from Shepherd. Freeman attempted to explain the
apparent difference in treatment of Saltibus and the prodecerti-
fication employees by testifying that Trevino never reported the
issue through her supervisor and never indicated she wanted the
Respondent to take any action.12 In addition, in Freeman’s
view, Saltibus had corroborated Russell’s version of the con-
versation. Freeman also cited Saltibus role as a step-up chief,
with occasional authority over employees like Russell as justi-
fying a heightened response to Russell’s complaint.
In October 2007, the Respondent suspended Mark Wells for
4 days, after he was accused of making negative remarks to
another employee based on the employee’s race. This was de-
termined to be a violation of the same antiharassment policy
cited in Saltibus’ written reminder. Although the Respondent
argues that this shows consistent enforcement of the policy, the
General Counsel points out that no discipline issued until after
the Respondent met with Wells and other witnesses, and after a
meeting of management personnel to review the case. Wells
was issued the disciplinary letter at a second meeting 2 days
later.
Having considered the above evidence and the record as a
whole, I conclude that Respondent’s issuance of a written re-
minder to Saltibus on July 22 violated Section 8(a)(1) and (3)
of the Act. Initially, I credit Saltibus’ version of his conversa-
tion with Russell and find that what he told her on July 21, in

12 Russell actually reported her concerns to Joy, who is not a super-
visor. It was Joy who chose to bring the complaint to the supervisor and
encouraged Russell to meet with Freeman. Trevino had asked Shepherd
to keep her complaint within the unit.
the course of soliciting her support for the Union in the upcom-
ing election, was that, if there were no union, there would be no
support and that their relationship would change. Russell inter-
preted this as a threat that Saltibus and the union men would no
longer help (support) her when she needed it, even in the event
of a fire or safety issue, and that she would be on her own.13
The gender issue was a mere gloss put on the conversation so
that the Respondent could fit the incident under its antiharass-
ment policy and justify discipline. I credit Saltibus and Shep-
herd and find that Saltibus never said he would refuse to help
her because she was a woman, either in the conversation on
July 21 or during the meeting on July 22.14 In fact, even in the
written reminder, there is no mention of any harassment based
on Russell’s gender. Instead, the letter claims that Saltibus
threatened her job if she continued to pursue nonunion status, a
claim not supported by any of the testimony. Even the reference
to the earlier incident involving the lab employee only mentions
union status as the basis of Saltibus’ alleged inappropriate re-
marks and conduct toward other employees. The Respondent’s
antiharassment policy, as laudable as it may be, simply does not
cover harassment based on an employee’s union support or
nonsupport.15
I find further that the written reminder is a form of disci-
pline. There is no dispute that the reminder becomes part of the
employee’s record and the last line clearly warns of further
discipline if the employee continues to engage in the conduct
described in the reminder. Even the Respondent seems to have
abandoned any claim that the July 22 letter was not discipline
when, in its brief, it concedes this point for the purpose of ar-
gument. The July 22 “Written Reminder,” on its face, is clearly
based on Saltibus’ union activity and the Respondent’s belief
that he engaged in misconduct in the course of that activity.
Where an employee is disciplined for conduct that is part of the
res gestae of protected activity, the employer’s motivation is
not at issue. Tri-County Mfg. & Assembly, Inc., 335 NLRB 210,
218–219 (2001), and cases cited therein. In these cases, disci-
pline is privileged only when an employee’s conduct is so fla-
grant or egregious as to warrant removal of the Act’s protec-
tion. Id. See also Ogihara America Corp., 343 NLRB 809, 813
(2004); Consumers Power Co., 282 NLRB 130, 132 (1986);
Traverse City Osteopathic Hospital, 260 NLRB 1061 (1982),
enfd. 711 F.2d 1059 (6th Cir. 1983). Even an honest belief that
an employee has engaged in misconduct in the course of pro-
tected activity is no defense if the misconduct did not in fact
occur. NLRB v. Burnup & Sims, 379 U.S. 21 (1964). Accord:
Keco Industries, 306 NLRB 15, 17 (1992).
I find that the Respondent’s asserted belief that Saltibus en-
gaged in misconduct in the course of his union activities was
not an honest one advanced in good faith. It is clear from the
circumstances that the Respondent rushed to judgment by issu-
ing the discipline almost immediately after receiving the report

13 Saltibus clearly explained during the “investigatory interview” on
July 22 that this was not what he meant.
14 I thus do not credit Freeman or Van Wye to the extent their testi-
mony regarding the July 22 meeting differs from that of Saltibus and
Shepherd.
15 This incident is thus qualitatively different than the racial remark
made by Wells which clearly was covered by the policy.
ARKEMA, INC. 1261
from Randy Joy about Russell’s conversation with Saltibus.
The only investigation conducted by the Respondent was to
take a statement from Russell. Saltibus was not given an oppor-
tunity to respond to the allegations against him until after the
discipline was drafted. The fact that the Respondent included in
the disciplinary letter a 9-months old allegation that had never
been investigated, and then refused to discuss it when Saltibus
asked for details, shows the Respondent’s predetermined intent
to discipline Saltibus.
Moreover, the Respondent’s conduct toward Saltibus is
markedly different from its reaction to Shepherd’s complaint
that employee Trevino felt harassed by employees’ persistent
solicitations to sign the decertification petition. I discredit
Freeman’s belated attempt to change the timeline of this inci-
dent by claiming at the hearing that it was closer to the date the
petition was filed than the April timeframe he reported in his
pretrial affidavit. Shepherd and Trevino were consistent in plac-
ing this incident in April, at the beginning of the decertification
campaign. Even assuming it occurred closer to the July 17 date
the petition was filed, Freeman admittedly did not act upon it
for several weeks, until after the memo issued soliciting em-
ployees to report any perceived harassment. I credit Trevino
that Wheeland did not talk to her about it until a week before
the election, long after the incident. Similarly, rather than ob-
tain written statements from employees or issue a supposedly
harmless written reminder to Thomas and Rayburn, Freeman
chose to close the “investigation” without taking any action. I
find that the minimal action Freeman did take regarding the
Trevino incident was merely an attempt to mask any claim of
disparate treatment of pro- and antiunion employees.
In conclusion, the Respondent’s July 22 written reminder is-
sued to Mark Saltibus violated the Act as alleged in the amend-
ed consolidated complaint.
B. Turley’s July 23 Memo to Employees
There is no dispute that the day after Saltibus was disci-
plined, the Respondent’s plant manager, Wendal Turley, com-
municated with unit employees by email. Attached to the email
were two documents, the NLRB’s pamphlet entitled “Your
Government Conducts an Election” and a letter from Turley.
Employees were asked to review the attachments. In his letter,
Turley informs the employees about the upcoming election and
advises them that the NLRB will be sending official notices
which will be posted upon receipt. He encourages employees to
read the notices when they are posted and to become aware of
their rights. The letter then attempted to inform employees’ of
their rights as follows:

Your rights include:

 NO HARASSMENT-You have the right to not be
harassed, intimidated or threatened in any way-
physically or verbally-by anyone, including the un-
ion, for refusing to support a strike or certification.
 NO THREAT OF JOB LOSS-The union cannot
threaten that you will lose your position by not
supporting them in a vote.
 NO PUNISHMENT-The union cannot seek suspen-
sion, discharge or other punishment of an employ-
ee for not being a member of the union, even if the
employee has paid an initiation fee and on going
dues.
 NO REFUSAL TO GRIEVE-The union cannot re-
fuse to process a grievance because an employee
has criticized union officials or because an em-
ployee is not a member of the union.

