Atlantic Forest Products, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1987

282 N.L.R.B. 855 (N.L.R.B. 1987)

ATLANTIC FOREST PRODUCTS
Atlantic Forest Products, Inc. and Local 20408,
United Warehouse, Industrial and Affiliated
Trades Employees Union . Cases 11-CA-9951
and 11-RC-4938
23 January 1987
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JOHANSEN, BABSON, AND
CRACRAFT.
On 17 January 1983 Administrative Law Judge
David S. Davidson issued the attached decision.
The Respondent filed exceptions and a supporting
brief,," and the General Counsel filed an answering
brief, cross-exceptions, and a brief in support of the
cross-exceptions. The Respondent filed an answer-
ing brief to the General Counsel's cross-exceptions.
The National Labor Relations Board has delegat-
ed its authority in this' proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions as modified.
The judge found that the Respondent's instruc-
tions to employees to remove their union buttons
were effectively cured by their prompt rescission,
and, therefore, did not violate Section 8(a)(1).3 We
affirm this finding.4 The judge also found, and we
agree, that the Respondent violated Section 8(a)(1)
by watching more closely Joe Carr's in-plant ac-
tivities because of his union support. We also affirm
the judge's findings, only for the reasons given
below, that the Respondent unlawfully interrogated
David, Norf]eet, and that the Respondent violated
Section 8(a)(1) by withholding a regularly sched-
uled 1 January 19815 wage increase because of the
employees' union activities.
Unlike the judge, however, we find below that
the Respondent's speeches to its employees consti-
1 The Respondent has requested oral argument . The request is denied
as the record , the exceptions , and the briefs adequately present the issues
and the parties' positions
2 The Respondent has excepted to, some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
8 No exceptions were filed to the judge's finding that the no-solicita-
tion rule's lawfulness was not at issue. We observe, however, that T.R.W.
Bearings Division , 257 NLRB 442 (1981), cited by the judge , was over-
ruled by Our Way, Inc., 268 NLRB 394 (1983).
4 In doing so, we find it unnecessary to pass on the judge 's comments
involving the alleged differences in curing in-plant solicitation unfair
labor practices as opposed to other unfair labor practices.
5 All dates are in 1981 unless otherwise stated.
855
tute protected speech under Section 8(c) of the
Act.
Finally, we adopt the judge's recommendation to
set aside the election based on objections corre-
sponding to the unfair labor practices, and reject
the Respondent's exceptions to the judge's denial
of its motion to dismiss the election objections for
improper and untimely service.
1. Addressing first the motion to dismiss, the Re-
spondent argues the Union failed to comply with
Section 102.69(a) of the Board's Rules anti Regula-
tions requiring that objections be filed within 5
days after the tally of ballots has been furnished,
and formerly requiring that copies be served "im-
mediately" on the other "parties."7 The Respond-
ent argues the Union improperly served, its lawyer,
rather than the corporation itself. The Respondent
also argues the objections were not served by reg-
istered mail as required by Section 102.112 ofthe
Board's Rules and Regulations, but by regular mail.
Finally, the Respondent alleges the objections were
not served "immediately" following the 8 January
election because they were postmarked 15 January,
and not received until 19 January. We find no
merit in the Respondent's exceptions.
In Alfred Nickles Bakery, 209 NLRB 1058, 1059
(1974), the Board stated:
[I]n order to support a variance or deviation
from the clear requirements of the Board's
Rules, there must be some showing that there
has been an honest attempt to substantially
comply with the requirements of the Rules, or,
alternatively, a valid and compelling reason
why compliance was not possible within the
time required by the' Rules.
The Board further stated, however, that its Rules
and Regulations are not to be interpreted with a
"`slavish' adherence to form rather than sub-
stance,"" nor as a "strict code with inflexible mean-
ing irrespective of circumstances."
With these principles in mind, we first turn to
the Respondent's arguments that service was inad-
equate because its lawyer, rather than the corpora-
tion, was served by regular, and not registered,
mail. Although the corporation's lawyer is not a
"party" within Section 102.8(a)'s definition, we are
6 The election was conducted 8 7anuary 1981 Sixty-one votes were
cast for, and 113 against , the Union, with 5 nondeternnnative challenged
ballots
7 The Union 's objections were dated and served 15 January 1981 On
14 September 1981, the Board amended Sec 102.69 (a) to provide that the
Regional Director, and not the objecting party, serve a copy of the ob-
jections on each of the other parties to the proceeding . The case at hand
is governed by the rules prior to the amendment. Saeger Carbide- Corp.,
267 NLRB 47 fn. 2 (1983).
8 209 NLRB at 1059
9 Nestle Co., 240 NLRB 1310, 1311 (1979).
282 NLRB No. 105
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unable to find that service on the corporation's
lawyer is not an "honest attempt to substantially
comply with the requirements of the Rules." More-
over, the Respondent does not contend that it did
not receive actual notice of the Union's objections.
We further find that service by regular mail does
not require, dismissal of the objections. Section
102.112 requires "[s]ervice of papers . . . shall be
made by registered mail, or by certified mail, or in
any manner provided for the service of papers in a
civil action by the law of the State in which the
hearing' is pending." In Alleghany Warehouse Co.,
256 NLRB 44, 45 (1981), the Board found the
union's service of its objections on the employer by
regular mail was "technically not in compliance
with our rules regarding the_ proper manner of
service." Relying on Alfred Nickles, above, howev-
er, the Board refused to exalt "form over sub-
stance," and denied the employer's motion to dis-
miss the objections because the union made actual
service on the employer and provided contempora-
neous evidence of that service. Here, like Alleghany
Warehouse, the union made actual service con-
firmed by a certificate of service.
We now turn to the Respondent's argument that
it was not served "immediately" with copies of the
objections. Section 102.69(a) requires that "[w]ithin
5 days after, the tally of ballots has been furnished,
any party may file [objections]" and formerly re-
quired "[c]opies of such objections shall immediate-
ly be served on the other parties by the party filing
them, and a statement of service shall be made"
(emphasis added). Here, the tally of ballots was fur-
nished 8 January 1981, and on 15 January 1981 the
Union filed timely objections to the Respondent's
conduct. The copies of such objections were
mailed 15 January. The date of service is the date
of mailing. See Section 102.113 of the Board's
Rules and' Regulations. As copies of the objections
were mailed to the Respondent 15 January, we find
they were served "immediately" within Section
102.69(a)'s meaning. Accordingly, the judge prop-
erly denied the Respondent's motion to dismiss the
Union's objections.
2. The judge found that Supervisor Mack Jones
unlawfully interrogated David Norfleet regarding
his union activities.10 We agree for these"reasons.
According to Norfleet's credited testimony, he
began wearing a union button to work after notices
of the election were posted. Supervisor Richard
10 Although the complaint alleges that Jones unlawfully interrogated
several employees "concerning their union activities and sentiments," the
General Counsel only produced evidence on Norfleet's interrogation
Dixon approached him and requested he remove
the button.''
Norfleet also testified that on one occasion Su-
pervisors Ted Wright and Richard Dixon called
him from his job into the breakroom and said,
"David, don't think that we are picking on you be-
cause we are not . . . [w]e want you to stay away
from [fellow employee and union supporter] Joe
Carr, in fact, don't go nowhere [sic] down there
unless someone send[s] you." 12 Norfleet stated that
he told Wright and Dixon that he knew they were
"bothering me because you know [sic] that I am a
100 percent for the union."
Norfleet further testified that on the day before
the election Supervisor Mack Jones waited until he
was alone with Norfleet in the breakroom and told
him to close the door. Norfleet testified Jones said,
"Dave, I am not supposed to talk to you but just
between me and you . . . [w]ell, how are you
going to vote?" Norfleet told him that he was
going to vote "yes."
In Rossmore House, 269 NLRB 1176 (1984), affd.
sub nom. Hotel Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985), the Board returned to
the longstanding "totality of the circumstances"
test in cases involving alleged interrogations of
open and active union supporters. The Rossmore
House Board stated it would "weigh the setting
and nature of interrogations involving open and
active union supporters," and listed four criteria in
footnote 20 for determining whether such question-
ing is unlawful under the test: (1) the background;
(2) the nature of the information sought; (3) the
identity of the questioner; and (4) the place and
method of interrogation's
We first find that Norfleet was an open and
active union supporter. Norfleet openly declared
his union ties by wearing his union button and by
telling two supervisors of his "100 percent" sup-
port of the Union.
We further find, under the totality of the circum-
stances, that the Respondent's questioning of Nor-
fleet was an unlawful interrogation. Applying the
criteria recited in Rossmore House's footnote 20,
above, we conclude that Jones' questioning of Nor-
fleet was accompanied by the Respondent's unlaw-
ful monitoring of Joe Carr's in-plant activities. As
noted, two supervisors told Norfleet to "stay
away" from Carr. Although Jones is a lower level
11 As noted, we affirm the, Judge 's finding that the Respondent's
prompt rescission of its instructions to employees to remove their ninon
buttons effectively cured any violations.,
is We have affirmed the judge's finding that the Respondent violated
Sec. 8(a)(1) by watching more closely Joe Carr's in-plant activities be-
cause of his known union support . The General Counsel does not allege
that Wright's and Dixon's remarks to Norfleet violated the Act.
13 269 NLRB at 1178 fn. 20.
ATLANTIC FOREST PRODUCTS 857
production supervisor , he isolated Norfleet in the
breakroom and asked Norfleet how he was going
to vote in the election the next day , acknowledging
as he did so an awareness of the inquiry's impropri-
ety. Under the circumstances , we find Jones' ques-
tioning Norfleet coercive and in violation of Sec-
tion 8(a)(1) of the Act.,
3. The complaint alleges , and the judge found,
that the Respondent violated Section 8 (a)(3) and
(1) by withholding ' a regularly scheduled 1 January
wage increase . 14 We agree only for the following
reasons . The election, as stated , was scheduled and
held 8 January . The employees first received notice
that the annual wage increase would not be given
in an 18 December 1980 employee newsletter:
DELA Y IN JANUAR Y INCREASE
Many of you have asked what the company
is going to do about a pay raise in January. I
regret to notify you that the January adjust-
ments in wage rates and benefits will have to
be postponed for all employees involved in the
pending NLRB Election.
This delay is required to avoid the appear-
ance of vote-buying by the company in view
of the fact that the NLRB will hold an elec-
tion on January 8 . Our counsel has advised us
that wage increases at this time might be con-
sidered to be an unfair labor practice and that
the company should not take this, risk.
As ' you know, AFP is paying, and always
has paid, above the best rates for this area.
With or without a union, we intend to follow
this policy. There has never been a need for
any person from the outside to put pressure on
us to pay the best rates we can.
Without a union, we are in a position to
adjust rates as conditions require . You all
know that we adjust rates twice a year, as we
are able, and as it is needed . Under union con-
tracts, wage rates are fixed , usually for periods
of one year-sometimes longer.
Normally, during the period of negotiations
with the union all wage rates and benefits are
frozen at the existing level.
To sum up, in view of the election on Janu-
ary 8th, we cannot say what increase there
will be.
I hope each of you will vote no on January
8th so we can once again deal with each other
free of all these rules.
The :General Counsel also presented the testimo-
ny of employees Willie Davis, Erie Downey, I s
David Norfleet, and Joe Carr. According to Davis'
credited testimony, Supervisor Tim Briggs called a
department meeting in December, and in response
to an employee question about the withheld wage
raise, said the Respondent,"really couldn't do any-
thing now until all of this union stuff was over."
Downey testified he asked his supervisor, Mike
Harris, sometime in December why there would be
no wage increase. According to Downey, Harris
replied that it was "because of the union campaign
that was going on . . . during the campaign, no
raises or anything were supposed to be given out."
Carr also testified, Harris told the maintenance de-
partment employees that they would not get the
raise "because of the union campaign."
