BEMIS COMPANY, INC.

National Labor Relations Board - Board Decisions

Aug 7, 2020

370 N.L.R.B. 7 (N.L.R.B. 2020)

370 NLRB No. 7
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Bemis Company, Inc. and Graphic Communications
Conference of the International Brotherhood of
Teamsters, Local 727-S.
Bemis Company, Inc. and Philip A. McMeins. Cases
18–CA–202617, 18–CA–205446, 18–CA–205920,
18–CA–205927, 18–CA–207874, 18–CA–209515,
18–CA–210170, 18–CA–210936, and 18–CA–
211086
August 7, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On July 1, 2019, Administrative Law Judge Charles J.
Muhl issued the attached decision. The Respondent filed
exceptions and a supporting brief, the General Counsel
and the Charging Party Union filed answering briefs to the
Respondent’s exceptions, and the Respondent filed a reply
1 The Respondent has implicitly excepted to some of the judge’s cred-
ibility findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 In the absence of exceptions, we adopt the judge’s findings that the
Respondent violated Sec. 8(a)(1) by maintaining its nonsolicitation and
no-distribution policies, by enforcing its nonsolicitation policy to pro-
hibit employees from posting prounion materials on their lockers, by
writing in employee Elizabeth Nichols’ performance appraisal that she
was bothering employees with her union activity, and by engaging in
surveillance of her union activity, and Sec. 8(a)(3) and (1) by downgrad-
ing Nichols’ performance appraisal because of her union activity. Also,
in the absence of exceptions, we adopt the judge’s dismissal of the alle-
gation that the Respondent violated Sec. 8(a)(3) and (1) by refusing to
recall Nichols from her layoff.
3 We adopt the judge’s finding that the Respondent’s maintenance of
its off-duty access rule is unlawful under the first prong of Tri-County
Medical Center, 222 NLRB 1089 (1976). Although we recognize that
this case does not turn on the third prong of Tri-County, we would be
willing to reconsider the third prong of Tri-County in a future appropri-
ate case.
We also adopt the judge’s findings that the Respondent violated Sec.
8(a)(5) and (1) by unilaterally altering employees’ schedules from 8-hour
shifts to 12-hour shifts beginning on December 31, 2017, and by relat-
edly altering the schedules of employees who were restricted to 8 hours
of work per day. Although the General Counsel alleged in the complaint
that the schedules were altered on November 15, 2017, in fact the change
was only announced on that date, and the announcement was not alleged
as a separate violation. We further adopt the judge’s findings that the
Respondent violated Sec. 8(a)(5) and (1) by dealing directly with unit
employees when it solicited them to sign severance agreements regard-
ing their layoffs; by unilaterally laying off unit employees Coty Gearin,
Tyler Lewis, Kent Morlan, Chet Varner, Jeff McClurg, Elizabeth
brief. The General Counsel and Charging Parties filed
cross-exceptions and supporting briefs, the Respondent
filed an answering brief to the General Counsel’s and
Charging Party McMeins’ cross-exceptions, and the
Charging Party Union filed a reply brief.
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,1 findings,2 and conclusions3 only to
the extent consistent with this Decision and Order.4
1. The Discipline and Discharge of Linda Hesler
The Respondent is a multinational corporation that
manufactures plastic shrink bags for wrapping meat and
cheese products, including at the Centerville, Iowa facility
at issue in this case. Linda Hesler was a vocal, open union
supporter who had been employed by the Respondent for
23 years until she was discharged on July 21, 2017. We
adopt the judge’s finding, under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), that the Respondent violated
Section 8(a)(3) and (1) by discharging Hesler. After the
judge issued his decision in this case, however, the Board
clarified the animus element of the General Counsel’s
Nichols, Brian Shives, and other unnamed employees; by unilaterally
eliminating the general laborer and ink controller unit positions; by fail-
ing and refusing to provide the Union with relevant information it re-
quested on August 8, 2017; by engaging in surface bargaining during
first-contract negotiations; and by refusing to meet with the Union at rea-
sonable times for bargaining.
We clarify that the Respondent’s violations of Secs. 8(a)(3) and (5)
derivatively violated Sec. 8(a)(1) as alleged in the consolidated com-
plaint but not expressly stated by the judge in his conclusions of law.
Altura Communication Solutions, LLC, 369 NLRB No. 85, slip op. at 51
fn. 49 (2020) (an employer’s violation of Sec. 8(a)(5) is also a derivative
violation of Sec. 8(a)(1)); Napleton 1050, Inc. d/b/a Napleton Cadillac
of Libertyville, 367 NLRB No. 6, slip op. at 14 (2018) (conduct found to
be a violation of Sec. 8(a)(3) would also discourage employees from ex-
ercising their Sec. 7 rights and be a derivative violation of Sec. 8(a)(1)).