Any activity of this type will not be tolerated at the plant and
should not be tolerated outside of the plant and in your homes.

If you feel you have been subjected to harassment, intimida-
tion or threats, you should immediately contact our HR Man-
ager—Wendy Dupuy or the local NLRB office here in Hou-
ston at 713-209-4888.

As the Plant Manager, I have worked hard to ensure employ-
ees here are treated fairly. Hopefully, I have earned your re-
spect and trust as someone who will listen and act on your
concerns. I assure you this will not change as all of this un-
folds. I personally do not feel you need a union at the Houston
plant. Ultimately the outcome of this election will be your de-
cision. Over the next few weeks, you should utilize the time to
decide what is best for you as an individual.

Freeman testified that this email and Turley’s letter had been
in the works before the incident with Saltibus and Russell and
the timing of its issuance was coincidental.16 According to
Freeman, the purpose of the letter was to state the Respondent’s
position on the need for a union at the Houston plant and to
remind employees they had a right not to be harassed by any-
one pro or con.17 Turley testified that his letter had three pur-
poses: (1) to notify employees that there was going to be an
election; (2) in light of the Saltibus’ incident, make sure every-
one knew what their rights were; and (3) let employees know
that the Respondent did not believe they needed a union.
The General Counsel alleges that Turley’s email violated the
Act in two ways, by soliciting employees to report the protected
activities of other employees, and by implicitly threatening
employees with unspecified reprisals for engaging in protected
activity. While the Board has historically prohibited an em-
ployer from making statements that invite or encourage em-
ployees to report on protected conduct of their coworkers, the
analytical framework for determining when such a violation has
occurred has recently changed, with substantial disagreement
among Board members. See River’s Bend Health & Rehabilita-
tion Service, 350 NLRB 184 (2007). In the past, such state-
ments have been found unlawful where the employer’s state-
ment could reasonably be understood as soliciting reports of
conduct that employees might find subjectively offensive yet

16 At the hearing, Freeman attempted to backtrack from what he pre-
viously stated in a pretrial affidavit. When asked to confirm that the
memo was unrelated to the Saltibus incident, he claimed he could not
speak to the intent of the memo because he had not drafted it. Yet he
admitted that he had participated in its preparation with Turley and
Dupuy for “some time” before the Saltibus’ incident. This inconsisten-
cy in his testimony is further reason why I found him to be an unrelia-
ble witness.
17 If this was the purpose, it is curious that the letter only mentions
harassment by the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1262
are protected by the Act. See Ryder Transportation Services,
341 NLRB 761, 762 (2004), enfd. 401 F.3d 815 (7th Cir.
2005); Hawkins-Hawkins Co., 289 NLRB 1423 (1988); Eastern
Maine Medical Center, 277 NLRB 1374 (1985).
In River’s Bend, supra, a majority of the Board applied to
this type of allegation a three-part test that the Board had
adopted, in Lutheran Heritage Village-Livonia, 343 NLRB 646
(2004), for determining whether an employer’s maintenance of
a work rule is unlawful. In Lutheran Heritage Village-Livonia,
one of the rules at issue prohibited “harassment.” Under this
three-part test, if a rule does not explicitly restrict protected
activities, then a finding of a violation is “dependent upon one
of the following: (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was prom-
ulgated in response to union activity; or (3) the rule has been
applied to restrict the exercise of Section 7 rights.” Id. at 647.
In River’s Bend, supra, the majority found that an employer’s
letter to employees, asking them to report any harassment or
threats for choosing not to go on strike so that the employer
could ensure a safe working environment, was lawful. The
majority relied, in part, on the fact that the letter issued after the
employer had received reports that an employee had been
threatened.
This case is distinguishable from Lutheran Heritage Village-
Livonia, supra, because that case involved the mere mainte-
nance of a rule where there was no evidence that the employer
had applied it to protected activity. This case is also distin-
guishable from River’s Bend, supra, because the evidence es-
tablishes that Turley did not issue the July 23 memo to employ-
ees in response to any reported threats or harassment. In this
regard, I discredit Turley’s testimony that the incident involv-
ing Saltibus was one of the reasons he issued the memo. Free-
man contradicted that testimony by acknowledging that the
Respondent began drafting this memo some time before the
Saltibus incident came to light and the timing was “coinci-
dental.” Moreover, I have already found above that the Re-
spondent’s discipline of Saltibus was unlawful, thus, his activi-
ty which purportedly generated this memo was protected. The
Respondent’s treatment of Saltibus, when contrasted with its
response to the Trevino complaint of harassment by pro-
decertification employees, shows that the Respondent would
not apply this rule in an even-handed fashion. This is further
evidenced by the memo itself which only addresses threats and
harassment by union adherents, suggesting that those who sup-
port the decertification petition would not be subjected to the
same rules. Thus, I find that the memo violated Section 8(a)(1)
of the Act because it satisfies at least the second prong of the
Lutheran Heritage Village-Livonia test, as applied in River’s
Bend, i.e., it was promulgated in response to union activity. I
find further that Turley’s email and attached memo to employ-
ees, because of its one-sided nature, would have the reasonable
tendency to encourage employees to identify union supporters
based on an employee’s subjective view of harassment and to
discourage employees from engaging in protected union activi-
ties out of fear another employee would consider it harassment.
Accordingly, I conclude that the memo violated the Act as al-
leged in the complaint.
The General Counsel also alleges that Turley, by issuing this
email and memo, made an implied threat of unspecified repris-
als for engaging in protected activities. I agree. In soliciting
employee reports of “harassment” by union supporters, Turley
told the employees that such conduct “would not be tolerated.”
This clearly implies that the Respondent will discipline any
employees reported to have subjectively harassed another em-
ployee on behalf of the Union. As noted above, solicitations
such as these tend to discourage employees from engaging in
conduct that is protected by the Act. Accordingly, I find that the
July 23 memo was also unlawful under this theory. Tawas In-
dustries, 336 NLRB 318, 322 (2001); Joy Recovery Technology
Corp., 320 NLRB 356, 365 (1995), enfd. 134 F.3d 1307 (7th
Cir. 1998).
C. The Election and the Respondent’s Response
As shown by the tally of ballots, the Union lost the August
11–12 election by one vote. The polls closed at 5:30 p.m. on
August 12. At 6:54 p.m. the same day, the Respondent notified
its employees, by email from Turley, that “the collective bar-
gaining agreement no longer exists at this facility.” Turley went
on to advise the employees that all existing policies and prac-
tices that were in effect would continue to be followed for the
time being, but that employees could expect changes over the
next few months, including an announcement about wage in-
creases in mid-September. Turley further advised the employ-
ees that the Respondent would:

Look for opportunities to improve and enhance some of our
current policies and practices that we were unable to do when
the union existed. When changes are being considered you
will have an opportunity to voice your opinions and provide
input into the changes. Ideas you already have about this are
welcome.