Norfleet also testified that Supervisors Richard
Dixon, Ted Wright, and Mack Jones told him the
employees would not receive the raise "because
that would be a sort of a bribe, the union might
look at it as a bribery, saying that they might give
us too much or, they would be saying that they
would be buying us for us [sic] to vote against the
union, and that is why they couldn't give us the
raise."
Finally, it is uncontradicted that on the day
before the election Industrial Relations Manager
Tom Boag stated in a speech to employees that
"[i]n bargaining, all wages and benefits are negotia-
ble . . . . everything starts from scratch and even
the benefits and wages you now ' have are bargaina-
ble . . . [w]ages might go up or down or stay the
same."
In defending its withholding of the wage in-
crease, the Respondent relies on the decision in
Uarco Inc., 169 NLRB 1153 (1968). In Uarco, the
employer posted and distributed a notice to em-
ployees informing them that an annual wage and
benefit adjustment would be postponed to "avoid
the appearance of vote-buying" in the upcoming
representation election. A month later, Uarco's
plant manager gave a prepared campaign speech
justifying its actions and also sent a letter to em-
ployees reiterating its intent to pay the "going
wage rates" in the area, "with or without a
union." 16 After the election, which the Union lost,
the employer adjusted wages and benefits accord-
ingly.
The Board reversed the Regional Director's
finding that the employer's announcement concern-
ing the withheld annual wage increase was objec-
14 No party excepts to the judge's finding that the Respondent, "for at
least several years," granted wage increases on 1 January and 1 July.
15 In his decision, the judge inadvertently referred to "Downing,"
rather than "Downey " We correct the error
16 169 NLRB at 1154
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tionable, concluding, inter alia, that the employer's
"announcement . . . and its subsequent campaign
statements [did not] shift to the [union] the onus for
the postponement of adjustments in wages and ben-
efits for employees it sought to represent J nor did
it] disparage and undermine the [union] by creating
the impression. that it stood in the way of their get-
ting planned wage increases and benefits." 17
Rather, the Board found that the employer in
Uarco "made clear in its campaign statements .. .
that whether or not its employees were represented
by a union, it planned [to adjust wages] into con-
formity with prevailing rates in the area; and that
the sole purpose of its announcement . . . was to
avoid the appearance that it sought to interfere
with their free choice in any elections which might
be directed."18
Here, the judge found that the first two para-
graphs of the 18 December employee newsletter
(reproduced above) were "virtually identical" to
the language, found permissible in Uarco, 169
NLRB at 1153. The judge found that the subse-
quent paragraphs, however, weakened the Re-
spondent's assurances it would continue to follow
the same wage policy "with or without a union."19
The judge found that the fourth and fifth para-
graphs implied there would be an immediate wage
increase without a union, but "a , delay for an in-
definite period of negotiations for an uncertain in-
crease with a union."
The judge further found, unlike Uarco, that the
supervisors' responses to employee questions about
the withheld wage increase put the onus for the
wage postponement on the Union. Finally, the
judge,found Boag's statement on the day before the
election that "[i]n bargaining . . . everything starts
from scratch and even the benefits and wages you
now have are bargainable" was distinguishable
from Uarco's facts, where assurances that the wage
policy would remain the same were "repeated" fol-
lowing the wage postponement's announcement.
The judge found that the "evenhanded impression"
created by the 18 December newsletter's opening
paragraphs, therefore, was repudiated by the super-
visors' subsequent statements and Boag's preelec-
tion speech.
It is well established that an`employer is required
to proceed with an expected wage or benefit ad-
justment as if the union were not on the scene.
E.g., Stumpf Motor Co., 208 NLRB 431, 433 (1974);
Dan Howard Mfg. Co., 158 NLRB 805, 813 (1966),
17 Ibid.
18 Ibid.
enfd. in pertinent part 390 F.2d 304 (7th Cir. 1968);
cf. Dynatronics, 186 NLRB 978, 979 (1970). An ex-
ception to this rule, however, is that an employer
may postpone such a wage or benefit adjustment so
long as it "[makes] clear" to employees that the ad-
justment would occur whether or not they select a
union, and that the "sole purpose" of the,adjust-
ment's postponement is to avoid the appearance of
influencing the election's outcome. Uarco, above at
1154. See also Heckethorn Mfg. Co., 208 NLRB
302, 306 (1974), enfd. 504 F.2d 425 (6th Cir. 1974)
(no violation found in withheld annual wage in-
crease where, inter alia, there was "no indication
that the Company intended the withholding of the
wage increase to have an effect upon the outcome
of the election, or that the employees believed such
to have been the case.") In making such announce-
ments, however, an employer must avoid attrib-
uting to the union "the onus for the postponement
of adjustments in wages and benefits," or
"disparag[ing] and undermin[ing] the [union] by
creating the impression that it stood in the way of
their getting planned wage increases and benefits."
Uarco, above at 1154.
Applying these principles to this case, we fmd
that the Respondent unlawfully attributed to the
Union the withholding of the 1 January wage in-
crease. We agree with the judge that the "even-
handed impression" created by the opening three
paragraphs of the 18 December newsletter was re-
pudiated by the newsletter's remaining content and
by Harris' subsequent statements .2 ° Unlike Uarco,
where the employer "made clear" to employees
that, "whether or not [they] were represented by
the union" the employer would continue to con-
form with prevailing wage rates, the Respondent's
statements, at best, conveyed conflicting signals to
employees as to its motivation for postponing the
wage increase . Thus, the newsletter began by tell-
ing employees the wage delay is "required to avoid
the appearance of vote-buying" and that "[w]ith or
without a union, we intend to follow [its policy of
paying `above the best rates for this area']." The
Respondent, however, then compared its freedom
without a union to adjust wages "as conditions re-
quire" to wage rates under a union contract which
are "frozen at the existing level," and concluded by
stating , that "in view of the election on January
8th, we cannot say what increase there will be."
We agree with the judge that such statements sug-
gest an "immediate [wage] increase without a
union but a delay for an indefinite period of negoti-
19 Although not discussed by the judge, the employee newsletter's 2 Unlike the judge, we do not find the statements attributed to Dixon,
third paragraph is similar to the excerpt from the plant manager's speech Wright, and Jones, or Boag's statements (discussed below) improperly at-
m Uarco, above at 1154. tributed the wage postponement to the Union.
ATLANTIC FOREST PRODUCTS 859
i
ations for an uncertain increase with a union," and,
accordingly, find the newsletter improperly attrib-
uted the wage postponement to the Union.
Also, certain supervisory statements following
the newsletter's distribution tended to shift the
onus to the Union for the wage postponement and
otherwise disparaged the Union by creating an im-
pression "that it stood in the way of their getting
planned wage increases and benefits." Uarco, above
at 1154. Thus, as previously recounted, Supervisor
Harris stated that the wage postponement was be-
cause of the "union," without clarifying that the
policy of reviewing wages would continue with or
without the Union. Downey testified he asked
Harris why there would be no wage increase. Ac-
cording to Downey, Harris replied that it was "be-
cause of the union campaign that was going on
... during the campaign, no raises or anything
were supposed to be given out." Carr also testified
Harris told the maintenance department employees
that they would not get the raise "because of the
union' campaign." Cf., e.g., Centre Engineering, 253
NLRB 419, 421 (1980) (employer unlawfully attrib-
uted to the union its failure to grant a wage in-
crease, because, inter alia, "statements [that a raise
would have been given but for the union] were not
made in the context of the [employer] explaining
that benefits were being withheld to avoid influenc-
ing the outcome of election.") Accordingly, we
conclude the Respondent's announcement and
withholdings' of the 1 January wage increase vio-
lated Section 8(a)(1) of the Act.
4. We now turn to the judge's findings that
President Sandy Fulton's22 5 January speech un-
lawfully' threatened employees with plant closure,
and that General Manager Bruce Weber's and In-
dustrial Relations Manager Tom Boag's speeches
on 7, January unlawfully threatened job loss and
plant closure if employees unionized. We reverse.
Fulton's Speech
On 5 January Fulton delivered a prepared
speech to around 200 employees on the first and
second shifts. The speech was tape-recorded and
transcribed, and its content, therefore, is undis-
puted.ss Fulton opened his remarks by reviewing
2i The General Counsel does not except to the judge's findings that
the Respondent shortly after the election granted a general wage increase
retroactive to 1 January, nor did the General Counsel seek any remedy
ordering the Respondent to reimburse employees for the withheld wage
increase . See, e.g., Otis Hospital, 222 NLRB 402, 405 (1976).
22 At all relevant times, Fulton was president of Atlantic Forest Prod-
ucts, Inc. and also vice president and general manager of the parent cor-
poration , MacMillan Bloedel Building Materials, U.S
23 Although four employees testified to Fulton's speech, only employ-
ee Downey's testimony contradicted the speech transcript. Downey's tes-
timony was not credited by the judge.
the structure of Atlantic Forest Products, Inc. and
its parent, MacMillan Bloedel,, and described their
corporate objectives to increase productivity and
product quality, to maximize the products extract-
ed from raw material, and to increase and expand
Atlantic Forest's timber or raw material base. He
emphasized that "good profits" were required to
support these objectives, and that although "Mac-
Millan Bloedel is not an anti-union company [and
has] an excellent working relationship with lots of
[its] employees," it had also had some "bad experi-
ences" within the organization.
Fulton then proceeded to discuss eight unionized
operations of the organization which were closed,
or expected to close, because they were "unprofit-
able," some of which had also incurred strikes.
Fulton also told employees that "work stoppages
cost [the Company] something like 29 million dol-
lars in 1979," money that the Company "now don't
[sic] have to buy more trees for this operation."
Fulton also singled out a former plant in British
Columbia that went on strike for "totally unreason-
able demands" and four other plants that
"[couldn't] make money . . . [because they were]
operating with Long Shoreman Unions [sic],
[e]xtremely high labor rates and the productivity is
very low . . . the people don't want to work."'
Fulton further stated:
Being unionized is no guarantee that we will
be successful. You should know now that we
will never grant any unreasonable demand
made upon us by anybody-union or other-
wise-if it makes this plant or any of our other
plants uncompetitive. To do so is absolutely
suicidal for that operation.
Fulton then turned to Atlantic Forest's own per-
formance in 1980 and his prediction for 1981. The
Company, he said, was not expected to make any
money at all in 1980 because of snow in January,
February, and March; high interest rates in April
through June; equipment problems; and poor prod-
uct prices. Although things were "improv[ing],"
Fulton said that the Respondent had lost $250,000
between 1 July and the end of the year, despite
spending $500,000 "upgrading," repairing, and
buying logging equipment. In 1981, however,
Fulton predicted "good news," pointing out "five
major ingredients" needed for Atlantic Forest
Products to be profitable: good markets and cus-
tomers, trees, a good manufacturing facility, money
for investment and inventory, and "[m]ost impor-
tant of all" a "stable work force . . . particularly
well trained, highly skilled." Fulton reviewed each
ingredient's status for 1981, and told the employees
the Company had a "good work force . . . [of]
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
well trained and highly skilled [employees]" and
that "[the Company] has spent lots of time and
money and will definitely be spending more."
Fulton concluded, as follows: -
I want to impress upon you what we don't
want to do. MacMillan Bloedel does not want
to do anything to encourage any of you to
leave it. That's why we pay competitive wage
rates and benefits. That's why we kept every-
body employed when we didn't have any logs.
When we couldn't sell our products because
no one would buy them, that's why we built
inventory. To keep you people here, who are
valuable employees, we don't want to lose
you.
When you weren't making any money, I
mean, look back over the last six months-
we're losing money, we kept putting more
money into this operation. We didn't give up.
MacMillan Bloedel has done this and I'm a
part of it. (?) [sic] and frankly, we're optimistic
about Atlantic Forest Products and the future
of this operation. We have faith in this oper-
ation, in you, our employees.
We've had our difficulties, we've made mis-
takes. I think we're correcting them, I think
we're working at continuing to make progress.