Further, we agree with the judge that the Respondent’s refusal to in-
clude certain mandatory subjects of bargaining in the contract did not
independently violate the Act as the Charging Party Union contends; the
additional violation was not pleaded in the complaint and, further, find-
ing the violation would not affect the remedy. We also find it unneces-
sary to pass on whether Morlan’s layoff additionally violated Sec. 8(a)(3)
because the additional finding would not materially affect the reinstate-
ment and make-whole remedy for Morlan. See The Strand Theatre of
Shreveport Corp., 346 NLRB 523, 523 fn. 2 (2006), enfd. 493 F.3d 515
(5th Cir. 2007).
Finally, we adopt the judge’s dismissals of allegations that the Re-
spondent violated Sec. 8(a)(1) by maintaining a policy banning “false”
statements and by discharging Supervisor Philip McMeins and violated
Sec. 8(a)(5) and (1) by changing its seniority preference policies for bid-
ding on shifts and jobs.
4 We shall modify the judge’s conclusions of law, remedy, and rec-
ommended Order to conform to our findings, to the Board’s standard
remedial language, and in accordance with our recent decision in Dan-
bury Ambulance Service, Inc., 369 NLRB No. 68 (2020). We shall also
substitute a new notice to conform to the Order as modified.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
initial burden of establishing that an alleged discrimi-
natee’s discharge was unlawfully motivated. Tschiggfrie
Properties, Ltd., 368 NLRB No. 120, slip op. at 5–8
(2019). As the Board there explained, the General Coun-
sel “does not invariably” establish the animus element
merely by showing “any evidence of the employer’s ani-
mus or hostility toward union or other protected activity.”
Id., slip op. at 7 (emphasis in original). “Instead, the evi-
dence must be sufficient to establish that a causal relation-
ship exists between the employee’s protected activity and
the employer’s adverse action against the employee.” Id.,
slip op. at 8. Here, we find that a “causal relationship”
between Hesler’s protected activity and the Respondent’s
discharge of Hesler has clearly been established by the
judge’s findings of specific animus towards her union ac-
tivity and the Respondent’s contemporaneous unfair labor
practices.
Contrary to the judge, however, we additionally find
that Hesler engaged in protected concerted activity when
she raised issues about working conditions during an April
2016 captive-audience meeting, at which the Respondent
discussed the organizing campaign with employees, and
two round-table meetings, held in December 2016 and
June 2017, at which the Respondent discussed particular
working conditions with employees. At these meetings,
Hesler raised many concerns. She objected to the Re-
spondent’s policies regarding reimbursement for safety
shoes and scheduling of employee vacations; she asserted
that new hires were being treated poorly in the extrusion
department; she complained that different departments
were unfairly held to different production standards; and
she requested a different day off for employees for the July
4th holiday and funding for a community safety day.
These concerns related to the work force generally, as well
as to issues directly affecting the working conditions of
multiple employees in attendance at these meetings, and
Hesler’s statements were made in response to issues raised
for the first time by management at the meetings. In these
circumstances, we infer that by speaking up about work-
ing conditions, Hesler sought to induce or prepare for
group action and was engaged in protected concerted ac-
tivity. See Alstate Maintenance, LLC, 367 NLRB No. 68,
slip op. at 7 (2019) (although statements made in meetings
or in presence of other employees are not automatically
concerted, the “totality of the circumstances” may support
“a reasonable inference that . . . the employee was seeking
5 Accord Caval Tool Division, Chromalloy Gas Turbine Corp., 331
NLRB 858, 863 (2000), enfd. 262 F.3d 184 (2d Cir. 2001); Whittaker
Corp., 289 NLRB 933, 934 (1988); but see Bud’s Woodfire Oven, LLC
d/b/a Ava’s Pizzeria, 368 NLRB No. 45, slip op. at 6 (2019) (employee’s
accusation made at an employee team meeting that a supervisor did not
to initiate, induce or prepare for group action”), clarifying
Meyers Industries, 268 NLRB 493 (1984) (Meyers I), re-
manded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), cert. denied 474 U.S. 948 (1985); Meyers Indus-
tries, 281 NLRB 882 (1986) (Meyers II), affd. sub nom.
Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), cert. de-
nied 487 U.S. 1205 (1988).5
2. The Respondent’s Social Media Rule
For the reasons stated below, we reverse the judge’s
finding that the Respondent’s maintenance of a social me-
dia rule violated Section 8(a)(1).