There is no dispute that, since the polls closed on August 12,
the Respondent has acted as if there were no union representing
its employees. Human Resources Manager Dupuy admitted
communicating directly with employees regarding changes in
the employees’ time off and sickness and accident policies
“because we didn’t think they [the Union] existed anymore.”
Later on in her testimony, Dupuy succinctly stated the Re-
spondent’s position as to why it ceased union dues deductions
when she said, “because we were under the impression we won
the election.”
The parties stipulated at the hearing to the following facts:

 On or about September 5, the Respondent removed
the plant bulletin boards that had been utilized by
the Union.
 On or about September 4, the Respondent transmitted
dues to the Union for the last time.
 On or about September 1, the Respondent imple-
mented a new Sickness and Accident Policy with-
out affording the Union an opportunity to bargain
with respect to the policy.
 On or about October 1, the Respondent implemented
a new Time Off Policy without affording the Un-
ion an opportunity to bargain with respect to the
new policy.
ARKEMA, INC. 1263
 On or about October 20, the Respondent granted
wage increases to bargaining unit employees.18
 The Respondent did not respond to union grievances,
information requests, or requests to bargain on the
Sickness and Accident Policy and the Time Off
Policy, that were submitted by the Union on and
after August 21.

The evidence in the record also establishes that the Respond-
ent, at least initially, refused to arbitrate two grievances that
were pending on August 12. One involved a dispute over the
grievance procedure and the other involved the discharge of
employee Richard Fore. Shepherd testified that he asked Free-
man if the Respondent was going to arbitrate these grievances
and Freeman said no. This testimony was corroborated by Re-
spondent’s human resources manager, Dupuy. Although Re-
spondent did communicate with the Union in January 2009 to
schedule an arbitration over the Fore discharge, this was after
the complaint had issued in this case. Testimony and corre-
spondence in the record also shows that the Respondent has
refused to process grievances that had been filed before the
election, including one involving Saltibus’ July 22 written re-
minder.
Under current Board law, a union that loses a decertification
election remains the established collective-bargaining repre-
sentative of unit employees until certification of the results of
the election and any unilateral changes made while challenges
and objections are pending would violate Section 8(a)(5) of the
Act. The rule in initial certification cases, that an employer that
makes unilateral changes during the pendency of objections
proceeds at its peril, announced in Mike O’Connor Chevrolet-
Buick-GMC, 209 NLRB 701 (1974), has not been extended to
decertification elections. W. A. Krueger Co., 299 NLRB 914
(1990). Accord: Kentucky River Medical Center, 340 NLRB
536, 544 (2003); VOCA Corp., 329 NLRB 591, 592–593
(1999); G. H. Bass Caribbean, Inc., 306 NLRB 823 (1992).
The Board explained the reason for the difference. To allow an
employer to make unilateral changes before the results of a
decertification election are certified would destroy the union’s
ability to represent the employees should its objections be
found to have merit and the union prevail in rerun election. W.
A Krueger Co., supra at 915.
The Respondent relies on the Board’s decision in Levitz Fur-
niture Co. of the Pacific, 333 NLRB 717 (2001), which held
that an employer may withdraw recognition where it has objec-
tive proof that the union has in fact lost the support of a majori-
ty of unit employees. Id. at 725–726. Levitz and its progeny
would be inapposite to the facts here because, unlike those
cases, the Board has already conducted a secret-ballot election
and the results of that election have been contested by the un-
fair labor practice allegations and objections filed by the Union.
If those allegations have merit, the “actual loss of majority”
demonstrated by the election would be tainted and could not be
relied upon as the basis for withdrawing recognition. See Un-
derground Service Alert, 315 NLRB 958 (1994), a pre-Levitz

18 Trevino testified, without contradiction, that employees received a
4-1/2-percent increase, which was more than had been provided under
the collective-bargaining agreement.
case where the Board found unlawful an employer’s withdraw-
al of recognition based on an employee petition submitted
while the parties were awaiting resolution of a decertification
election hung up on challenges.
I have already found that the Respondent committed two un-
fair labor practices before the election, i.e., the discipline of
Saltibus on July 22 and the email and memo from Turley to the
employees on July 23. Both of these unfair labor practices are
included in the Union’s election objections. Because they oc-
curred during the critical period before the election, they are
sufficient to overturn the results of that election. As the Board
held in Dal-Tex Optical Co., 137 NLRB 1782, 1786–1787
(1962):

Conduct violative of Section 8(a)(1) is, a fortiori, conduct
which interferes with the exercise of a free and untrammeled
choice in an election. This is so because the test of conduct
which may interfere with the laboratory conditions for an
election is considerably more restrictive than the test of con-
duct which amounts to interference, restraint, or coercion
which violates Section 8(a)(1).