(?) [sic] We're committed to that program. If
we don't correct our mistakes or provide a
good wage for you, you're gonna leave us, and
we don't want that to happen. I think it's your
turn now. I think it's your turn to convince
MacMillan Bloedel that you have faith in the
company and that MacMillan Bloedel should
continue to have a very positive attitude
toward Atlantic Forest Products and its em-
ployees.
MacMillan Bloedel is committed, and it
should be obvious to all of you now. I want
you to show your commitment on Thursday
by voting no to an unknown and the uncer-
tainty of an unknown union. -
I want to look forward to Thursday. I want
to look forward to a profitable operation.
We spent a lot of time and money over the
last period talking to you about the union.
Trying to make sure that we could tell you ev-
erything we know about this , (?) [sic] to help
you not make a mistake.
Personally I'm tired of losing (?) [sic] Lose
time, lose production, lose profit, lose lumber
we could make. I'm tired of losing all of that.
I think you're probably tired of all the distrac-
tions.
Make no mistake. I want you to vote no on
January 8th and I want all of us to get back to
our job. Our job is to make Atlantic Forest
Products a successful, profitable operation.
That's our job (?) [sic].
I would like to be here for the election on
Thursday, but I can't. I have to go to Vancou-
ver. All the senior managers in MacMillan
Bloedel from all over the world are meeting
there to discuss all of our operations and the
future of those operations.
I will be asked to give a report on Atlantic
Forest Products. Nothing would please me
more than to include in my report that the ma-
jority of you, our employees, voted no to keep
this New York union out of our operation. I
want to report that there's no question about
Atlantic Forest Products having a stable, re-
sponsible work force. Thank you for your
time.
In support of his conclusion that Fulton's speech
unlawfully threatened employees with plant clo-
sure, the judge, while finding no explicit threat of
plant closure, found Fulton's statements created in
"employees' minds a firm connection between past
plant closings and unionization." The judge princi-
pally relied on Fulton's statements describing Mac-
Millan Bloedel's "bad experiences," and that the
"common operative fact stated [by Fulton] was
that the plant was unionized," thus "firmly
plant(ing)" the idea that the same could happen to
Atlantic Forest Products, Inc. The judge further
found that certain of Fulton's statements implied24
that if employees voted for the Union, MacMillan
Bloedel would question the employees' faith and
"would not continue to have a positive attitude
toward them, and stability and responsibility of the
work force would be in doubt." The judge con-
cluded that an "interested employee" could only
draw a conclusion that the plant's future was in
jeopardy, and that it was "likely, to become the
next `bad experience' of MacMillan Bloedel."
We agree with the judge that Fulton never ex-
plicitly stated that the plant would close if the
Union won the election.25 Unlike the judge, how-
a4 The judge isolated the following statements by Fulton: the granting
of unreasonable union demands would be "suicidal for that operation", it
was the employees' turn to "convince MacMillan Bloedel that [they]
have faith in the company and that [the Company ] should continue to
have a very positive attitude toward Atlantic Forest Products and its em-
ployees"; and that Fulton wanted to report to management that there
was "no question about Atlantic Forest Products having a stable, respon-
sible work force."
as In so agreeing , we find that this fact alone distinguishes the case
from Stride-Rite Corp ., 228 NLRB 224, 230-234 (1917), relied on by the
judge. Unlike here, in Stride-Rite "both [in] the first distribution [to em-
ployees] and again just 2 days before the election, the employees were
expressly told that the future of their jobs and the plant were dependent
on the results of the election" (emphasis added). Id. at 233. Stride-Rite is
also distinguishable because the employer in that case "repeatedly" re-
Continued
ATLANTIC FOREST PRODUCTS 861
ever, we are unable to find that Fulton's statements
implied plant closure for unlawful rather than eco-
nomic reasons . The judge, as noted, principally
relied on Fulton's statements describing the parent
corporation's "bad experiences," in which the
"common operative fact" in each case was that the
plant was unionized. The judge further found that
certain of Fulton's comments implied that if the
Union won the election, Atlantic' Forest Products
would be the next "bad experience" of the corpo-
ration.
The judge's fmdings in this respect do not with-
stand analysis, however, because Section 8(c) per-
mits employers truthfully to describe their experi-
ences with unions, so long as the communications
"do not contain a 'threat of reprisal or force or
promise of benefit."' NLRB v. Gissel Packing Co.,
395 U.S. 575, 618 (1969). The General Counsel
does not contest the factual accuracy of the parent
corporation's "experiences" with its unions. 2 6
Further, Fulton never stated that any of the
plants were closed due to union animus, and ex-
pressly assured employees at the beginning of his
speech that "MacMillan Bloedel is not an anti-
union company" and "[t]hat if anybody thinks that,
they're wrong," because it had "an excellent work-
ing relationship with lots of our employees" with
"lots of 'successful, " very profitable operations
around the world."
That Fulton then reported on some unionized
plants which were closed, or expected to close (the
"bad experiences") because of "unprofitable" oper-
ations, is precisely the type of speech Section 8(c)
protects. As noted, these statements are evidently
accurate descriptions of the Respondent's, experi-
ences with unions, and an employer is not limited
by Section 8(c) to reporting only on favorable, as
opposed to unfavorable, facts.. See, e.g., P. R. Mal-
lory & Co. v. NLRB, 389, F.2d 704, 707 (7th Cir.
1967) ("the company had the -right to support its
opinions by citing past experiences with the same
union in other plants which the company operat-
ed"); Rexall Corp., 265 NLRB 121, 122 (1982),
minded employees of the fact that it did not "own [its] building nor [had]
it signed a lease for it," and emphasized as "not true" a union assertion
that the employer "was not [in town] on a month-to-month basis, but
must stay ... no matter what happens .. . until [a later date,]" Id. at
231-233.
26 The General Counsel in her brief states that Fulton's remarks were
not "knowledgeable predictions based upon economic facts" because of
the eight plants Fulton stated had closed or as experiencing layoffs,
Fulton allegedly testified that he did not know whether the Ohio ware-
house was unionized, nor whether the Longshoremen represented the
employees at three other facilities . We have carefully examined Fulton's
testimony and the transcript of his speech to employees , and disagree
with the General Counsel's characterization of his testimony. Thus,
Fulton in his speech never implied that the Ohio and Camden, New
Jersey warehouses were unionized . Rather, Fulton in the speech and his
testimony stated that the Longshoremen represented the Baltimore,
Maryland, and the Tampa, Florida warehouses.
enfd., in- relevant part, revd. in part and remanded
725 F.2d 748 (8th Cir. 1984), supp. decision 272
'NLRB 316 (1984) (no violation where, inter alia,
the employer "merely brought to his listeners' at-
tention a partisan account of the drawbacks, rather
than the advantages, associated with union repre-
sentation"); NLRB v. Village IX, Inc., 723 F.2d
1360, 1368 (7th Cir. 1983) (restaurant owner's state-
ment during union campaign about, inter alia,
"competitive nature of restaurant business and .. .
that only one restaurant in [the city] was unionized
and it was doing badly" had "some objective basis"
and " (t]o forbid expression of that opinion would
not serve the interests of [the employer's] employ-
eqs, for unionization might in fact hurt rather than
help them in the long run"). Accordingly, we dis-
miss that portion of the complaint alleging that
Fulton's conduct violated Section 8(a)(1).
Weber's and Boag's Speeches
Similarly, we disagree with the judge's conclu-
sion that Weber's and Boag's 7 January speeches
violated Section 8(a)(1) of the Act by threatening
employees with job loss because of their union ac-
tivities. The General Counsel contends that
Weber's and Boag's speeches repeated the alleged
threat of plant closure made by Fulton 2 days earli-
er (see above), and, further, that Boag threatened
to reduce wages and benefits if the employees
chose the Union to represent them.
Weber and Boag both spoke at a meeting at
which all employees attended. According to
Weber's credited testimony, he read first from a
prepared text27 in describing a sample ballot's
layout, including the following comments:28
Over on the left side is a box marked
"YES". If you are willing to pay union dues
and fees; if you are ready to turn all of your
affairs over to the union bosses and do what-
ever they say; if you want to take a, chance on
union troubles and strikes and lost jobs., then
you make an "X" in the YES BOX on the left
side.
27 The judge credited Weber's testimony that he read the speech ver-
batim, and discredited employees Downey's and Cart's version to the
extent it conflicted with the written content of the speech.
28 Weber's statements on "tak[ing] a chance on union troubles and
strikes and lost jobs" and "not . . tak[ing] a chance on strikes and lost
paychecks and lost jobs" were not specifically alleged to violate the Act
because they failed accurately to inform employees of their replacement
rights in the event of an economic strike. Moreover, this additional issue
was not fully litigated, and the judge's findings on these particular state-
ments were limited to whether "Weber's . . ' speeches threatened plant
closure in violation of Section 8(aXl) of the Act." Cf. Kelly-Goodwin
Hardwood Co., 269 NLRB 33, 37-38 (1984), enfd. mem. Nos. 84-7243,
84-7351 (9th Cir. 1985) (scope of complaint and litigation must be exam-
med to determine whether an issue was properly litigated). Accordingly,
we will not pass on those statements' legality
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I don't believe many of our employees will
be voting yes.
Over on the right side is a box marked
"NO". If you believe that you will be better
off without union trouble here; if you do not
want to pay dues; if you do not want to give
up your personal freedom; if you do not want
to take a chance on strikes and lost paychecks
and lost jobs; you will make an "X" in the NO
box. Most of our employees at one time or an-
other have already indicated they plan to vote
NO.
The judge, relying on NLRB v. Gissel Packing
Co., above, 395 U.S. 575, found that the "repeated
references to job loss and plant closure were likely
to have been and were intended to be construed as
threats that the plant would close if the Union
were voted in." The judge's "careful reading" of
the speech, along with its "ambiguity," convinced
him of its unlawfulness. We disagree.
Contrary to the judge, we find Weber's com-
ments while explaining the ballot's layout to em-
ployees constituted mere argumentation protected
by Section 8(c). In Gissel, above at 618, the Su-
preme Court stated that "an employer is free to
communicate to his employees any of his general
views about unionism or any of his specific views
about a particular union, so long as the communi-
cations do not contain a `threat of reprisal or force
or promise of benefit."' Here, Weber 's statements
communicated some of the collective-bargaining
processes' economic realities, and "merely brought
to his listeners' attention a partisan account of the
drawbacks, rather than the advantages, associated
with union representation." Rexall Corp., above,
265 NLRB at' 122. Accordingly, we dismiss that
portion of the complaint alleging that Weber's con-
duct violated Section 8(a)(1).
Boag's speech (reproduced at length in the sec-
tion of the judge's decision entitled "6. Speeches by
Bruce Weber , and Tom Boag") followed
Weber's.29 Like Weber's speech, the judge "care-
fully read" the speech, and concluded it also un-
lawfully threatened plant closure and loss of wages
and benefits.
On the alleged plant closure threat, the judge
found that Boag told employees that the Respond-
ent "cannot and will not" increase its financial
problems if it meant jeopardizing the plant's future.
Boag then stated30 that "excessively high wage
scales [could] mean the elimination of jobs com-
pletely," citing Fulton's reference in his speech to
three of the closed plants. Boag told employees he
29 Like Fulton's and Weber 's speeches , the judge credited the written
version of Boag's speech, and its content is undisputed.
30 The facts here are more fully set forth than in the judge 's decision.
was "personally involved" in one closing, and that
it was a "very sad feeling walking through a plant
where the machinery is rusting away," and to see
the "look of despair" in employees' faces, and that
he "didn't want to see it again." Boag then turned
to the issue of job security and strikes, and dis-
cussed a strike's impact on job security.31
Boag also told employees that the Respondent
had unions in other locations, and that "past experi-
ence tells us that if this Union got in here it would
be most difficult to continue to improve productivi-
ty and efficiency in this plant." Boag said that as a
"New York Union" representing "a small number
of truck drivers in the New York area," it knew
"absolutely nothing about operating a lumber mill
or cutting trees."