The Respondent maintains an employee handbook for
the Centerville facility with a subsection titled “Social
Media,” which states:
Employees are expected to be respectful and profes-
sional when using social media tools. With the rise of
websites like Facebook, MySpace, and LinkedIn, the
way in which employees can communicate internally
and externally continues to evolve. We expect our em-
ployees to exercise judgment in their communications
relating to Bemis so as to effectively safeguard the rep-
utation and interests of Bemis.
Employees should:
 Communicate in a respectful and professional
manner;
 Avoid disclosing proprietary information; and
Each employee is responsible for respecting the rights of
their co-workers and conducting themselves in a manner
that does not harass, disrupt, or interfere with another
person’s work performance or in a manner that does not
create an intimidating, offensive, or hostile work envi-
ronment.
Applying The Boeing Co., 365 NLRB No. 154 (2017),
the judge found that the first paragraph of the rule is un-
lawful.6 He found that, because the rule applies to private
social media activity and instructs employees to avoid
communications on social media that would harm the Re-
spondent’s reputation, it would restrain employees’ dis-
cussions about their working conditions. He further con-
cluded that the rule’s impact on Section 7 activity out-
weighed the Respondent’s interest in protecting its brand
and the brands of its customers.7
do anything in the restaurant was not concerted where there was no evi-
dence that other employees shared his concerns).
6 The first paragraph was the only section of the rule alleged to be
unlawful in the complaint.
7 Under Boeing, the Board first determines whether a challenged rule
or policy, reasonably interpreted, would potentially interfere with the
BEMIS COMPANY, INC. 3
We disagree and reverse. The Board has repeatedly
held that, in analyzing the lawfulness of a work rule, it
must refrain from reading particular phrases in isolation.
Interstate Management Co., LLC, 369 NLRB No. 84, slip
op. at 4 fn. 10 (2020); LA Specialty Produce Co., 368
NLRB No. 93, slip op. at 4–5 (2019). We find that an
objectively reasonable employee would understand that
the first paragraph of the rule sets out a general expecta-
tion that is more fully defined by the explanatory language
that follows. Read in its entirety, the rule makes clear that,
to safeguard the reputation and interests of the company,
employees referring to the company on social media must
be respectful and professional, must not disclose proprie-
tary information, must respect their coworkers, and must
not harass, disrupt, or interfere with another person’s work
or create an intimidating, offensive, or hostile work envi-
ronment. Employees would reasonably understand that
adhering to those specific expectations would support the
general expectations described in the rule’s first paragraph
without infringing on their Section 7–protected rights to
discuss, criticize, or complain about working conditions
with coworkers or the public when using social media.
The judge’s decision finding to the contrary focused on
two mistaken conclusions. First, the judge erroneously
found that the rule would interfere with employees’ pri-
vate communications. The rule’s stated purpose, how-
ever, is to protect the reputation of the company. Accord-
ingly, the rule clearly concerns communications that could
affect the public’s view of the company, such as those
posted on social media, rather than private conversations
among employees. Second, the judge reasoned that the
first and third sentences of the rule could have been
drafted more narrowly. Putting aside the fact that, as dis-
cussed above, the meaning of the first and third sentences
is sufficiently clear when those sentences are read in the
context of the entire rule, the Board has made clear that it
will not find rules unlawful simply because they could
have been written more narrowly. See LA Specialty Pro-
duce Co., above, slip op. at 1–2; Boeing, above, slip op. at
11–14.
Accordingly, we reverse the judge and dismiss the alle-
gation that the Respondent’s social media rule is unlaw-
ful.8
exercise of rights under Sec. 7 of the Act. If not, the rule or policy is
lawful. If so, the Board determines whether an employer violates Sec.
8(a)(1) of the Act by maintaining the rule or policy by balancing “the
nature and extent of the potential impact on NLRA rights” against “le-
gitimate justifications associated with the rule,” viewing the rule or pol-
icy from the employees’ perspective. Id., slip op. at 3.
8 Because we find that the rule would not interfere with the exercise
of employees’ Sec. 7 rights, we need not address the Respondent’s
AMENDED CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a Section 2(5) labor organization and
the designated exclusive collective-bargaining representa-
tive of the following appropriate unit of the Respondent’s
employees:
All full-time and regular part-time production employ-
ees working in extrusion, press and pre-press, and fin-
ishing departments; and all full-time and regular part-
time employees working in maintenance, quality assur-
ance, distribution, and shipping and receiving depart-
ments; excluding office clerical, sales, engineers, tempo-
rary employees, and supervisors and guards as defined
in the Act, as amended.
3. The Respondent violated Section 8(a)(1) by main-
taining its nonsolicitation, no-distribution, and off-duty
access to company property rules.
4. The Respondent violated Section 8(a)(1) on March
27, 2017, by banning employees from posting material on
their lockers, pursuant to its unlawful nonsolicitation rule
and in response to employees’ union activities.