The memo to employees, soliciting them to report on the
protected activities of coworkers and impliedly threatening
unspecified reprisals for engaging in protected activity, was
circulated to the entire bargaining unit. In addition, although the
violation with respect to Saltibus directly affected only one
employee, there is evidence that other employees were aware of
Saltibus discipline before the election. Considering the close-
ness of the election, I find that these objections/unfair labor
practices had a reasonable tendency to interfere with the em-
ployees’ free choice and would warrant setting aside the elec-
tion and ordering a new vote. Cambridge Tool & Mfg. Co., 316
NLRB 716 (1995).
Based on the above, it is clear that the Respondent’s with-
drawal of recognition from the Union based on the results of
the August 12 election was premature. The Respondent’s sub-
sequent refusal to recognize the Union’s status as the continu-
ing collective-bargaining representative of unit employees, and
the unilateral changes it implemented after August 12, are
therefore unlawful. Moreover, under W. A Krueger Co., supra,
the unilateral changes are unlawful even if I had found there
were no unfair labor practices or objections affecting the results
of the election because all occurred before the results of the
election were certified.
D. The Alleged Direct Dealing
Having found that the Union was still the exclusive collec-
tive-bargaining representative of unit employees pending certi-
fication of the results of the August 12 election, it naturally
follows that any attempt by the Respondent to bypass the Union
and deal directly with unit employees would violate Section
8(a)(5) of the Act. Medo Photo Supply Corp. v. NLRB, 321 U.S.
678, 684 (1944); E. I. du Pont & Co., 311 NLRB 893 (1993).
See also Permanente Medical Group, 332 NLRB 1143, 1144
(2000). There is no dispute that, on August 20 and September
4, Dupuy emailed unit employees soliciting volunteers to par-
ticipate on committees to “review, alter if necessary and im-
plement” new sickness and accident and time off policies, re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1264
spectively, for the Houston plant. Dupuy, Trevino, and employ-
ee Chuck Rayburn testified regarding what transpired when
these committees met. While Dupuy and Rayburn testified to
the effect that no “negotiations” took place, Trevino’s testimo-
ny shows that employees made suggestions, some of which
were accepted, before the sickness and accident policy was
implemented.19 I find, as alleged in the complaint, that Dupuy’s
communication with employees and her meetings with the two
committees aimed at developing new policies which clearly
impacted employees’ wages, hours, and terms and conditions of
employment, violated Section 8(a)(5) of the Act.
E. The Respondent’s Discipline of Shepherd
As previously noted, Shepherd is a long-term employee of
the Respondent who has been active in the Union for many
years. He was the highest-ranking union official in the plant at
the time of the election. The Respondent’s management was
well aware of his union activities because they met with him on
a regular basis regarding contract negotiations and administra-
tion and grievance processing. Freeman also admitted being
aware that, in the week following the election, Shepherd was
talking to employees about the election and events preceding it,
asking some employees to talk to the Union’s lawyer. It is ap-
parent that Shepherd’s conduct in this regard was an attempt to
investigate potential objections to the election.
On August 19, the same day that the Union filed its objec-
tions and the first unfair labor practice charge, Shepherd was
called into a meeting with Freeman. Plant Manager Turley was
also present. There is no dispute that Freeman told Shepherd
that the purpose of the meeting was to look into complaints the
Respondent had received about Shepherd. Freeman identified
three complaints: (1) that Shepherd was throwing things around
the shop; (2) that he had told employees they were either with
him or against him; and (3) that he told an employee not to
explain something to another employee because that employee
was nonunion. According to Shepherd, he responded to all
three complaints. He denied the first two.20 With respect to the
third, Shepherd said he thought it referred to an incident involv-
ing employee Byron Duncan that occurred about 2 weeks be-
fore the election. Shepherd told Freeman and Turley that the
plant had been shut down because of a problem with a gas line.
In his capacity as lead man, Shepherd had given Duncan two
work orders that were critical to restoring operations. He later
found Duncan in the DCS control room talking to Mark Wells
about an unrelated-work matter. Shepherd acknowledged call-
ing Duncan into the lunchroom and telling him that the work
orders he had been given were critical and that Duncan did not
have time to explain things to Wells that were unrelated to the
work orders. Shepherd also acknowledged that he may have
mentioned the fact that Wells was nonunion. After providing
this explanation, Freeman and Turley then talked to Shepherd
about his role as a lead man and the need to be nonconfronta-

19 I have already found that the Respondent’s unilateral implementa-
tion of these new policies violated Sec. 8(a)(5) of the Act.
20 Shepherd told Freeman and Turley he had no idea what the first
two complaints referred to. Neither Freeman nor Turley gave him any
details regarding these complaints.
tional. They then counseled Shepherd not to create a hostile
work environment within his group.
Freeman and Turley both testified about this meeting. Alt-
hough Freeman essentially corroborated Shepherd’s version,
Turley differed in one significant respect. According to Turley,
Shepherd did not deny the allegations. I do not credit Turley in
this regard. I note that, despite the purported seriousness of
these complaints, Turley was unable to recall one of them until
he was shown a document listing the three issues he and Free-
man discussed with Shepherd. Turley also testified that he and
Freeman had prepared a written reprimand to give to Shepherd
before the meeting, but after discussing the complaints and
talking to Shepherd about leadership, they decided this was not
the type of situation that warranted that level of discipline.
After the August 19 meeting, Shepherd continued to act as a
union representative, attempting to represent the employees in
the unit. On one occasion in late August, he stopped by Free-
man’s office where he asked Freeman and Dupuy, who was
also present, if they would arbitrate the Fore discharge griev-
ance. As previously noted, he was told at that time that Re-
spondent would not. On September 4, Shepherd met with
Freeman in his office. He asked Freeman four questions: (1)
Whether the Respondent still recognized the Union and Free-
man said they did not. (2) Whether the Respondent forbid the
use of the union bulletin boards and Freeman said they did. (3)
Whether the Respondent would continue to process existing
grievances and Freeman said they would not. (4) Whether the
Respondent was going to arbitrate the two grievances that were
pending arbitration. Freeman said he would have to get back to
Shepherd on that. Freeman essentially corroborated Shepherd,
recalling a meeting with him in which Shepherd said he was
going to resume posting material on the union bulletin boards
and operating as a union. Freeman admits telling Shepherd not
to do this. As noted above, the Respondent admitted removing
the union bulletin boards the next day (September 5).
On September 5, at 2:12 p.m., Shepherd sent Freeman an
email to confirm the discussion they had the previous day. Spe-
cifically, Shepherd asked Freeman to respond with any objec-
tions to the following statements: “(1) The Company does not
recognize the Union in the Houston plant. (2) The Company
has forbid the use of union bulletin boards. (3) The Company
will not proceed with arbitration previously scheduled. (4) The
Company will not continue forward with grievances filed be-
fore or after the decert vote.” At 3:30 p.m. the same day, Free-
man approached Shepherd in his work area, told him that the
Respondent would not arbitrate cases and handed Shepherd an
envelope containing a document entitled: “Written Confirma-
tion—Alleged Violation of Company Anti-Harassment Policy.”
Freeman told Shepherd to reflect on the contents of this letter.
The September 5 letter described the same three incidents
that Freeman and Turley had discussed with Shepherd more
than 2 weeks earlier and stated that the Respondent had “com-
pleted its investigation into your alleged inappropriate behavior
towards your coworkers.” Shepherd testified that he had heard
nothing more about these complaints between the August 19
meeting and his receipt of this letter. Freeman admitted that the
Respondent conducted no additional investigation after the
August 19 meeting and received no further complaints about
ARKEMA, INC. 1265
Shepherd. In fact, Freeman testified that he spoke to Duncan,
who was the source of all three complaints, in late August, and
asked how Duncan was getting along with Shepherd. Accord-
ing to Freeman, Duncan said: “[F]ine.”
In the September 5 letter, after reviewing the allegations
against Shepherd and the discussion that had taken place on
August 19, Freeman reaches the following conclusion:

There are obviously significant discrepancies in your
rebuttal and the allegations toward you. You provided fur-
ther explanation of the incident with the I&E technician,
which may help explain the context of the meeting, alt-
hough the reported statements differ greatly. You further
categorically denied the other reports. What we’re left
with is differing statements, some of which are corroborat-
ed.
Fred, it is important that you provide appropriate lead-
ership to accomplish the company’s work with the re-
sources entrusted to you, including the personnel carrying
out the work. You need to take this opportunity to reflect
on your responsibilities and work in a way that does not
lead to complaints such as those presented here as verified
reports of such actions could lead to further disciplinary
action up to and including termination. [Emphasis added.]