The "real decision," Boag stated, was employees'
"confidence in the management of this company
and yourself to build a financially strong compa-
ny," or whether employees were "willing to risk
[their] steady job and paycheck and the welfare of
[their] family and this community on empty prom-
ises."
On the alleged threats of lost wages and benefits,
Boag told the employees that unions merely
wanted "money," that the Union would promptly
seek a dues checkoff if it won the election, and
that, "[i]n bargaining, all wages and benefits are ne-
gotiable," and the Union "might be willing" to
trade certain items to obtain a dues-checkoff provi-
sion. Boag continued:
In bargaining, all wages and benefits are ne-
gotiable. The union might be willing to trade a
lot of other things off for check-off, especially
if we were to agree that it would run for a full
year and you couldn't change your mind or
cancel it during that time. In bargaining, so far
as we are concerned, everything starts from
scratch and even the benefits and wages you
now have are bargainable. - Bargaining is no
guarantee of a better thing. In bargaining,
things might get better or worse. Wages might
go up or down or stay the same. If the union
were to win the election, we will bargain in
good faith, but I can tell you that we are not
going to be pushed around by some' New York
union who knows nothing about our business
31 Like Weber's statements, above at fn 28, Boag's comments that
You can't collect unemployment benefits because you quit your job to
join a strike" and "We will manage this plant regardless of how many of
you lost your jobs due to a strike" were not specifically alleged to violate
the Act because they failed accurately to inform employees of their re-
placement rights in the event of an economic strike. Additionally, this
issue was not fully litigated , and the judge's findings , on these particular
statements were limited to whether "Boag's speeches threatened plant
closure in violation of Section 8(a)(1) of the Act." Cf, Kelly-Goodwin
Hardwood Co., above.
ATLANTIC FOREST PRODUCTS 863
and cares nothing about our ; future - or ,-the
future of this community.
The real question which should be on your
mind is if you should vote for the union , will it
help you or hurt you? We have tried to run a
good plant . We have tried to put in good ben-
efits for you and pay better wages. We are
constantly trying to improve our plant to make
your job as good as possible . We intend to
keep on improving our plant , our wages and
fringe benefits whenever and wherever we
can. However , we will not let any ridiculous
union demands for more money or anything
else put us out of business . We do not intend
to let any union or anyone else force us to put
your jobs in danger and if the union calls you
out on strike to try and force us to do some-
thing which we think would hurt our business
and affect your jobs , then we'll simply face up
to a strike and get people in here who want to
do the work or close the plant down if it can't
be run efficiently. I repeat this will only be
done if it can't be run efficiently.
The judge found that "a listener would necessari-
ly conclude that wages could stay the same or go
down only if [the] Respondent in bargaining from
scratch proposed freezing or reducing wages and
refused to agree to any increase." In light of the
withheld 1 January wage increase , the judge con-
cluded Boag 's statement threatened employees with
loss of wages and benefits they otherwise would
have received, in addition to threatening plant clo-
sure.
We first address Boag 's alleged plant closure
threat . In finding Boag threatened plant closure,
the judge admitted the remarks contained "much
ambiguity," but found them unlawful because of
Boag's specific references to Fulton's, speech and
the Respondent's "past experience", with unions.
We found above, however, Fulton 's speech con-
tained mere partisan opinion , as the General Coun-
sel failed adequately to contest the factual accuracy
of the parent corporation 's "experiences" with its
unions . Boag's description of his own "sad feel-
ings" at seeing the looks of despair of the people
who lost their jobs because of plant shutdowns, his
comment about the impact of "excessively high
wage scales" on continued operation , and his refer-
ence to past union experiences are similarly within
the realm of legitimate argument. See A. J. Schmidt
Co., 269 NLRB 579, 582 ( 1984) (statement by em-
ployer's president if the union demanded high
wages it could not afford to pay and would have
to phase out found to be "more a legitimate predic-
tion than an unlawful threat ."); ' Kawasaki Motors
Mfg. Corp., 280 NLRB 491 (1986) (employer's fig-
uros' Which""graphically depicted [its] poor finan-
cial situation" found lawful where premised on
"undisputed, objective economic fact").
Finally, we turn to Boag 's alleged threats of lost
wages and benefits. As noted, the judge found, and
we agree, that Supervisor Harris' statements in the
context of the . withheld wage increase violated
Section 8(a)(1) because of the "conflicting signals"
given employees on the motivation behind postpon-
ing the wages. The judge applied the same analysis
to Boag's comments on loss of wages and benefits,
finding that the statement's "conflicting signals"
threatened employees by focusing on Boag's state-
ments that "wages could stay the same or go down
only if Respondent in bargaining from scratch pro-
posed freezing or reducing wages and refused to
agree to any incrase [sic]."
Contrary to the judge, we cannot find Boag's
statement, when placed in context, that "[i]n bar-
gaining, so far as we are concerned, everything
starts from scratch and even the benefits and wages
you now have are bargainable" is unlawful. An
employer is entitled under Section 8(c) to point out
that benefits are negotiable. See, e.g., Ludwig Motor
Corp., 222 NLRB 635 (1976). Bargaining may start
from "scratch" and employees may be so informed,
provided the employer's statements to its employ-
ees are not made in a coercive context. See, e.g.,
Host International, 195 NLRB 348 (1972); Harvey's
Resort Hotel, 271 NLRB 306 fn. 2 (1984).
We find that Boag's statements constituted noth-
ing more than a partisan account of the possible re-
sults of collective bargaining and merely informed
employees of the collective-bargaining processes'
economic realities. As the judge found, Boag told
employees that they would not "automatically" get
a pay raise with a union because neither side had to
agree to the other's proposals, that all benefits were
negotiable and the Union might trade benefits to
obtain a dues-checkoff provision, that "bargaining
starts from scratch and even the benefits and
wages" currently enjoyed were negotiable, and, fi-
nally, that bargaining is "no guarantee," as wages
"might go up or down or 'stay the same." Boag
then told employees, however, that the Company
"would bargain in good faith" if the Union won
the election,32 but would not allow ' itself to be
"pushed around." Boag told employees that the
Respondent had tried to run a "good plant" with
"good benefits" and "better wages"' and was con-
stantly trying to improve. Such comments consti-
tute protected speech. Accordingly, we dismiss
32 See, e .g., Ludwig Motors Corp., 222 NLRB 635 (such assurance's
presence is a factor in evaluating the context surrounding such state-
ments).
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that portion of the complaint alleging Boag's
speech violated Section 8(a)(1).
Having affirmed the judge's findings that the Re-
spondent violated Section 8(a)(1) by unlawfully
withholding the January wage increase, by interro-
gating David Norfleet, and by harassing Joe Carr,
we shall set aside the first election and direct a
second election. We have reversed the judge's find-
ings that Fulton's, Weber's, and Boag's speeches
violated Section 8(a)(1).33 Accordingly, we shall
issue an Amended Conclusions of Law, a new
Remedy, and a new Order and notice to employ-
ees.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
3:
"3. By interrogating David Norfleet concerning
his union activities, and harassing Joe Carr by fol-
lowing him or keeping him under observation at
work because of his union activities, the Respond-
ent has engaged in unfair labor practices affecting
commerce within the, meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
"4. By withholding a regularly scheduled wage
increase because of employees' union activities, the
Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Act."
AMENDED REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it
to cease and desist and to take certain affirmative
action designed to effectuate the policies of the
Act.
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its facility at Edenton, North Caroli-
na, copies of the attached notice marked "Appen-
dix."34 Copies of the notice, on forms provided by
the Regional Director for Region 11, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous 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.
(b) Notify the Regional Director in writing
within 20 ,days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the election con-
ducted 8 January 1981 in Case ll-RC-4938 is set
aside and that a new election be held as directed
below.
[Direction of Second Election omitted from pub-
lication.]
34 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
ORDER
The National Labor Relations Board orders that
the Respondent, Atlantic Forest Products, Inc.,
Edenton, North Carolina, its officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee about
union support or activities.
(b) Harassing employees by following them or
keeping them under observation at work because of
their union activities.
(c) Withholding regularly scheduled wage in-
creases because of employees' union activities.
(d) In any like or related matter interfering with,
restraining, or coercing employees in the exercise
33 We therefore sustain only those objections which correspond to our
unfair labor practice findings
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT harass you by following you or
keeping you under observation at work because of
your union activities.
WE WILL NOT withhold regularly scheduled
wage increases because of your union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
ATLANTIC FOREST PRODUCTS, INC.
ATLANTIC FOREST PRODIJCTS
George Carson II, Esq., for the General Counsel.
Robert A. Vahos and Margie Ann Toy, Esqs, of Raleigh,
North Carolina, for the Respondent Employer.
Fred .Lawson, of New York, New York, for the Charg-
ing Party Petitioner.
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge The
charge in Case 11-CA-9951 was filed by Local 20408,
United Warehouse Industrial and Affiliated Trades Em-
ployees Union (Union) on June 18, 1981. The complaint
issued August 5, 1981. In its answer Respondent denied
commission of any unfair labor practices.
In Case I1-RC-4938 an election was conducted on
January 8, 1981, pursuant to a Stipulation for Certifica-
tion upon Consent Election in a unit of Respondent's
production and maintenance employees. The election re-
sulted in a vote of 61 for the Petitioner, 113 against, and
5 challenged ballots. The Petitioner filed timely objec-
tions to conduct affecting the results of the election, and
on February 13, 1981, the Acting Regional Director
issued his Report on Objections recommending that cer-
tain objections be overruled and that the remainder be
resolved on the basis of record testimony. Thereafter, on
July 14, 1981, the Board issued a Decision and Order
adopting the Acting Regional Director's findings and
recommendations On August 7, 1981, the Regional Di-
rector issued a notice of hearing and order consolidating
the objections with the complaint in Case 11-CA-9951
for purposes of hearing, rulings , and decision by an ad-
ministrative law judge.
A hearing in the consolidated cases was held before
me in Elizabeth City, North Carolina, on May 11, 1982.
At the hearing, the General Counsel's motion to amend
paragraphs 8(d) and (f) of the complaint was granted.
The Petitioner offered no independent evidence in sup-
port of the objections and indicated that it would not
pursue any objections to the election other than those
coextensive with the allegations of the complaint. All
other objections were dismissed. At the conclusion of the
hearing, Respondent moved to dismiss the complaint and
objections. Ruling on Respondent's motion was deferred
for the written decision. The parties waived oral argu-
ment and were given leave to file briefs which have been
received from the General Counsel and Respondent.
The issues in this case are whether Respondent violat-
ed Section 8(a)(1) of the Act and engaged in conduct af-
fecting the results of the election by withholding a regu-
larly scheduled wage increase before the election, giving
instructions to employees to remove union buttons, more
closely watching an employee while at work, threatening
reprisals if the Union won the election, and questioning
employees about their union sentiments.
On the entire record in this case, and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
865
Respondent, a Delaware corporation, has a facility lo-
cated at Edenton, North Carolina, where it engages in
timbering and the manufacture of cedar wood products.
During a representative 12-month period, Respondent
shipped goods valued in excess of $50,000 to points di-
rectly outside the State of North Carolina and received
goods and materials valued in excess of $50,000 directly
from points outside that State. I find that Respondent is
an employer engaged in commerce within the meaning
of the Act and that it will effectuate the policies of the
Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Withholding of the January 1 increase
Before January 1, 1981, for at least several years Re-
spondent had followed the practice of giving increases
twice a year, on January 1 and July 1. On January 1,
1981, Respondent did not give its employees a general
increase. Word that the increase would not be given first
came in the following item in Respondent's employee
newsletter which was mailed to all employees on De-
cember 18, 1980:
DELA YIN JANUARY INCREASE
Many of you have asked what the company is
going to do about a pay raise in January. I regret to
notify you that the January adjustments in wage
rates and benefits will have to be postponed for all
employees involved in the pending NLRB Election.