5. The Respondent violated Section 8(a)(1) on April 9,
2017, by writing in Elizabeth Nichols’ performance ap-
praisal that her lower rating in “Work Relationships” was
due to her union activity.
6. The Respondent violated Section 8(a)(1) on June 23,
2017, by instructing its supervisor to engage in surveil-
lance of Elizabeth Nichols’ union activity.
7. The Respondent violated Section 8(a)(3) and (1) on
April 9, 2017, by downgrading Elizabeth Nichols’ perfor-
mance appraisal due to her union activity.
8. The Respondent violated Section 8(a)(3) and (1) on
July 28, 2017, by discharging Linda Hesler due to her un-
ion activity.
9. The Respondent violated Section 8(a)(5) and (1) on
June 26, 2017, by unilaterally laying off Jeff McClurg,
Elizabeth Nichols, Brian Shives and other unnamed em-
ployees on a temporary basis.9
10. The Respondent violated Section 8(a)(5) and (1) on
July 7, 2017, by unilaterally and permanently laying off
Coty Gearin, Tyler Lewis, Kent Morlan, and Chet Varner.
justification for the rule, and we designate it a Category 1(a) rule under
Boeing. LA Specialty Produce Co., above, slip op. at 2; Boeing Co.,
above, slip op. at 3.
9 Identities of any additional employees unilaterally laid off on June
26, 2017, as alleged in the complaint and found by the judge, may be
determined at the compliance stage of this proceeding.
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11. The Respondent violated Section 8(a)(5) and (1) on
July 7, 2017, by unilaterally eliminating the bargaining-
unit job classifications of ink controller and maintenance
laborer.
12. The Respondent violated Section 8(a)(5) and (1) on
July 7, 2017, by bypassing the Union and dealing directly
with bargaining-unit employees by unilaterally providing
them severance agreements in connection with their per-
manent layoffs.
13. The Respondent has violated Section 8(a)(5) and
(1) since August 9, 2017, by refusing to furnish the Union
with relevant information the Union requested.
14. Respondent violated Section 8(a)(5) and (1) on De-
cember 31, 2017, by unilaterally changing employees’
work schedules from 8-hour to 12-hour shifts, and by re-
latedly altering the schedules of employees who were re-
stricted to 8 hours of work per day.
15. The Respondent violated Section 8(a)(5) and (1) by
refusing to meet with the Union at reasonable times for
bargaining for an initial collective-bargaining agreement.
16. The Respondent violated Section 8(a)(5) and (1) by
engaging in surface bargaining and failing to bargain in
good faith with the Union for an initial collective-bargain-
ing agreement.
17. The above unfair labor practices affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and desist
and to take certain affirmative action designed to effectu-
ate the policies of the Act. Specifically, we amend the
judge’s remedy in the following respects.
We shall delete the requirement that the Respondent re-
move from its files any reference to the unlawful layoff of
Kent Morlan.
We shall order the Respondent to reinstate and make
whole the employees who formerly held the positions of
ink controller and maintenance laborer, consistent with the
unlawfully permanently laid-off employees as described
in the judge’s recommended remedy, and to reimburse
them and the temporarily laid-off employees Jeff
McClurg, Elizabeth Nichols, Brian Shives, and any other
10 See also Regency Service Carts, Inc., 345 NLRB 671 (2005).
11 The Respondent has not excepted to the judge’s recommended af-
firmative bargaining order or other extraordinary remedies, which we
adopt. Indeed, although in its answering brief to the cross-exceptions of
the General Counsel and Charging Party McMeins the Respondent op-
poses an order requiring it to reimburse the Union’s bargaining expenses,
it also states:
[E]ven if the Board affirms the ALJD’s conclusion that Bemis engaged
in surface bargaining and refused to meet at reasonable times, the
ALJD’s remedy (issuance of cease-and-desist and affirmative
employees unilaterally laid off at that time for any search-
for-work and interim employment expenses to be deter-
mined at the compliance stage of this proceeding, con-
sistent with the Board’s decision in King Soopers, Inc.,
364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d
23 (D.C. Cir. 2017).
In addition to the remedies imposed by the judge for the
Respondent’s unlawful surface bargaining and refusal to
meet at reasonable times, we shall order the Respondent
to reimburse the Union for its bargaining expenses. As the
Board explained in Frontier Hotel & Casino, 318 NLRB
857 (1995), enfd. in relevant part sub nom. Unbelievable,
Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997):
In cases of unusually aggravated misconduct … where
it may fairly be said that a respondent’s substantial unfair
labor practices have infected the core of a bargaining
process to such an extent that their “effects cannot be
eliminated by the application of traditional reme-
dies,” NLRB v. Gissel Packing Co., 395 U.S. 575, 614
(1969), citing NLRB v. Logan Packing Co., 386 F.2d
562, 570 (4th Cir. 1967), an order requiring the respond-
ent to reimburse the charging party for negotiation ex-
penses is warranted both to make the charging party
whole for the resources that were wasted because of the
unlawful conduct, and to restore the economic strength
that is necessary to ensure a return to the status quo ante
at the bargaining table.… [T]his approach reflects the di-
rect causal relationship between the respondent’s actions
in bargaining and the charging party’s losses.