Freeman testified that the first complaint he received about
Shepherd occurred on July 26, when Supervisor Wheeland
reported a conversation he overheard the day before between
Shepherd and Duncan in the lunchroom. Freeman testified that
he investigated this allegation “within days” by interviewing
Duncan and that he decided not to take further action at that
point. According to Freeman, he found it unnecessary to inter-
view Shepherd at the time. The next complaint he received was
on August 18, when Duncan approached him in the plant and
said there were some things he wanted to talk to Freeman
about. Freeman invited Duncan to his office to discuss the mat-
ter. Freeman and Dupuy interviewed Duncan and took a state-
ment from him on August 18. According to Freeman, Duncan
told them that Shepherd was throwing things around the shop
and he felt uncomfortable with the situation.21 After talking to
Duncan, he and Dupuy conducted further investigation by in-
terviewing and taking a statement from James Wright, another
employee in Shepherd’s department. Wright did not testify in
the hearing. In his statement, Wright did not corroborate Dun-
can’s complaints about Shepherd throwing things around the
shop or otherwise threatening employees.
Freeman and Dupuy also interviewed David Pope on August
18. Pope testified that Freeman asked if Shepherd was creating
a hostile work environment. Pope told Freeman and Dupuy that
he had never seen anything or had any dealings with Shepherd
that led him to believe Shepherd was doing that. Pope was also
asked if Shepherd was being fair in handing out the work orders
and Pope said he was. They asked Pope if he had heard Shep-
herd make derogatory remarks about any employees, union or

21 To the extent this testimony was offered for the truth of what
Duncan said, it was rejected as hearsay. Duncan did not testify at the
hearing and the Respondent did not offer his written statement into
evidence.
nonunion, and Pope said he had not. Freeman then asked Pope
if he thought the department would be better off without a lead
man and Pope said they needed a lead. Pope was asked if Shep-
herd was fair and Pope said he was. Finally, Freeman asked
Pope if he had been approached by anybody trying to sway his
vote one way or the other. Pope replied that he had been, a few
times, and that he just wanted to be left alone to do his job.
Freeman asked who had approached him and Pope identified
the three employees involved, i.e., Vance Thomas, Greg
Schrull, and Mark Wells. Pope recalled that Dupuy took notes
during the interview and read them back to him. He was not
asked to read or sign a statement. The document that the Re-
spondent offered at the hearing purporting to be the notes of
this meeting is not consistent with his testimony. When Pope
reviewed the document, which he had not seen before, he said it
omitted 75 percent of the meeting. Dupuy testified that the
purported statement was a complete record of the meeting but
acknowledged that she did not have Pope sign it. Her testimony
that he was too busy to sign it is incredible. I found Pope’s
testimony at the hearing to be credible and more reliable than
Dupuy’s unsigned “notes” from this meeting.
The testimony of Freeman and Turley, and that of Dupuy to
the extent she was involved in the investigation of these com-
plaints, as well as the statements obtained by the Respondent
from employees, demonstrate that the allegations against Shep-
herd were remote in time, unsubstantiated, trivial and, essential-
ly, baseless. It is apparent that the Respondent did not consider
these allegations serious enough to warrant a response until
Shepherd persisted in his efforts to represent the employees on
behalf of the Union. This is demonstrated by the timing of
Freeman’s meeting with Shepherd on August 19 and the issu-
ance of the September 5 letter. Both coincided with recent pro-
tected activity by Shepherd and occurred some time after the
complaints that supposedly justified the Respondent’s actions
were received and investigated.
The complaint alleges that the Respondent violated Section
8(a)(1) and (3) by orally reprimanding Shepherd on August 19
and by issuing him written discipline on September 5. Re-
spondent’s initial defense to these allegations is that Shepherd
was never disciplined, characterizing the meeting and letter as
nothing more than reminders of Shepherd’s responsibilities as a
lead man. I disagree. It is clear that, in the August 19 meeting,
Shepherd was advised to work on his leadership skills and
warned not to create a hostile work environment. This meeting
was followed up several weeks later by the letter “confirming”
the discussion at the meeting and essentially warning Shepherd
that any “verified reports” of similar conduct in the future could
result in “further” disciplinary action. Freeman was unable to
explain why he used the word “further” if the September 5
letter was not a form of discipline. Freeman also acknowledged
that this letter would be placed in Shepherd’s personnel file for
future reference. At a minimum, the letter was written confir-
mation of an oral warning that had been conveyed to Shepherd
during the August 19 meeting. To conclude otherwise would be
ignoring the realities of the workplace.
Having found that Shepherd was in fact disciplined on Au-
gust 19 and September 5, I must next determine whether that
discipline was unlawfully motivated by Shepherd’s union activ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1266
ities. In Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Board set forth the analytical framework for deciding cases
where employer motivation is at issue. See also NLRB v.
Transportation Management Corp., 462 U.S. 393, 395 (1983),
in which the Supreme Court approved the Board’s use of this
test. Under this analysis, the General Counsel must first show,
by a preponderance of the evidence, that the employee engaged
in protected activity, that the employer had knowledge of that
activity and had animus against such activity, and that the activ-
ity was a motivating factor in the employer’s decision to disci-
pline the employee. United Rentals, Inc., 350 NLRB 951
(2007); Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999),
and cases cited therein. Proof of motive may be based on direct
evidence, which is rarely available, or inferred from circum-
stantial evidence, including elements such as timing, disparate
treatment, or inconsistent or shifting reasons for the discipline.
W. F. Bolin Co. v. NLRB, 70 F.3d 863, 871 (6th Cir. 1995);
Embassy Vacation Resorts, 340 NLRB 846 (2003); Ronin
Shipbuilding, Inc., 330 NLRB 464 (2000). Once the General
Counsel has established this prima facie case, the burden shifts
to the employer to produce evidence to establish that the em-
ployer would have taken the same action even in the absence of
union activity. Donaldson Bros. Ready Mix, Inc., 341 NLRB
958, 961 (2004). The Board has said that it is not enough for an
employer simply to present a legitimate reason for the disci-
pline. Rather, it must persuade by a preponderance of the evi-
dence that it in fact acted upon that reason. Wright Line, supra;
W. F. Bolin Co., 311 NLRB 1118, 1119 (1993); Manno Elec-
tric, Inc., 321 NLRB 278, 280 fn. 12 (1996). Finally, where the
General Counsel establishes that the asserted reason for disci-
pline is pretextual, there is no burden shift because, by defini-
tion, the employer has failed to show it would have taken the
same action absent the protected activity. Metropolitan Trans-
portation Services, 351 NLRB 657, 660 (2007); Limestone
Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th
Cir. 1982).
The evidence recited above and the record as a whole clearly
demonstrates that Shepherd was involved in union activity and
that the Respondent was fully aware of this activity. The Re-
spondent’s animus toward the Union is established by the un-
fair labor practices found above, including violations of Section
8(a)(1) occurring before the election, the unlawful discipline
issued to Saltibus for engaging in protected solicitation of other
employees, and the Respondent’s precipitous withdrawal of
recognition and abrogation of the collective-bargaining rela-
tionship immediately after the close of the election and before
the results could be certified. Because of the timing of the dis-
cipline, as well as the totality of circumstances surrounding the
Respondent’s discipline of Shepherd, I find that the General
Counsel has met his burden of proving that Shepherd’s union
activities were a motivating factor in the decision to discipline
him on August 19 and September 5. I find further that the Re-
spondent has not met its burden of proving that it would have
taken the same action against Shepherd had he not been active
in preserving the Union’s status at the plant. Turley admitted
that, at the end of the August 19 meeting, he and Freeman had
decided that discipline was not warranted based on the com-
plaints the Respondent had received from Duncan. There is no
dispute that no further investigation was conducted after Au-
gust 19 and no further complaints were received regarding
Shepherd’s conduct between August 19 and September 5. Re-
spondent’s witnesses never explained why it chose to issue this
letter at that time when it apparently felt most if not all of the
allegations against Shepherd had not been substantiated. The
obvious conclusion is that the letter was a response to Shep-
herd’s attempts to continue to represent the Union in the face of
the Respondent’s eagerness to be done with the Union at the
Houston plant. Accordingly, I conclude that the Respondent
had violated Section 8(a)(3) and (1) of the Act, as alleged in the
complaint, by disciplining Shepherd on August 19 and Septem-
ber 5.
F. The Alleged Interrogation of Pope
As described above, Pope testified that, during his August 18
interview with Freeman and Dupuy regarding the complaints
against Shepherd, Freeman asked him some questions regard-
ing his contacts with other employees preceding the election.
The General Counsel, for the first time in his brief, asks that I
find that this questioning constituted unlawful interrogation.
Rather than formally move to amend the complaint to specifi-
cally allege this violation, he asks that I “conform the pleadings
to the proof.” I decline to do so. Regardless of whether an
amendment to add such an allegation to the complaint would be
appropriate under Section 10(b) of the Act,22 I find that it
would be a violation of the Respondent’s due process rights
were I to find a violation now when the issue has not been fully
and fairly litigated. When the General Counsel elicited this
testimony from Pope, he gave no indication to opposing coun-
sel that he considered Pope’s answers to the question to be
evidence of an unfair labor practice. Thus, Respondent did not
offer competing evidence nor did the Respondent have an op-
portunity to argue that the questioning of Pope, even if it oc-
curred as he testified, did not amount to unlawful interrogation.
Accordingly, I shall deny the General Counsel’s motion to
conform the pleadings in this regard. See Desert Aggregates,
340 NLRB 289, 292–293 (2003).23
III. THE UNION’S OBJECTIONS
The Union timely filed 22 objections to conduct of the elec-
tion and conduct affecting the results of the election. As noted
in footnote 2 above, the Union has since withdrawn seven and a
part of an eighth objection. Some of the objections have already
been resolved above because they were also alleged as unfair
labor practices by the General Counsel, based on unfair labor
practice charges that were filed concurrently. Below, I will
address the remaining objections:
Objections 2–4
Objections 2 and 4 are consistent with my findings that the
Respondent violated Section 8(a)(1) of the Act on July 22 when
it issued the written reminder to Saltibus. Accordingly, I shall
recommend that Objections 2 and 4 be sustained. Objection 3,