This delay is required to avoid the appearance of
vole-buying by the company in view of the fact
that the NLRB will hold an election on January 8.
Our counsel has advised us that wage increases at
this time might be considered to be an unfair labor
practice and that the company should not take this
risk.
As you know, AFP is paying, and always has
paid, above the best rates for this area With or
without a union, we intend to follow this policy.
There has never been a need for any person from
the outside to put pressure on us to pay the best
rates we can.
Without a union , we are in a position to adjust
rates as conditions required. You all know that we
adjust rates twice a year, as we are able, and as it is
needed. Under union contracts, wage rates are
fixed, usually for periods of one year-sometimes
longer
Normally, during the period of negotiations with
the union all wage rates and benefits are frozen at
the existing level.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To sum up , in view of the election on January
8th, we cannot say what increase there will be.
I hope each of you will vote no , on January 8th
so we can once again deal with each other free of
all rules.
Also in December Supervisor Tim Briggs called to-
gether the employees in his department and spoke to
them about the Union. Employees asked him about the
raise, and, Briggs replied that Respondent really could
not do anything until all the union "stuff" was over.
When Supervisor Mike Harris told Erie Downing that
there would not be a wage , increase , Downing asked for
the reason, and Harris replied, "Because of the union
campaign that was going on , you know , during the cam-
paign, no raises or anything were supposed to be given
out." Supervisors Richard Dixon, Ted Wright, and Mack
Jones told David Norfleet that Respondent could not
give them the raise "because that would be a sort of a
bribe, the union might look at it as a bribery, saying that
they might give us too much or , they would be saying
they would be buying us for us to vote against the union,
and that is why they couldn' t give us the raise."
Supervisor Mike Harris told the maintenance depart-
ment employees that the would not get the raise "be-
cause of the union campaign."'
Shortly after the election , Respondent granted a gener-
al increase retroactive to January 1. The record does not
establish whether the amount of the increase had been
determined before the December 18 notice to employees.
However, a general percentage figure for budgetary pur-
poses had been established at that time.
Joe Carr also started to wear a union button at the
same time . When Dixon came to his office and noticed
Carr 's button, he asked another employee to leave,
closed the door , and said, "I am going to stand here and
watch you take that button off." Carr asked the reason,
and Dixon replied , "We are having union campaign
going on here ." Carr said that he realized that, and
Dixon said , "Well I want you to take the button off."
Carr then took the button off. About 45 minutes later
Plant Manager Weber came to Carr 's office and in-
formed him that he could wear the button.2
At the time of the election campaign , Respondent's
employee handbook provided as follows with respect to
solicitation:
AFP follows a broad no solicitation policy. This
means that posting of handbills or distribution or
promotional material in work areas at any time or
in non-working areas on company time will not be
permitted . Further, in order to be fair to all con-
cerned we cannot allow any employee while on
company time to solicit any type of business in
work areas . The specific exception to this policy
will be sales of candy, raffle tickets , etc., for
churches, charitable organizations, etc., by employ-
ees on their time in non-working areas only with
the prior written approval of the General Manager.
Anyone not employed by AFP will not be al-
lowed to enter company property to distribute ma-
terials, solicit, collect , or engage in any similar ac-
tivity.
2. Restrictions on solicitation
After notices of the election were posted , employee
Willie Davis started to wear a union button at work.
Plant Manager Bruce Weber approached him, told him
that he was not allowed to wear the button, and said that
he would appreciate it if Davis would take it off. About
30 to 45 minutes later, Weber informed Davis that he
had made a mistake and that Davis could wear the
button . Davis resumed wearing the button.
David Norfleet also began to wear a button to work at
the same time. Supervisor Richard Dixon approached
him and. told him "I have to ask you to pull your button
off." Norfleet asked why, and Dixon replied , "I can't
pay you to wear this button because there is a campaign
-going on and I can't pay you for what we are against."
When Norfleet responded that the button was not doing
anything to anybody, Dixon replied, "Well, I asked Joe
[Carr] to take his off, and Joe took his off." Norfleet
asked if Dixon was sure ,that Can had taken his button
off, and Dixon replied affirmatively. Norfleet then re-
moved his button.
Two or three, hours later Dixon returned to Norfleet
and told him that he had made a mistake and that Nor-
fleet could put, his button back on. Norfleet did not do so
at that time..
I These findings are based on the uncontradicted testimony of Erie
Downing, Willie Davis, David Norfleet , and Joe Carr. Downing's name
appears as Downie in the transcript.
Apart from the incidents described above relating to
the wearing of union buttons the only other evidence
about enforcement of the rule was the testimony of Joe
Carr that employees knew that union solicitation was
permitted only during lunch periods and breaks.
3. Harassment of Can at work
Joe Carr was employed as a purchasing agent. Carr
wore a union button at work , and it was generally
known that he supported the Union . Most of his work
was done within an office area assigned to him in the
maintenance department , but twice a day he went
through production areas to carry paperwork to the
front office . On his way to the front office he often
checked the supply of items he ordered and occasionally
visited production areas to inventory supplies. While
Carr was walking through production areas, he occasion-
ally spoke with other employees who work there.3
According to Carr , before the election campaign no
one in management had ever said anything to him about
talking to other employees . , However, he 'testified that
after the union campaign began things changed: He was
reported for going to the men's room too often , 'spending
2 Davis, Norfleet, and Carr testified to these events without contradic-
tion.
2 There is testimony that the route which Carr used to going to and
from the front office was not the most direct route between his office and
the front office However , Carr's testimony is uncontradicted that he
used that route before as well as after the union campaign began
ATLANTIC FOREST PRODUCTS 867
too much time there, and for pulling people away from
their jobs to talk to them, although he denied that he did
so. He testified that if employees called him, he would
go to their work stations and talk with them, usually to
answer questions. He denied that he talked to employees
about the Union while they were working.
According to Carr, between Christmas 1980 and the
day of the election he noticed that he was being watched
by Supervisors Overton and Lipscomb as he went
through the production area to the front office. On one
occasion, as he walked through he noticed Overton and
Lipscomb standing at an elevated office window, which
overlooked the processing area, looking down at him.4
On another occasion, Lipscomb met him at the entrance
to the production area and asked what was happening.
Another time Supervisor Wright met him at the entrance
and asked him what he wanted. When he told Wright
that he wanted to get a count on the strapping in the de-
partment, Wright replied that it was all right. On other
occasions, he observed Supervisor Dixon watching him
in the saw mill area.
Carr testified that his habits with respect to talking
with other employees in the plant did not change after
the preelection campaign began and that he engaged in
no more talk than before the campaign began. He also
testified that when he spoke with employees at their
work stations, the conversations were work related and
the other employees continued to work.
David Norfleet testified that on one occasion Supervi-
sors Wright and Dixon called him aside and told him
that they did not want him to think that they were
"picking on" him, but that they heard he had been going
to Carr's office a lot and that they wanted him to stay
away from Carr unless somebody sent him there. Ac-
cording to Norfleet, he replied that he did not go to
Carr's office unless somebody sent him and that it
seemed to him that they were picking on him because he
was for the Union.
To rebut Carr and Norfleet, Respondent presented the
testimony of Plant Manager Weber and Supervisors
Wright, Dixon, Jones, Overton, and Lipscomb. All
denied that supervisors were instructed to watch Carr or
any other employees more closely because of their union
activities,5 and Wright and Dixon denied that the inci-
dent described by Norfleet occurred. Their direct testi-
mony in this regard was adduced largely by leading
questions and in a number of instances their denials went
to whether they recalled the events at issue rather than
whether those events occurred. More important, with re-
spect to a suggested cause for watching employees more
closely during this period, their testimony was not con-
sistent. Thus, Weber testified that during the course of
the campaign he became concerned that production de-
creased radically from 15 to 20 percent and that he in-
structed supervisors to take a look at production prob-
Carr's attention was called to them by another employee who told
him he was being watched
8 Most also testified that supervisors were instructed not to engage in
surveillance of employee union activities, although Dixon recalled no in-
struction to that effect There is no contention that they engaged in sur-
veillance in the sense in which that term is customarily used in connec-
tion with the Act
lems, which included spending excessive time in the rest-
rooms, people talking on working time at their work sta-
tions, and nonperformance of work. He testified that he
told his supervisors to watch employees on the job,
which was part of their normal supervisory duties, and
to maintain a "tight ship." According to Weber, he did
not know whether the employees doing most of the talk-
ing were the proponents of the Union, and supervision
was watching no one in particular but merely for prob-
lems.
Wright, however, testified that after the campaign
started to his recollection there was no more talking
among employees than previously and that Weber did
not discuss with the supervisors the reasons for a de-
crease in production. Dixon testified that conversation
did not increase "that much" before the election and that
the slowdown in production had nothing to do with talk-
ing on the job or the union campaign. Jones and Overton
also did not recall Weber telling the supervisors that pro-
duction was down because employees were talking more
than usual , but Overton testified that he had reported to
Weber and to Harris, who was Carr's supervisor, that
Carr was talking to employees in Overton's department
on company time . He also testified that he spoke to the
employees in his department, but not to Carr, about talk-
ing while they worked.
Unlike the other supervisors, Lipscomb initially cor-
roborated Weber, at least in part, testifying that Weber
told the supervisors to be alert to people stopping work
and having little gatherings to talk about anything during
the union campaign. Lipscomb testified that he did not
remember whether he mentioned to Weber an incident
involving Carr or that Carr had been involved in a lot of
the gatherings at the time Weber alerted the supervisors
to watch for employee gatherings. However, he also tes-
tified that he knew that Carr had been spoken to for
walking, through the processing area and speaking to
others by someone higher up in management than Lips-
comb during the union campaign and that the word was
around the mill that Carr was talking to employees too
much during the union campaign.
The testimony of Weber and Lipscomb indicates that
there was a problem with excessive talking during the
preelection period, and Lipscomb's testimony indicates
that it focused on Carr. Their testimony would indicate
that all employees, and particularly Carr, were watched
more closely for talking in order to keep a "tight ship."
Their testimony would thus support Carr's testimony
that he was being watched more closely, albeit for cause.
Yet the testimony of Wright, Dixon, Jones, and Overton
was that there was no problem with talking in the plant,
and save for one incident described by Overton, no occa-
sion to speak with Carr about it or to watch him more
closely because of excessive talking during the preelec-
tion period.
In these circumstances, I credit Carr that he was
watched more closely during the preelection period than
previously and reject the testimony of Weber and Lips-
comb that the cause for watching him was Carr's exces-
sive talking during that period. I also credit Norfleet that
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was told by Wright and Dixon to stay away from
Carr's office. -
4. Fulton's speech
On January 5, 1981, Respondent's then president,
Sandy Fulton, gave speeches to the assembled employees
on the first and second shifts at the plant. Fulton spoke
from notes, and his speeches were tape-recorded and
transcribed.6
Fulton started by explaining that he had responsibil-
ities to the shareholders of Respondent to ensure that the
Company' was profitable and to the employees for-their
security. He reviewed briefly the structure of the Com-
pany and its parent company, MacMillan Bloedel, and
stated that their objectives were to increase productivity
and products extracted from raw materials, and to in-
crease and expand Respondent's timber or raw,material
base. Fulton continued:
To support these objectives we need good prof-
its. The shareholders of this company need some
return for their investment. Our operations must be
profitable; they must be successful. Atlantic Forest
Products must be successful, and it must be profita-
ble.
Before I review the past performance of AFP and
what I see in the future for all of us, I want to make a
couple of points about MacMillan Bloedel and unions.