318 NLRB at 859.10
We agree with the General Counsel that the extraordi-
nary remedy of ordering reimbursement of the Union’s
bargaining expenses is warranted under the circumstances
of this case. Although we adopt the judge’s recommended
remedies, including a 12-month extension of the certifica-
tion year in accordance with Mar-Jac Poultry Co., 136
NLRB 785 (1962), a minimum bargaining schedule, and
written progress reports, we find that these remedies will
not make the Union whole for the substantial financial ex-
penses incurred as a result of the Respondent’s bad faith
in negotiations.11 As the judge describes in detail, and as
we have found, the Respondent prevented meaningful
bargaining orders, requirement that the certification year should be ex-
tended by one year, and instituting a minimum bargaining schedule)
should remain unchanged.
The Respondent expressly agrees that an affirmative bargaining order
is warranted. It is therefore unnecessary to further justify the imposition
of this order consistent with Vincent Industrial Plastics, Inc. v. NLRB,
209 F.3d 727, 738 (D.C. Cir. 2000).
BEMIS COMPANY, INC. 5
progress toward a contract throughout the 18-month pe-
riod during which the parties were meeting to negotiate.
Significantly, the Respondent failed and refused to meet
at reasonable times with the Union, despite persistent re-
quests by the Union to meet more frequently and for
longer periods due to the unproductive negotiating ses-
sions, requests that the Respondent regularly rejected even
well after the need for a more aggressive bargaining
schedule was obvious. The Respondent also flatly refused
to include provisions on numerous mandatory bargaining
subjects in the contract, citing its desire for a “minimalist”
contract and insisting instead on referencing, but not in-
corporating, existing handbook policies affecting manda-
tory terms and conditions of employment, which it would
have the unfettered ability to change without bargaining.
Moreover, the Respondent made only insignificant edito-
rial changes to its proposals which it touted as new pro-
posals, wasted time in bargaining sessions with lengthy
discussions of non-bargaining-related or minor matters,
and refused to discuss economic matters until after the ex-
piration of the Union’s initial certification year. In fact,
the Respondent did not submit a full economic proposal
until more than 5 months after expiration of the initial cer-
tification year (and in the same month that a decertifica-
tion petition was filed). The Respondent also made nu-
merous unilateral changes to terms and conditions of em-
ployment that were mandatory subjects of bargaining and
bypassed the Union to deal directly with unit employees
during the period it was ostensibly negotiating with the
Union for a first contract.
As for the financial impact on the Union, the Union’s
chief negotiator Philip Roberts was stationed at the Un-
ion’s international office near Nashville, Tennessee, about
600 miles from Centerville, Iowa where negotiations took
place. Roberts and members of the Union bargaining
committee met with the Respondent on a total of 42 days
and made 21 trips to Centerville. The Union shouldered
significant expenses that included Roberts’ multiple
flights to Des Moines, the bargaining team’s nearly 2-hour
drives from Des Moines to Centerville, and lodging ex-
penses. At a time when the newly certified Union was
particularly susceptible to conduct that would undermine
employee support, the drain on the Union’s resources
would have hampered its ability to fulfill its representa-
tional duties to unit employees during and beyond the crit-
ical certification year. In these circumstances, reimburse-
ment of bargaining expenses is warranted to make the Un-
ion whole for the resources that were wasted because of
the Respondent’s conduct, to restore the Union’s eco-
nomic strength, and to ensure a return to the status quo
ante at the bargaining table. See, e.g., Richfield Hospital-
ity, 369 NLRB No. 111, slip op. at 2–3, 5 (2020)
(awarding negotiating expenses where the employer en-
gaged in surface bargaining and recidivist unlawful con-
duct, including implementing additional unlawful unilat-
eral wage decreases, despite “a serious unremedied unfair
labor practice that affect[ed] the negotiations”); Hospital
of Barstow, Inc. d/b/a Barstow Community Hospital, 361
NLRB 352, 355–356 (2014) (awarding negotiating ex-
penses where the employer’s bad-faith bargaining “caused
the Union to waste its resources in futile bargaining” and
occurred during the critical postelection period when the
newly certified union would be susceptible to unfair labor
practices that would undermine employee support),
adopted and incorporated by reference in 364 NLRB No.