22 Redd-I, Inc., 290 NLRB 1115 (1988). See also Carney Hospital,
350 NLRB 627 (2007).
23 Decision modified on other grounds at 340 NLRB 1389 (2003).
ARKEMA, INC. 1267
which alleges that the Respondent also created the impression
of surveillance during Freeman’s July 22 meeting with Saltibus,
by referring to the incident involving Saltibus’ solicitation of
the lab employee, goes beyond the complaint’s allegations and
is not supported by the record. Accordingly, I shall recommend
that Objection 3 be overruled.
Objection 5–8
The union counsel argues that the evidence in support of the-
se objections can all be found in the July 23 memo to employ-
ees that Turley distributed by email that day. I have already
found that Respondent violated Section 8(a)(1) of the Act in
this memo by soliciting employees to report the protected activ-
ities of coworkers and by impliedly threatening unspecified
reprisals for engaging in protected activity. Accordingly, I shall
sustain Objections 7 and 8 which raise these allegations.
The Union’s Objections 5 and 6 go further, however, arguing
that, in this memo, the Respondent promulgated, and unlawful-
ly implemented an antiunion policy and misled employees re-
garding information provided by the NLRB. It is well estab-
lished that statements that are merely misleading are not suffi-
cient to set aside an election. Midland National Life Insurance
Co., 263 NLRB 127, 133 (1982). I find that the evidence does
not support these claims and shall recommend that Objections 5
and 6 be overruled.
Objections 9 and 10
In support of this objection, the Union relies on a July 29 let-
ter sent by Turley to all unit employees that contained the fol-
lowing statement:

In Beaumont, our sister plant that is union-free, we enjoy an
excellent work place and open channels of communication
throughout the organization. . . . If we worked directly with
the employees—in a union free environment—much of the
bureaucracy and slowness to incorporating impacting and
meaningful change for our employees would be eliminated
. . . . I ask that you give us the opportunity during this year to
work with you and demonstrate that this is a change that you
will be happy with.

The Union alleges that these statements promised employees
benefits if they voted to decertify the Union. The Union also
cites the following language from the letter:

The majority of my 27 years in chemical plants has been in
non-union facilities. I know the importance of listening and
acting on employees concerns is key to having a safe, suc-
cessful, and efficient operation.

The Union argues that, in this statement, Turley is promising
employees to adjust grievances in exchange for decertifying the
Union. The quoted language, containing vague predictions of a
better work environment, without any specific promises, is not
sufficient to set aside the election. See Noah’s New York Ba-
gels, 324 NLRB 266, 267 (1997). Moreover, I find nothing in
the second statement that could be read as a solicitation for
employees to have their grievances adjusted by management.
Accordingly, I shall recommend that Objections 9 and 10 be
overruled.
Objections 12 and 18
There is no dispute that the Respondent designated Greg
Schrull, the employee who filed the decertification petition, to
be its election observer. The Union contends that this interfered
with employee free choice in the election because it gave em-
ployees the impression that the petitioner was acting on behalf
of the Respondent in pursuing the decertification petition. The
Respondent contends that there is nothing in the Board’s rules,
case handling procedures or case law that would prohibit an
employer from utilizing a decertification petitioner as its ob-
server, and there is no evidence that Schrull, in his capacity as
an observer, engaged in any misconduct. The Union has not
cited any cases dealing with this issue and I have been unable
to find any. The Board has held that, in order to maintain the
desired neutrality and integrity of Board-conducted elections, it
prohibits supervisors and agents of the employer, as well as
other employees “closely associated with management” from
serving as observers. Butera Finer Foods, 334 NLRB 43
(2001), and cases cited there. In Butera, the Board extended
that rule to bar nonemployee union agents from serving as a
union’s observer in a decertification election.
While I find the Respondent’s use of the petitioner as its ob-
server troubling, I am unable to conclude that this was objec-
tionable conduct. The Union offered no evidence that Schrull
engaged in electioneering or any other misconduct while serv-
ing as the Respondent’s observer. The Union also offered no
evidence that would show that Schrull was “closely associated”
with management other than its speculation that the Respondent
was behind the decertification effort. Accordingly, I shall rec-
ommend that Objection 12 and the remaining portion of Objec-
tion 18 be overruled.
Objection 19 and 20
In support of these objections, the Union relies on an email
dated July 25 from Turley to the employees. In the email,
Turley reminds employees that the Respondent has a bulletin
board policy for the Houston plant which must be followed.
After citing a recent incident where an email was found posted
in various locations of the change house that were not author-
ized, Turley closes by stating:

Any documents posted in the plant that are not authorized will
be removed.