MacMillan Bloedel is not an anti-union company. If
anyone thinks that, they're wrong. We have an excellent
working relationship with lots of our employees. We
have an excellent working relationship with lots of our
employees. We have lots of successful, very profitable
operations around the world. I look at this as one of our
successful operations'. We might not have been profitable
this year or last year, sorry, but we are going to make it
profitable.
However, we've also had some bad experiences
and I want to relay a couple of those things to you,
6 The transcript of Fulton's speech to first-shift employees was re-
ceived in evidence, and I have based the findings which follow on it.
First-shift employees Downing, Davis, Norfleet, and Carr also testified to
statementsmade by Fulton Erie Downing testified that in the course of
the speech Fulton said that Respondent did not like or believe in unions
and if necessary would have to close the plant down if there was a union
He also testified that during the speech Fulton mentioned five plants
which had closed down and at the end of the speech said he wanted to
remind the employees that all the plants which closed were unionized
Davis testified that Fulton talked about how many places that were
closed'or cut back because of unionization and said "you wouldn't want
this to happen to you." Norfleet testified that Fulton said with reference
to closed down plants that he wanted to remind the employees that all
were unionized and that "we don't want this to happen there." Down-
ing's testimony, which clearly goes beyond the speech transcript, was not
corroborated by the other employees` I have not credited it The remain-
ing testimony , while deviating from the transcript, seems clearly to re-
flect the normal variations in perceiving and recalling words spoken
some time in the past and to constitute paraphrases or impressions of
what Fulton said. I find that it is sufficiently close to the words and tone
reflected in the transcript to conclude that the transcript accurately sets
forth what Fulton said Although there are indications that at places the
transcriber was unable to understand portions of the tape from which
transcript was made, none of those omissions appear at places where by
context or position'the portions of the speech here at issue might have
been modified or amplified
just to make a couple of points about profitability
and success. And these are our operations, no one
else but MacMillan Bloedels'.
Vancouver Plywood in Vancouver, British Co-
lumbia, a very, large plywood plant. It used to
employ about 1,200 people, it was unprofitable, and
we couldn't make it profitable, it now employs
about 350. We are not spending any more money at
Vancouver Plywood. We're not keeping the equip-
ment in good shape anymore. We can't be success-
ful' there. Eventually that . . . I fully expect that
operation to close. That plant was unionized.
MacMillan-Rothesay, St. John, New Brunswick,
a very large pulp mill, and its unionized. Last year,
we had a seven month strike. Seven months the
plant was down. The union and our employees fi-
nally accepted after seven months essentially the
same offer we made before they went on strike.
They could have gotten that without being out of
work for seven months . . . without that plant
being shut down for seven months. Incidently [sic]
work stoppages cost our company, MacMillan Bloe-
del, something like 29 million dollars in 1979.
There's a real tragedy there. The company lost the
money, the employees lost the work and the pay
they could have earned by working. No one gained
from that. Frankly in some of those operations
we're concerned about our' investments, and we
should be. The employees should be concerned
about their future, and they should be. That's 29
million dollars. Think of it for a minute. 29 million
dollars that we now don't have to buy more trees
for this operation. . . . to spend in upgrading' our
facilities, buying new equipment, building new
plants, employing more people . . . that's slot of
money, and it's needless.
In Pine Hill, Albania, [sic] we had a very large
particle board plant there. It was unprofitable. We
couldn't find a way to make money. We couldn't
find a way to make money. We couldn't be success-
ful. Its unionized. We shut that plant down. We had
12 million dollars invested there. We had something
like 250 people employed . . . much the same size
as Atlantic Forest Products. The plant closed, its
mothballed and I don't expect we will ever run it
again.
Red Band, New West Minister in British Colum-
bia, one of the largest shingle mills in the world.
That plant was unionized. It went on strike. It was
on strike for 2 years. 2 years that plant was on
strike. It's gone now; we've torn it down. Where
Red Band was there's nothing but a vacant lot. The
plants gone, the people have gone. I don't know
where they have gone, but they're gone. Why did it
go on strike? The union was making demands on us
that neither we, MacMillan Bloedel, nor the Forest
Products Industry could afford to meet. Totally un-
reasonable demands. That plant was unionized.
I don't think any of you have seen a plant that's
been on strike for two years or been down for two
years. You watch it rusting away. In our operations
ATLANTIC FOREST, PRODUCTS 869
that sell the products from Atlantic Forest Prod-
ucts, some of those are not successful, not profita-
ble.
We closed our warehouse in Ashtabula, Ohio.
We closed our warehouse in Camden, New Jersey.
Couldn't make money. We have a couple other op-
erations that aren't doing well. One in Baltimore,
Maryland. One in Tampa, Florida. The reason we
can't make money is-well a couple of things. One,
we're operating with Long Shoreman [sic] Unions.
Extremely high labor rates, and the productivity is
very low .... the people don't want to work. It
severly [sic] restricts our ability to make money
We're going to close those operations or we're
going to move them. But, we can't keep them.
Incidently, [sic] I don't want you to be fooled
about the wages and benefits you hear other people
have in the country because its true. I talked about
some operations and mentioned locations. Exces-
sively high pay scales. You have a job, they don't.
I could go on and on. There are many other op-
erations that we've had not very good success with.
I could go onabout other companies that haven't
had good success with their operations and tell you
what has utimately [sic] happened to them. The
point I'm trying to make, and I hope I make it, is
that our operations, all of our operations, must be
successful and they, must be profitable, AFP includ-
ed.
Being unionized is no guarantee that we will be
successful. You should know now that we will
never grant any unreasonable demand made ,upon us
by anybody-union or otherwise-if it makes this
plant or any of our other plants uncompetitive. To
do so is absolutely suicidal for that operation.
Fulton then spoke about the Company's performance
in 1980, pointing out that they had not done well and did
not expect that they would make any money at all for
the year because of bad weather, equipment problems,
interest rates, and product prices. He pointed out that
things had improved toward the end of the year, but that
Respondent had lost $250,000 between July 1 and the
end of the year, despite a substantial capital investment.
Fulton said that he thought that 1981 would produce
better news, pointing out that five elements were needed
to be successful and profitable: good markets and cus-
tomers; a supply of timber: a good manufacturing facili-
ty; money for investment and inventory; and "most im-
portantly of all, a very stable work force . . . particular-
ly well trained, highly skilled." After reviewing the
status of each element, Fulton said:
I want to impress upon you what we don't want
to do. MacMillan Bloedel does not want to do any-
thing to encourage any of you to leave it. That's
why we pay competitive wage rates and benefits.
That's why we kept everybody employed when we
didn't have any logs. When we couldn't sell our
products because no one would buy them, that's
why we built inventory. To keep you people here,
who are valuable employees, we don't want to lose
you.
;When you weren't making any money, I mean,
look back over the last six months-we're losing
money, we kept putting more money into this oper-
ation. We didn't give up. MacMillan Bloedel has
done this and I'm a part of it (?) and frankly, we're
optimistic about Atlantic Forest Products and the
future of this operation. We have faith in this oper-
ation, in you, our employees.
We've had our difficulties, we've made mistakes,
I think we're correcting them, I think w`e're work-
ing at continuing to make progress. (?) We're com-
mitted to that program. If we don't correct our mis-
takes or provide a good wage for you, you're gonna
leave us, and, we don't want that to happen. I think
it's your turn now. I think it's your turn to convince
MacMillan Bloedel that you have faith in the com-
pany and that MacMillan Bloedel should continue
to have a very positive attitude toward Atlantic
Forest Products and its employees.
MacMillan Bloedel is committed, and it should be
obvious to all of you now, I want you to show your
commitment on Thursday by voting no to ' an un-
known and the uncertainty of an unknown union.
I want to 'look forward to Thursday. I want to
look forward to a profitable operation.
We spent alot of time and money over the last
period talking to you about the union. Trying to
make sure that we could tell you everything we
know about this (?) to help you not make a mistake.
Personally I'm tired of losing (?) Lose time, lose
production, lose profit, lose lumber we could make.
I'm tired of losing all of that. I think you're prob-
ably tired of all the distractions.
Make no mistake. I want you to vote no on Janu-
ary 8th and I want all of us to get back to our job.
Our job is to make Atlantic Forest Products a suc-
cessful, profitable operation. That's our job (?)
I would like to be here for the election on 'Thurs-
day, but I can't. I have to go to Vancouver. All the
senior managers in MacMillan Bloedel from all over
the world are meeting there to discuss all of our op-
erations and the future of those operations.
,I will be asked to give a report on Atlantic
Forest Products. Nothing would please me more
than to include in my report that the majority of
you, our employees, voted no to keep this New
York union out of our operation. I want to report
that there's no question about Atlantic Forest Prod-
ucts having astable, responsible work force. Thank
you for your time.
5. The alleged interrogation of employees
On the day before the representation election, leadman
Mack Jones called Norfleet aside to speak with him pri-
vately. Jones said, "Dave, I am not supposed to talk to
you but just between me and you . . . . Well, how are
you going to vote?" Norfleet told him that he was going
to vote yes.7
' Jones testified that he did not recall confronting Norfleet on the day
before the election and asking him how he was going to vote, and that
Continued
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Speeches by Bruce Weber and Tom Boag
On, January 7 Bruce Weber, Respondent's general
manager, and Tom Boag ,B industrial relations manager
for Respondent's parent company, addressed all the em-
ployees at a meeting. Weber held up a sample ballot and
described its layout. In the course of his explanation, he
said the following:9
Over on the left side is a box marked "YES". If
you are willing to pay union dues and fees; if you
are ready to turn all of your affairs over to the
union bosses and do whatever they say; if you want
to take a chance on union troubles and strikes and
lost jobs, then you make an "X" in the YES BOX
on the left side.
I don't believe many of our employees will be
voting yes.
Over on the right side is a box marked "NO". If
you believe that you will be better off without union
trouble here; if you do not want to pay dues; if you
do not want to give up your personal freedom; if
you do not want to take a chance on strikes and
lost paychecks and lost jobs; you will make an "X"
in the NO box. Most of our employees at one time
or another have already indicated they plan to vote
NO.
Boag's speech followed Weber's. In the course of it,
he said the following:
There have been, many, many rumors and out-
right lies told by the union during this campaign.
Norfleet had made his prounion sentiments known publicly in the plant
He testified that on the day before the election he had no encounter at all
with Norfleet regarding how he might cast his ballot in the election.
However, he also testified that as a supervisor he was asked to identify
employees who were definitely for the Union, for Respondent, or unde-
cided, and that he spoke to other employees after films were shown and
speeches given by Respondent to see if they felt differently about the
Union after having seen a film or heard a speech. Thus, despite his denial
that he questioned Norfleet and his testimony that he knew where Nor-
fleet stood from Norfleet's behavior, it appears from his testimony that he
engaged in an ongoing effort to ascertain the effects of Respondent's
preelection campaign on individual employees In these circumstances,
the questioning of Norfleet the day before the election was not implausi-
ble and indeed falls within the pattern of the conduct in which Jones ad-
mittedly engaged. I have credited Norfleet
8 Boag's name is misspelled as Bohe at places in the record
9 These findings are based on a copy of a speech which Weber testified
that he read verbatim Employees Downing and Carr also testified re-
garding this speech Downing testified that during the speech Weber told
the employees to "vote the right way, and if you vote the right way you
won't have to worry about losing your jobs " He also testified that
Weber said that if the Union won the election there would be negotia-
tions which could last for 3 to 4 months. Downing further testified that
Weber said "that we might lose our jobs the next day if the election was
won" Carr testified that Weber said, "If we vote the right way, we
wouldn't have to worry about our jobs" while pointing to the box on the
ballot He testified that Weber also said, "If the Union should come in,
everything would hinge on negotiations; everything would go back to
scratch as far as the benefits were concerned." He testified further that
Weber said, "We would lose our jobs `the next day"' To the extent that
their testimony deviates from the written speech which Weber testified
that he read, I do not credit it Downing's testimony was unclear in
places and demonstrated an uncertain memory Carr rather clearly attrib-
uted to Weber statements made by Boag about bargaining from scratch
Neither mentioned the statement about losing their jobs the next day
without some prompting I have credited Weber
They are even contending that what Mr. Fulton
told you was not true. This is how ridiculous their
allegations can be. There is no way Mr. Fulton
would ever tell you anything that could not be vali-
dated. To suggest otherwise is questioning the in-
tegrity of a senior official of this company. I think
we have shown you that the company has told you
the truth and demonstrated our sincerity.