52 (2016), enfd. 897 F.3d 280 (D.C. Cir. 2018); Fallbrook
Hospital Corp. d/b/a Fallbrook Hospital, 360 NLRB 644,
645–646 (2014) (awarding negotiation expenses where
the employer “deliberately acted to prevent any meaning-
ful progress during bargaining sessions,” and noting that
such expenses may include reasonable salaries, travel ex-
penses, and per diems), enfd. 785 F.3d 729 (D.C. Cir.
2015).
Accordingly, in addition to the remedies recommended
by the judge, we shall order the Respondent to reimburse
the Union for the bargaining expenses the Union incurred
during the period of time from November 2, 2016, through
the date of the complaint, April 26, 2018, upon submission
by the Union of a verified statement of costs and expenses.
ORDER
The Respondent, Bemis Company, Inc., Centerville,
Iowa, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining a nonsolicitation rule prohibiting em-
ployees from soliciting during nonworking time in non-
working or working areas.
(b) Maintaining a no-distribution rule prohibiting em-
ployees from distributing or posting union literature dur-
ing nonworking time in nonworking areas without super-
visory approval.
(c) Maintaining an off-duty access to company property
rule restricting employees from access to nonworking ar-
eas outside the plant without supervisory approval.
(d) Enforcing its nonsolicitation policy in response to
employees’ union activity by banning employee postings
on their lockers.
(e) Telling employees their performance appraisals will
be downgraded because of their union or protected con-
certed activities.
(f) Placing employees under surveillance while they en-
gage in union or other protected concerted activities.
(g) Downgrading employees’ performance appraisals
because of their union or other protected concerted activi-
ties.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(h) Discharging or otherwise discriminating against
employees because they support the Union or any other
labor organization or engage in protected concerted activ-
ities.
(i) Unilaterally changing the terms and conditions of
employment of its unit employees by laying off unit em-
ployees, eliminating bargaining-unit positions, and chang-
ing unit employees’ work schedules.
(j) Bypassing the Union and dealing directly with em-
ployees regarding their terms and conditions of employ-
ment.
(k) Refusing to bargain collectively with the Union by
failing and refusing to furnish it with requested infor-
mation that is relevant and necessary to the Union’s per-
formance of its functions as the exclusive collective-bar-
gaining representative of the Respondent’s unit employ-
ees.
(l) Failing and refusing to meet with the Union at rea-
sonable times for bargaining.
(m) Failing and refusing to bargain in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the bargaining unit.
(n) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the nonsolicitation, no-distribution, and
off-duty access to company property rules, or revise them
to remove any language that prohibits or reasonably would
be read to prohibit conduct protected by Section 7 of the
Act.
(b) Furnish employees with inserts for the current em-
ployee handbook that (1) advise that the unlawful nonso-
licitation, no-distribution, and off-duty access to company
property rules have been rescinded, or (2) provide lawfully
worded provisions on adhesive backing that will cover the
unlawful provisions; or publish and distribute to employ-
ees a revised employee handbook that (1) does not contain
the unlawful provisions, or (2) provides lawfully worded
provisions.
(c) Rescind the ban on employee postings on their lock-
ers and advise employees in writing that this has been
done.
(d) Within 14 days from the date of this Order, rescind
the “work performance” rating and narrative in Elizabeth
Nichols’ April 9, 2017 performance appraisal and remove
from its files any references to them, and within 3 days
thereafter, notify Elizabeth Nichols in writing that this has
been done and that these unlawful acts will not be used
against her in any way.
(e) Within 14 days from the date of this Order, offer
Linda Hesler full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or other rights or privi-
leges previously enjoyed.
(f) Make Linda Hesler whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her, in the manner set forth in the remedy section
of the judge’s decision as amended in this decision.
(g) Compensate Linda Hesler for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 18,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years.
(h) Compensate Linda Hesler for her reasonable
search-for-work and interim employment expenses re-
gardless of whether those expenses exceed her interim
earnings.
(i) Within 14 days from the date of this Order, remove
from its files any references to the unlawful discharge of
Linda Hesler, and within 3 days thereafter, notify her in
writing that this has been done and that the discharge will
not be used against her in any way.
(j) Rescind the changes in the terms and conditions of
employment of its unit employees that were unilaterally
implemented on June 26, July 7, and December 31, 2017.
(k) Within 14 days from the date of this Order, offer
Coty Gearin, Tyler Lewis, Kent Morlan, Chet Varner, and
the employees who previously held the positions of ink
controller and maintenance laborer full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights or privileges previously enjoyed.