The Union argues that Turley’s email was an overly broad
policy that disregarded the Union’s rights under the collective-
bargaining agreement to post on its bulletin boards in the plant.
I disagree. The evidence establishes that the Respondent did not
interfere with the Union’s right to post material on its bulletin
boards. The collective-bargaining agreement already contained
language requiring that all postings on union bulletin boards be
preapproved by the plant manager. In addition, the evidence
shows that Turley’s email was in response to complaints from
the Union that prodecertification employees had posted materi-
al on the walls in the change house. I find that the Union has
not met its burden of proof and shall recommend that Objec-
tions 19 and 20 be overruled.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1268
Objections 1 and 22
These objections allege that the Respondent initiated, orches-
trated/directed and supported the decertification petition. The
Union offered no direct evidence to support this claim, choos-
ing instead to rely on a “totality of evidence” theory to suggest
that the Respondent’s conduct between the filing of the petition
and the election proves the objection. While the Respondent did
commit unfair labor practices before the election, advised its
employees of its position that they did not need a union, and
campaigned in favor of decertification, these acts do not prove
that Schrull was acting as an agent of the Respondent when he
circulated and filed the petition. Mere rumor, conjecture, and
speculation as to the Respondent’s support of Schrull’s efforts
do not amount to evidence that the Respondent improperly
aided the decertification drive. Accordingly, I shall recommend
that Objections 1 and 22 be overruled.
In summary, I have sustained the Union’s Objections 2, 4, 7,
and 8, which conform to the unfair labor practice allegations
found to be meritorious above. I am recommending that the
remainder of the Union’s Objections, to the extent they have
not already been withdrawn, be overruled. As discussed above,
the sustained objections are sufficient to warrant setting aside
the election. Accordingly, I shall recommend that the Board
direct a second election, to be held after the unfair labor prac-
tices have been remedied, so that employees will have the op-
portunity to express their desires for or against union represen-
tation under circumstances free of interference.
CONCLUSIONS OF LAW
1. By soliciting employees to report the protected activities
of their coworkers, by impliedly threatening employees with
unspecified reprisals for engaging in protected activities, and by
informing employees that they had no rights under the collec-
tive-bargaining agreement at a time when it was still in effect,
the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. By issuing a written warning to Mark Saltibus on July 22,
2008, for engaging in protected solicitation on behalf of the
Union, the Respondent has interfered with, restrained, and co-
erced employees in the exercise of their statutory rights and has
engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
3. By issuing oral and written warnings to Fred Shepherd on
August 19 and September 5, 2008, respectively, the Respondent
has discriminated against its employees on the basis of their
union membership, activity, and support and has committed
unfair labor practices affecting commerce within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act.
4. By withdrawing recognition from and refusing to recog-
nize and bargain with United Steelworkers of America, Local-
13-227 since August 12, 2008; by making unilateral changes to
unit employees’ wages, hours, and other terms and conditions
of employment without affording the Union notice and an op-
portunity to bargain regarding such changes; and by bypassing
the Union and dealing directly with unit employees, the Re-
spondent has committed unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (5) and Sec-
tions 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. To remedy the unlawful discipline
imposed on Saltibus and Shepherd, I shall recommend that
Respondent be ordered to rescind Saltibus’ July 22, 2008
“written reminder” and Shepherd’s September 5, 2008 “written
confirmation,” remove any references to the discipline from
their files, and to notify them that this has been done and that
the unlawful discipline will not be used against them in any
way. To remedy the 8(a)(5) violations, I shall recommend that
the Respondent be ordered to recognize and, upon request,
bargain with the Union as the exclusive representative of its
unit employees, at least until there is a certification of the re-
sults of a valid decertification election, and to cease dealing
directly with unit employees regarding their wages, hours, and
terms and conditions of employment. I shall also recommend
that the Respondent be ordered to restore the Union’s bulletin
boards, resume processing grievances, and scheduling arbitra-
tions as necessary, and resume the checkoff and remittance of
union dues pursuant to the terms of the collective-bargaining
agreement. If the Union so requests, the Respondent shall also
be ordered to rescind the unilaterally implemented sickness and
accident and time off policies and any wage increases granted
since August 12, 2008.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended24
ORDER
The Respondent, Arkema, Inc., Houston, Texas, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting employees to report the protected activities of
coworkers, threatening employees with unspecified reprisals for
engaging in protected activity, and making statements inform-
ing employees that they had no rights under a collective-
bargaining agreement that was still in effect.
(b) Issuing written reminders, written confirmations, or oth-
erwise disciplining employees because they join, support or
assist the Union or engage in any other concerted activities
protected by Section 7 of the Act.
(c) Refusing to recognize and bargain upon request with
United Steelworkers of America, Local 13–227 (the Union).
(d) Unilaterally changing the wages, hours, and terms and
conditions of employment of employees in the unit represented
by the Union.
(e) Bypassing the Union and dealing directly with unit em-
ployees regarding their wages, hours, and terms and conditions
of employment.

24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
ARKEMA, INC. 1269
(f) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, re-
scind the July 22, 2008 “written reminder” issued to Mark Salt-
ibus and the September 5, 2008 “written confirmation” issued
to Fred Shepherd, remove any references to this discipline from
their files, and within 3 days thereafter notify them that this has
been done and that the unlawful discipline will not be used
against them in any way.
(b) Recognize and, on request, bargain with the Union as the
exclusive representative of the employees in the following ap-
propriate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the understanding
in a signed agreement:

All production and maintenance employees, including labora-
tory employees but excluding all office clerical employees,
plant clerical employees, guards, foremen and all other super-
visors as defined in the Labor Management Relations Act of
1947, as amended.

(c) Restore the Union’s bulletin boards, resume the pro-
cessing of grievances and the scheduling of arbitrations, as
necessary, and resume the checkoff and remission of union
dues pursuant to the terms of the collective-bargaining agree-
ment.
(d) If the Union so request, rescind the unilaterally imple-
mented sickness and accident and time off policies and wage
increases that were granted since August 12, 2008.
(e) Within 14 days after service by the Region, post at its fa-
cility in Houston, Texas, copies of the attached notice marked
“Appendix B.”25 Copies of the notice, on forms provided by the
Regional Director for Region 16, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since July 22,
2008.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.