Most of our employees are too smart to fall for
the union's lies. Most of our employees know that
our wages and benefits are the best in the country
and among the best in this area of the United States.
Another theme the union has used to try to fool
you is that if you vote for the union you'll auto-
matically get a pay raise. This is absolutely not true
and I want to make this very clear. The law says
that neither the company nor the union has to agree
on anything the other side proposes. We do not
have to agree to anything that is not economically
sound or in the best interest of this company and
the employees.
We hope that we have a very good year next
year. This plant has to stand on its own. It has to
make a profit in order to justify its continuance in
Edenton. I can guarantee you this. We cannot and
will not, increase our existing financial problems and
production costs if that means jeopardizing the
future of this plant. Don't get caught up in the
union's statements that this company can pay the
same wages here as elsewhere. Excessively high
wage scales can mean the elimination of jobs com-
pletely as has been identified by Mr. Fulton, in re-
spect to the Red Band shingle mill, the particle-
board plant at Pine Hill and the Camden, N.J.
warehouse. I was personally involved in the Red
Band closure. I can tell you it is a very sad feeling
walking through a plant where the machinery is
rusting away. It is even sadder to see the plant bull-
dozed into the ground. When you look into the
eyes of people who have worked 30 or 40 years at
an operation and see the look of despair when they
realize their job is no longer there. I can tell you I
don't want to see it again.
There is another matter' that I want to perfectly
clear. I want everyone to know in advance that if
the union is voted in here and we cannot agree with
the union's demands there could be a strike that
could hurt everyone. Where is your job security
then?
Job security is created by employees and man-
agement working hard, not by union-called strikes.
If the union called a strike you could certainly be
involved. You can't expect this union to pay you
any strike benefits. Atlantic Forest Productions
would not pay you if you were not working. You
can't collect unemployment benefits because you
quit your job to join a strike.
Many employees who have been on strike have
waited as long as three or more years before they
ever got a chance to come back to work. Don't let
that happen to you.
ATLANTIC FOREST PRODUCTS 871
As you know , we have unions , in some, of our
other plant locations . Our past experience tells us
that if this union got in here it would be most diffi-
cult to continue to improve productivity and e€fi
ciency in this plant. This New York union repre-
sents a small number of truck drivers in the New
York area . So far as we can tell , they know abso-
lutely nothing about operating a lumber mill or cut-
ting trees. Do you want them to interfere with your
job?
As expressed to you before, if this union were to
get in here , we will be tough . We will never give in
to a union-called strike. We will manage this plant
regardless of what the union did and regardless of
how many of you lost your jobs due to a strike. It is
our right and duty to manage this company and to
produce lumber products.
The real decision you are going to make in the
election is whether you are going to retain your
confidence in the management of this company and
yourself to build a financially strong company that
can provide long-term job security with good
wages and benefits , or whether you are going to
risk your steady paycheck on what some New York
union supporter says you might get. Remember, the
success of Atlantic Forest Products and your suc-
cess are one and the same . You will make , it togeth-
er or you will sink together.
When you vote Thursday, remember that with-
out this union you have a steady job and a steady
paycheck. Your job security.
What you'llbe voting on is not whether you like
the sound of fancy union talk but whether you are
willing to risk your steady job and paycheck and
the welfare of your family and this community on
empty promises . Think about it-think about it long
and hard. A No vote is a vote for yourself, your
family, your future, your community and your job.
In bargaining, all wages and benefits are negotia-
ble. The union might be willing to trade a lot of
other things off for check-off, especially if we were
to agree that it would run for a full year and you
couldn 't change your mind or cancel it during that
time . In bargaining, so far as we are concerned, ev-
erything starts from scratch and even the benefits
and wages you now have are bargaining, things
might get better or worse. Wages might go up or
down or stay the same. If the union were to win the
election, we will bargain in good faith, but I can tell
you that we are not going to be pushed around by
some New York union who knows nothing about
our business and cares nothing about our future or
the future of this community.
The real question' which should be on your mind
is if you should vote for the union, will it help you
or hurt you? We have tried to run a good plant. We
have tried to put in good benefits for you and pay
better wages. We are constantly trying to improve
our plant to make your job as good as possible. We
intend to keep on improving our plant, our wages
and fringe benefits whenever and wherever we can.
However, we will not let any ridiculous union de-
rnands for more money or, anything else put us out
of business . We do not intend to let any union or
anyone else force us to put your job in danger and
if the union calls you out on strike to try and force
us to do something which we think would hurt our
business and affect your jobs, then we'll simply face
up to a strike and get people in here who want to
do the work or close the plant down if it can't be run
efficiently. I repeat this will only be done if it can't
be run efficiently.
B. Concluding Findings
j. The withheld increase
The complaint alleges that Respondent withheld the
regularly scheduled wage increase because of the em-
ployees' union activities. The General Counsel contends
that Respondent did not merely seek to avoid the ap-
pearance of interference with the election, but as shown
by statements and speeches of supervisors, sought to
place responsibility for postponement of the increase on
the Union and failed to 'assure employees that Respond-
ent would continue to follow its past wage policies with
or without a union . Respondent contends ' that its actions
with respect to the wage increase were indistinguishable
from those found lawful by the Board in Uarco, Inc., 169
NLRB 1153 (1968).
The first two paragraphs of the notice printed in the
December 18 employees newsletter are virtually identical
to the ' similar portions of the notice to employees in
Uarco. While the remainder differs, in the third para-
graph Respondent assured employees that with or with-
out a union it intended to follow the policy of paying
above the best rates for the area. However, in the next
two paragraphs Respondent contrasted its freedom with-
out a union to adjust rates ' as conditions required with
what is described as the normal freezing of wages and
benefits during contract negotiations . Thus, the assurance
that Respondent' would continue to follow the same
wage policy with or without a union was weakened by
the suggestion that there would be an immediate increase
without a union by a delay for an indefinite period of ne-
gotiations for an uncertain increase with a union.
Unlike Uarco, in which unambiguous assurances that
wage policy would remain the same with or without a
union were given following the initial ' announcement of
deferral of the increase,' here that assurance was not re-
peated . To the contrary, Boag's statement on the day
before the election that it was untrue that employees
would automatically receive an increase coupled with
the statement that bargaining would ' start from scratch
conveyed that wage policy in fact `would be different
with a union than without. Moreover; when employees
asked supervisors about the raise , their responses put the
onus for deferral on the Union. 'Briggs said that no in-
crease could be given until the union "stuff' was over,
Harris blamed deferral on the union campaign, Dixon,
Wright, and Jones attributed deferral on the union cam-
paign, and Dixon, Wright, and Jones attributed deferral
to what the Union ' might do or say if the raise was
given.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that the evenhanded impression created by the
opening paragraphs of the December 18 notice was repu-
diated by the supervisors' subsequent statements and
Boag 's preelection speech. I find further that Respondent
after December 18 sought to shift the onus for postpone-
ment of the wage increase to the Union and to communi-
cate that its wage policy would depend on the outcome
of the election. Accordingly, I conclude Respondent's
withholding of the regularly scheduled wage increase
violated Section 8(a)(1) of the Act.lo
2. Restrictions on solicitation
The complaint alleges that Respondent, through
Weber and Dixon on January 6 or 7, 1981, violated Sec-
tion 8(a)(1) by promulgating and maintaining a no-solici-
tation rule which proscribed solicitation in nonworking
areas during nonworking time and by instructing em-
ployees,to remove union insignia. The General Counsel
contends that these allegations are supported by the facts
found above, that Weber and Dixon instructed Davis,
Norfleet, and Carr to remove union buttons while at
work and by the written rule which appears in the em-
ployees' handbook. Respondent contends that the prompt
rescission of the instruction to remove union buttons
cured any possible violation and that the lawfulness of
the no-solicitation rule was not properly raised by the
complaint or litigated at the hearing.
,With respect to the written no-solicitation rule, during
the hearing the General Counsel stated that he did not
contend that there was an oral promulgation of a no-so-
licitation rule by Weber, but that he was responsible for
the rule in the employee handbook and that Dixon's
statements in conjunction with his instructions to em-
ployees to remove their union buttons constitute promul-
gation and enforcement of the rule in the handbook. Re-
spondent objected that it had no notice that the General
Counsel claimed that the rule in the handbook was un-
lawful, and the, General Counsel conceded that the com-
plaint was not originally intended to allege that the rule
in the handbook was unlawful and that he had not seen it
until the morning of the hearing. At that point I 'ex-
pressed the view that it was a little late to be placing the
lawfulness of the rule at issue, and no further evidence
was received with respect to it. In these circumstances, I
find that the lawfulness of the rule in the handbook was
not placed in issue by the complaint. Furthermore, under
the Board's decision in T.R. W, Inc., 257 NLRB 442
(1981), if the complaint had put the rule in issue Re-
spondent would have had the right to present evidence
to rebut the presumptive invalidity of the rule. As it did
not do so and had no notice that it would be required to
do so, I fmd that the lawfulness of the rule was not fully
litigated and is not properly before me for decision."
With respect to the instructions to employees to
remove union buttons, clearly had the instructions not
been rescinded they would have violated the Act. The
General Counsel contends that the rescissions were insuf-
ficient to neutralize the violations because they did not
10 Otisi Hospital, 222 NLRB 402 (1970), Liberty Telephone, 204 NLRB
317, 321-322 (1973) See also Dynatronzcs, 186 NLRB 978 (1970).
11 T R. W., Inc. at 443
clearly identify the wrong doing, the employees ' organi-
zational rights were not affirmatively recognized, and no
assurances were given against recurrence of the offenses,
relying on Fashion Fair, Inc., 159 NLRB 1435, 1444
(1966).
The standard urged by the General Counsel has been
followed in a number of cases where threats, interroga-
tion, or other forms of coercion were at issue .l a Howev-
er, when unlawful restrictions on in-plant solicitation
have been promptly rescinded, the Board has found such
violations "effectively cured" even when these condi-
tions have not been met.13 Here, there is no evidence
that any employees other than Davis, Norfleet, or Carr
were informed of, the restriction on wearing union but-
tons. Within one-half an hour to 3 hours, all three were
told that the instructions were a mistake and that they
could wear union buttons. This incident occurred on the
day the election notice was first posted, there is no
showing that any employees was precluded from wear-
ing union buttons thereafter, and Carr's testimony shows
that he understood that employees could engage in union
activity while on break or at lunch. I fmd that the viola-
tions by Weber and Dixon in instructing Davis, Norfleet,
and Carr to remove their union buttons were effectively
cured by the prompt rescission of the instructions and
that the allegations based on them should be dismissed.
3. Harassment of Carr
The complaint alleges that Respondent watched Carr
more closely because of his union activities. I have cred-
ited the testimony of Carr and Norfleet that Carr was
watched more closely and that Norfleet was told to stay
away from Carr's office. I also credit Carr that employ-
ees were generally permitted to talk while working as
long as they did not neglect their work, and I have re-
jected the testimony of Weber and Lipscomb that Carr
was watched because of excessive talking. In the absence
of a credible explanation for the increased attention paid
to Carr, I find that Respondent watched Carr's in-plant
activities more closely during the preelection because of
his known support for the Union. I find that by watching
Carr more closely for that reason, Respondent violated
Section 8(a)(1) of the Act.14
4. Fulton's Speech
The complaint alleges that in his January 5 speech
Fulton threatened the employees with plant closure. The
General Counsel contends that viewed in context Ful-
ton's speech conveyed the message that if the Union was
voted in, Respondent would close the plant. Respondent
contends that nothing in Fulton's speech rose to the level
of a threat of reprisal.