(l) Make Coty Gearin, Tyler Lewis, Kent Morlan, Chet
Varner, Jeff McClurg, Elizabeth Nichols, Brian Shives,
the employees who previously held the positions of ink
controller and maintenance laborer, and any other em-
ployee unlawfully laid off on June 26, 2017, whole for any
loss of earnings or other benefits suffered as a result of
their unlawful layoffs or the elimination of their jobs, in
the manner set forth in the remedy section of the judge’s
decision as amended in this decision.
(m) Compensate Coty Gearin, Tyler Lewis, Kent Mor-
lan, Chet Varner, Jeff McClurg, Elizabeth Nichols, Brian
Shives, the employees who previously held the positions
of ink controller and maintenance laborer, and any other
employee unlawfully laid off on June 26, 2017, for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director for Re-
gion 18, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, a report
BEMIS COMPANY, INC. 7
allocating the backpay award to the appropriate calendar
years for each employee.
(n) Compensate Coty Gearin, Tyler Lewis, Kent Mor-
lan, Chet Varner, Jeff McClurg, Elizabeth Nichols, Brian
Shives, the employees who previously held the positions
of ink controller and maintenance laborer, and any other
employee unlawfully laid off on June 26, 2017, for their
reasonable search-for-work and interim-employment ex-
penses regardless of whether those expenses exceed their
interim earnings.
(o) Make whole any unit employees, including those
who were restricted to 8 hours of work per day, who were
adversely affected by changes to their work schedules un-
lawfully implemented on December 31, 2017, for any loss
of earnings or other benefits suffered as a result of the un-
lawful changes, in the manner set forth in the remedy sec-
tion of the judge’s decision as amended in this decision.
(p) Compensate unit employees who lost earnings as a
result of the unlawful changes in work schedules for the
adverse tax consequences, if any, of receiving a lump-sum
backpay award, and file with the Regional Director for Re-
gion 18, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar years
for each employee.
(q) Furnish to the Union in a timely manner the infor-
mation requested by the Union on August 8, 2017, insofar
as such information has not already been furnished.
(r) On request, bargain with the Union in good faith and
at reasonable times as the exclusive collective-bargaining
representative of the employees in the following appropri-
ate unit concerning terms and conditions of employment
and, if an understanding is reached, embody the under-
standing in a signed agreement. Such bargaining sessions
shall be held for a minimum of 4 days per month, for at
least 6 hours per bargaining session, or, in the alternative,
on another schedule to which the Union agrees. The Re-
spondent shall submit written bargaining progress reports
every 30 days to the compliance officer for Region 18,
serving copies thereof on the Union. The appropriate unit
is:
All full-time and regular part-time production employ-
ees working in extrusion, press and pre-press, and fin-
ishing departments; and all full-time and regular part-
12 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted
within 14 days after service by the Region. If the facility involved in
these proceedings is closed due to the Coronavirus Disease 2019
(COVID-19) pandemic, the notices must be posted within 14 days after
the facility reopens and a substantial complement of employees have re-
turned to work, and the notices may not be posted until a substantial com-
plement of employees have returned to work. Any delay in the physical
time employees working in maintenance, quality assur-
ance, distribution, and shipping and receiving depart-
ments; excluding office clerical, sales, engineers, tempo-
rary employees, and supervisors and guards as defined
in the Act, as amended.
(s) Compensate the Union for all bargaining expenses
it incurred during the period beginning November 1, 2016,
through April 26, 2018, when the Respondent engaged in
unlawful surface bargaining. Upon receipt of a verified
statement of costs and expenses from the Union, the Re-
spondent promptly shall submit a reimbursement pay-
ment, in the amount of those costs and expenses, to the
compliance officer for Region 18 of the National Labor
Relations Board, who will document receipt and forward
the payment to the Union.
(t) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(u) Post at its Centerville, Iowa facility copies of the
attached notice marked “Appendix.”12 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 18, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. The
Respondent shall take reasonable steps to ensure that the
notices are not altered, defaced, or covered by any other
material. If the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
November 1, 2016.
posting of paper notices also applies to the electronic distribution of the
notice if the Respondent customarily communicates with its employees
by electronic means. 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 National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(v) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsi-
ble official on a form provided by the Regional Director
attesting to the steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the certification of the Un-
ion issued by the Board on May 13, 2016, is extended for
a period of 1 year commencing from the date on which the
Respondent begins to bargain in good faith with the Un-
ion, and that the complaint is dismissed insofar as it al-
leges violations of the Act not specifically found.
Dated, Washington, D.C. August 7, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT maintain a nonsolicitation rule prohibit-
ing you from solicitation during nonworking time in non-
working or working areas.
WE WILL NOT maintain a no-distribution rule prohibit-
ing you from distributing or posting union literature dur-
ing nonworking time in nonworking areas without super-
visory approval.