25 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DIRECTION OF SECOND ELECTION
IT IS FURTHER ORDERED that a second election by secret ballot
shall be held among the employees in the unit found appropri-
ate, whenever the Regional Director deems appropriate. The
Regional Director shall direct and supervise the election, sub-
ject to the Board’s Rules and Regulations. Eligible to vote are
those employed during the payroll period ending immediately
before the date of the Notice of Second Election, including
employees who did not work during the period because they
were ill, on vacation, or temporarily laid off. Also eligible are
employees engaged in an economic strike that began less than
12 months before the date of the election directed here and who
retained their employee status during the eligibility period and
their replacements. Jeld-Wen of Everett, Inc., 285 NLRB 118
(1987). Those in the military services may vote if they appear
in person at the polls. Ineligible to vote are employees who
have quit or been discharged for cause since the payroll period,
striking employees who have been discharged for cause since
the strike began and who have not been rehired or reinstated
before the date of the election directed here, and employees
engaged in an economic strike that began more than 12 months
before the election date and who have been permanently re-
placed. Those eligible shall vote whether they desire to be rep-
resented by United Steelworkers of America, Local 13-227.
To ensure that all eligible voters have the opportunity to be
informed of the issues in the exercise of their statutory right to
vote, all parties to the election should have access to a list of
voters and their addresses that may be used to communicate
with them. Excelsior Underwear, 156 NLRB 1236 (1966);
NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969). According-
ly, it is directed that an eligibility list containing the full names
and addresses of all eligible voters must be filed by the Em-
ployer with the Regional Director within 7 days from the date
of the Notice of Second Election. North Macon Health Care
Facility, 315 NLRB 359 (1994). The Regional Director shall
make the list available to all parties to the election. No exten-
sion of time to file the list shall be granted by the Regional
Director except in extraordinary circumstances. Failure to com-
ply with this requirement shall be grounds for setting aside the
election whenever proper objections are filed.
APPENDIX A
Petitioner’s Objections to Conduct of the Election
and to Conduct Affecting the Results of the Election
1. The Employer through its agent, Greg Schrull, unlawfully
initiated, orchestrated/directed, and supported the filing of the
Petition in this proceeding on July 17, 2008.
2. On, or about, July 22, 2008, the Employer unlawfully dis-
ciplined an employee, because he engaged in protected concert-
ed and union activities.
3. On July 22, 2008, the Employer created the impression of
surveillance of its employees union activities by informing an
employee that he had, on an unspecified date, made threatening
and inappropriate remarks to a laboratory employee concerning
her unwillingness to join the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1270
4. On July 22, 2008, the Employer threatened an employee
with discharge, if he continued to engage in protected concerted
and union activities.
5. On, or about, July 23, 2008, the Employer promulgated,
and unilaterally implemented, an anti-union policy, which un-
lawfully interfered with the Section 7 Rights of the employees.
6. On, or about, July 23, 2008, the Employer unlawfully
misled the employees by informing that:

A) “. . . the Notice sent by the NLRB, which will in-
clude…important information describing how to cast your
vote correctly (for example, to vote against the union, you
would vote “NO”)”, and,
B) “No punishment—the union cannot seek . . . pun-
ishment of an employee for not being a member of the un-
ion, even if the employee has paid an initiation fee and
ongoing union dues.”

7. On, or about, July 23, 2008 the Employer threatened its
employees with reprisals, if they engaged in protected concert-
ed activities and union activities.
8. On, or about, July 23, 2006 the Employer solicited com-
plaints against employees, who engaged in protected concerted
and union activities.
9. On, or about, July 29, 2008 the Employer promised its
employees “. . . an excellent work place and channels of com-
munication throughout the organization.” if they voted to de-
certify the Union. [Emphasis added.]
10. On, or about, July 29, 2008 the Employer promised its
employees, that if they voted to decertify the Union, the Em-
ployer would “. . . demonstrate that this is a change you will be
happy with.”
11. [Withdrawn]
12. On August 11, 2008 the Employer unlawfully designat-
ed the Petitioner to serve as the Employer’s observer during the
decertification election, that was held on August 11 and 12,
2008.
13. [Withdrawn]
14. [Withdrawn]
15. [Withdrawn]
16. [Withdrawn]
17. [Withdrawn]
18. The conduct of the Employer, . . . as set forth in para-
graph 12 . . . above, created the impression that the NLRB sup-
ported the Petitioner’s efforts to have the employees vote to
decertify the Union through the Board’s election process.
19. On, or about, July 25, 2008, the Employer promulgated
an unlawful bulletin board policy in violation of the Act.
20. On, or about, July 25, 2008, the Employer unlawfully
threatened its employees with reprisals, if they posted items on
the plant bulletin board, which were not pre-approved for post-
ing by the Employer.
21. [Withdrawn]
22. Prior to, and during the critical period, July 17, 2008
through August 12, 2008, the Employer assisted and supported
the Petitioner’s efforts to decertify the Union by encouraging
the bargaining unit employees to vote to decertify the Union in
violation of the Act.
APPENDIX B
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
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.

WE WILL NOT solicit you to report the protected activities of
coworkers, nor threaten you with unspecified reprisals for en-
gaging in protected activity, nor make statements informing
you that you have no rights under a collective-bargaining
agreement that is still in effect.
WE WILL NOT issue “written reminders,” “written confirma-
tions,” or other discipline to you because you join, support or
assist the Union or engage in any other concerted activities
protected by Section 7 of the Act.
WE WILL NOT refuse to recognize and bargain upon request
with United Steelworkers of America, Local 13-227 (the Un-
ion) as your exclusive collective-bargaining representative.
WE WILL NOT unilaterally change you wages, hours, and
terms and conditions of employment.
WE WILL NOT bypass the Union and dealing direct with you
regarding your wages, hours, and terms and conditions of em-
ployment.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s Order,
rescind the July 22, 2008 “written reminder” issued to Mark
Saltibus and the September 5, 2008 “written confirmation”
issued to Fred Shepherd, remove any references to this disci-
pline from their files, and WE WILL, within 3 days thereafter,
notify them that this has been done and that the unlawful disci-
pline will not be used against them in any way.
WE WILL recognize and, on request, bargain with the Union
and put in writing any agreement reached on terms and condi-
tions of employment for our employees in the following appro-
priate unit:

All production and maintenance employees, including labora-
tory employees but excluding all office clerical employees,
plant clerical employees, guards, foremen and all other super-
visors as defined in the Labor Management Relations Act of
1947, as amended.

ARKEMA, INC. 1271
WE WILL restore the Union’s bulletin boards, resume the pro-
cessing of grievances and the scheduling of arbitrations, as
necessary, and resume the checkoff and remission of union
dues pursuant to the terms of the collective-bargaining agree-
ment.
WE WILL, if the Union so request, rescind the unilaterally
implemented sickness and accident and time off policies and
wage increases that were granted since August 12, 2008.

ARKEMA, INC.