12 E.g, Lake Development Management Co., 259 NLRB 791 (1981),
Passavant Memorial Area Hospita4 237 NLRB 138 (1978), Intertherm, Inc,
235 NLRB 693, 699 (1978), enfd. as modified 596 F 2d 267 (8th Cir
1979)
12 Phillips Industrial Components, 216 NLRB 885 (1975) Cf Borg-
Warner Corp., 234 NLRB 1283 (1978).
14 Peavey Co, 249 NLRB 853, 857 (1980), enfd. as modified 648 F 2d
460 (7th Cir 1981).
ATLANTIC FOREST PRODUCTS 873
In NLRB v. Gissel Packing Co., 395 U.S. 575, 617
(1969), the Supreme Court stated:
Thus, § 8(c) (29 U.S.C. § 158(c)) merely implements
the First Amendment by requiring that the expres-
sion of "any views, arguments, or opinion" shall not
be "evidence of an unfair labor practice," so long as
such expression contains "no threat of reprisal or
force or promise of benefit" in violation of 8(a)(1).
Section 8(a)(1), in turn, prohibits interference, re-
straint or coercion of employees in the exercise of
their right to self-organization.
Any assessment of the precise scope of employer
expression, of course, must be made in the context
of its labor relations setting. Thus, an employer's
rights cannot outweigh the equal rights of the em-
ployees to associate freely, as those rights are em-
bodied in § 7 and protected by § 8(a)(1) and the
proviso to § 8(c). And any balancing of those rights
must take into account the economic dependence of
the employees on their employers, and the neces-
sary tendency of the former, because of that rela-
tionship, to pick up intended implications of the
latter that might be more clearly dismissed by a
more disinterested ear.
In Gissel, the employer made statements that the com-
pany was in precarious financial condition, that the union
in all likelihood would strike, and that the probable
result would be a plant shutdown. The Court found that
these statements were not predictions of demonstrable
economic consequences ' of unionization, but that they
were threats of reprisal. In Stride-Rite Corp., 228 NLRB
224, 230-234 (1977), the employer made a number of
statements about the closing of unionized plants and in-
formed employees that, its lease was terminable on 30
days' notice. It pointed out, "The truth is, any company
can always close a plant for economic reasons," and "If
[the union] gets in and disrupts our production or in any
way makes us noncompetitive so we can't sell our prod-
uct, those paychecks will stop." The Board rejected the
contention that these were predictions based on econom-
ic fact and found that the statements were threats of re-
prisal.
Here, Respondent did not state explicitly that its plant
would close if the Union won the election, but its state-
ments about plant closings could only create in the em-
ployees' minds a firm connection between past plant
closings and unionization. Thus, in describing the "bad
experiences" of Respondent's parent corporation, in each
instance the common operative fact stated was that the
plant was unionized. The suggestion was firmly planted
that the same could happen at Edenton. Thus, to grant
any unreasonable union demand would be "suicidal for
that operation." It was now the employees' turn "to con-
vince MacMillan Bloedel that you have faith in the com-
pany and that MacMillan Bloedel should continue to
have a very positive attitude toward Atlantic Forest
Products and its employees," (emphasis added) and
Fulton wanted to report "that there's no question about
Atlantic Forest Products having a stable, responsible
work force" when he discussed the future of the oper-
ations in Vancouver after the election. The implication
was clear . If employees voted for the Union, MacMillan
Bloedel would not be convinced of the, employees' faith
in the Company, it would not continue to have a positive
attitude toward them, and stability and responsibility of
the work force would be in doubt. To the interested em-
ployee listening to Fulton, the conclusion to be drawn
was that if the Union won, the future of the plant would
be in jeopardy and the Edenton operation was likely to
become the next "bad experience" of MacMillan Bloedel.
I find that Fulton's speech to the employees unlawfully
threatened employees with plant closure as alleged in the
complaint. 1 s
5. Interrogation
The complaint alleges and the General Counsel con-
tends that Supervisor Mack Jones interrogated employ-
ees concerning their union activities and sentiments in
violation of Section 8(a)(1). Respondent contends even if
interrogation occurred, it was so isolated and trivial that
it should be disregarded.
Norfleet's credited testimony establishes that on the
day before the election Jones called him aside to ask'him
how he was going to vote. Jones' own testimony indi-
cates that this was not an isolated incident but was part
of Jones' ongoing effort to ascertain the effects of Re-
spondent's preelection campaign on employees' support
for the Union. It occurred in the context of Respondent's,
vigorous campaign against the Union in' the course of
which Respondent otherwise violated the Act as found
herein. In these circumstances,,I find that Jones' interro-
gation of Norfleet violated Section 8(a)(1) of the Act.16
6. Speeches by Weber and Boag
The complaint alleges that Weber and Boag threatened
employees with job and benefit loss because of their
union activities. The General Counsel contends Weber
and Boag in their January 7 speeches repeated the threat
of plant closure made by Fulton 2 days earlier and that
Boag's remarks in context threatened that if the Union
won Respondent in bargaining would offer reduced
wages and benefits because the employees chose to be
represented . Respondent contends that in context neither
Weber nor Boag made any threats.
In Weber's brief- remarks explaining the sample ballot
he pointed to the No box and said , among other things,
"If' you do not want to take a chance on strikes and lost
paychecks and lost jobs; you will make an "X" in the No
box." In Boag 's speech, he referred to contentions by the
Union that what Fulton had said was untrue and reaf-
firmed the truth of Fulton 's remarks . Boag stated that it
was necessary for the plant to make a profit in order to
justify its continuance in Edenton and that he guaranteed
that Respondent would not increase existing financial
problems and production problems if that meant jeopard-
izing the future of the plant. Boag continued, telling em-
ployees not to be caught up in union statements that the
is Stride-Rite Corp., supra; Mohawk Bedding Co, 204 NLRH; 277
(1973), 216 NLRB 126 (1975).
16 American Commercial Bank, 226 NLRB 1130 (1976).
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company would pay the same wages in Edenton as else-
where and that excessively high wage scales could mean
the complete elimination of jobs as identified by Fulton
at three of the closed plants. Boag described his own sad
feelings seeing the looks of despair of the people who
lost their jobs and closed that portion of his remarks by
stating , "I can tell you I don't want to see it again."
Boag discussed further the possibility of strikes and
their affect on job security and pay. He referred to the
fact that the Company had unions at some of its other
locations and stated, "Our past experiences tells us that if
this union got in here it would be most difficult to con-
tinue to improve productively and efficiency in this
plant." Boag stated that if the Union were to get in, the
Company would be "tough" and would never give into a
union-called strike. He portrayed the election as a choice
between job security and "whether you are willing to
risk your steady job and paycheck and the welfare of
your family and this community on empty promises."
After discussing possible outcomes of bargaining, Boag
again characterized the question before the employees as
whether the Union "will help you or hurt you" and re-
turned to the earlier theme that Respondent would not
let the Union push it around, stating that it would not let
"ridiculous" union demands "put us out of business" or
allow the Union to "force us to put .your jobs in
danger," Boag said that if the Union struck to attempt to
force the Company to do anything which it thought
would hurt its business and affect employees' jobs, then
Respondent could "simply face up to a strike and get
people in here who want to work or close the plant down
if it can't be run efficiently. I repeat this will only be done
if it can't be run efficiently."
A careful reading of the speeches shows that Weber's
and Boag 's remarks can be construed as tying the pros-
pect of lost paychecks, lost jobs, and plant - closure to
possible union strikes. But there is much ambiguity in
their remarks, and in the context of the specific refer-
ences to Fulton's speech 2 days earlier and the dire pre-
diction-based on "past experience" that the Union would
make it difficult to improve production and efficiency, I
find that under the teaching of the Gissel case , the re-
peated references to job loss and plant closure were
likely to have been and were intended to be construed as
threats that the plant would close if the Union were
voted in. I find that Weber's and Boag 's speeches threat-
ened plant closure in violation of Section 8(a)(1) of the
Act.
Early in Boag's speech he pointed out that it was "ab-
solutely not true" that employees would "automatically"
get a pay raise if they voted for a union and that neither
side had to agree to any proposal made by the other
side. Later Boag stated that all benefits were negotiable
and that the Union might be willing to trade off a lot of
other things for a checkoff provision. He continued, "In
bargaining so far as we are concerned, everything starts
from scratch and even the benefits and wages you have
now are bargainable ." Boag pointed out that things
might get better or worse and "wages might go up or
down or stay the same." Boag also said that Respondent
had tried to provide good benefits and pay better wages
and intended to keep on improving wages and fringe
benefits whenever it could but would not let ridiculous
union demands for "more money" or anything else put it
out of business.
These statements at best conveyed conflicting signals.
On the one hand, employees already had been told that a
wage increase due them January 1 had been withheld,
that Respondent would follow the same wage policy
after the, election as before, and that, there would' be an
-immediate increase if the Union were rejected. Boag also
told them that Respondent intended'to continue improv-
ing wages when it could. On the other hand, he held out
the prospect that wages could go up or down or stay the
same as a result of bargaining despite the stated company
policy, the union assurance of automatic wage increases,
and the prospect of union demands for more money. A
listener would necessarily conclude that wages could
stay the same or go down only if Respondent in bargain-
ing from scratch proposed freezing or, reducing wages
and refused to agree to any increase. In the light of the
withheld January 1 increase, I find that Boag's remarks
reasonably intended to threaten employees with the loss
of wages and benefits they would otherwise have re-
ceived.17
IV. THE OBJECTIONS
The Union's objections 3, 4, 6, 7, 15, and 16 raise es-
sentially the same issues as the allegations of the com-
plaint. The finding above that Respondent violated-Sec-
tion 8(a)(1) of the Act during the period between the
filing of the petition on November 3, 1980, and the date
of the election warrant a finding that the objections have
merit. Accordingly, I shall recommend, that objections 3,
4, 6, 7, 15, and 16 be sustained.
v. THE REMEDY
Having found that Respondent-engaged in unfair labor
practices, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate- the policies of the Act. I
further recommend that the election held January 8,
1981, be set aside and that Case 11-RC-4938 be remand-
ed to the Regional Director for Region 11 for the pur-
pose of conducting a new election at such time as he
deems that circumstances permit a free choice of bar-
gaining representative. In view of the findings and con-
clusions above, Respondent's Motion to Dismiss the
complaint and objections is denied.
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW'
1. Atlantic Forest Products, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 20408, United Warehouse, Industrial and Af-
filiated Trades Employees Union is a labor organization
within the meaning of Section 2(5) of the Act.
17 Textron, Inc, 199 NLRB 131 (1972).
ATLANTIC FOREST PRODUCTS 875
3. By interrogating employees concerning their union
activities, by withholding a regularly scheduled wage in-
crease because of employees' union activities, by harass-
ing employees through following them or keeping them
under observation at work because of their union activi-
ties, and by threatening employees with plant closure
and loss of work benefits if they chose to be represented
by the Union, Respondent has engaged, in unfair labor
practices affecting commerce within the meaning of Sec-
tion 8(a)(3) and (1) and Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'8
ORDER
The Respondent, Atlantic Forest Products, Inc., Eden-
ton, North Carolina, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Interrogating employees about their union sympa-
thies or activities.
(b) Threatening employees with plant closure or loss
of work or benefits in the event they choose to be repre-
sented by a labor organization.
(c) Withholding or postponing regularly scheduled
wage increases because of employees' union activities.
(d) Harassing employees by following them or keeping
them under observation at work because of their union
activities.
(e) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of their
right to engage in or refrain from engaging in any or all
the activities specified in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its Edenton, North Carolina place of busi-
ness copies of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Regional
Director for Region 11, after being signed by the Re-
spondent's authorized representative, shall be posited by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
18 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."