WE WILL NOT maintain an off-duty access to company
property rule restricting your access to nonworking areas
outside the plant without supervisory approval.
WE WILL NOT ban postings on your lockers pursuant to
an unlawful nonsolicitation rule or because you post union
literature on your lockers.
WE WILL NOT tell you that your performance appraisal
will be downgraded because of your union or other pro-
tected concerted activities.
WE WILL NOT place you under surveillance while you
engage in union or other protected concerted activities.
WE WILL NOT downgrade your performance appraisal
because of your union or other protected concerted activi-
ties.
WE WILL NOT discharge or otherwise discriminate
against you for supporting the Union or any other labor
organization or for engaging in protected concerted activ-
ities.
WE WILL NOT unilaterally change the terms and condi-
tions of your employment by laying you off, eliminating
bargaining unit job positions, or changing your work
schedules.
WE WILL NOT bypass the Union and deal directly with
you regarding your terms and conditions of employment.
WE WILL NOT refuse to bargain collectively with the Un-
ion by failing and refusing to furnish it with requested in-
formation that is relevant and necessary to the Union’s
performance of its functions as the collective-bargaining
representative of our unit employees.
WE WILL NOT fail and refuse to meet with the Union at
reasonable times for bargaining.
WE WILL NOT fail and refuse to bargain in good faith
with the Union as the exclusive collective-bargaining rep-
resentative of our employees in the bargaining unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind or revise the unlawful nonsolicitation,
no-distribution, and off-duty access to company property
rules described above.
WE WILL furnish you with inserts for the current em-
ployee handbook that (1) advise that the unlawful nonso-
licitation, no-distribution, and off-duty access to company
property rules have been rescinded, or (2) provide lawfully
worded provisions on adhesive backing that will cover the
unlawful provisions; or publish and distribute to employ-
ees a revised employee handbook that (1) does not contain
the unlawful provisions, or (2) provides lawfully worded
provisions.
WE WILL rescind our ban on postings on employees’
lockers and WE WILL advise you in writing that we have
done so and that the ban will no longer be enforced.
BEMIS COMPANY, INC. 9
WE WILL, within 14 days from the date of the Board’s
Order, rescind the “work performance” rating and narra-
tive in Elizabeth Nichols’ April 9, 2017 performance ap-
praisal and remove from our files all references to them
and WE WILL, within 3 days thereafter, notify her in writ-
ing that this has been done and that these unlawful acts
will not be used against her in any way.
WE WILL, within 14 days from the date of the Board’s
order, offer Linda Hesler full reinstatement to her former
job or, if her job no longer exists, to a substantially equiv-
alent position, without prejudice to her seniority or any
other rights or privileges she previously enjoyed.
WE WILL make Linda Hesler whole for any loss of earn-
ings and other benefits resulting from her unlawful dis-
charge, less any net interim earnings, plus interest, and WE
WILL also make her whole for reasonable search-for-work
and interim employment expenses, plus interest.
WE WILL compensate Linda Hesler for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and WE WILL file with the Regional Director for
Region 18, within 21 days of the date the amount of back-
pay is fixed, either by agreement or Board order, a report
allocating the backpay award to the appropriate calendar
years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files all references to the unlawful
discharge of Linda Hesler and WE WILL, within 3 days
thereafter, notify her that this has been done and that the
discharge will not be used against her in any way.
WE WILL rescind the changes in the terms and condi-
tions of employment for our unit employees that were uni-
laterally implemented on June 26, July 7, and December
31, 2017.
WE WILL, within 14 days from the date of the Board’s
order, offer Coty Gearin, Tyler Lewis, Kent Morlan, Chet
Varner, and the employees who previously held the posi-
tions of ink controller and maintenance laborer full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges pre-
viously enjoyed.
WE WILL make Coty Gearin, Tyler Lewis, Kent Morlan,
Chet Varner, Jeff McClurg, Elizabeth Nichols, Brian
Shives, the employees who previously held the positions
of ink controller and maintenance laborer, and any other
employee unlawfully laid off on June 26, 2017, whole for
any loss of earnings or other benefits resulting from their
unlawful layoffs or the elimination of their jobs, less any
net interim earnings, plus interest, and WE WILL also make
them whole for reasonable search-for-work and interim
employment expenses, plus interest.
WE WILL compensate Coty Gearin, Tyler Lewis, Kent
Morlan, Chet Varner, Jeff McClurg, Elizabeth Nichols,
Brian Shives, the employees who previously held the po-
sitions of ink controller and maintenance laborer, and any
other employee unlawfully laid off on June 26, 2017, for
the adverse tax consequences, if any, of receiving lump-
sum backpay awards, and WE WILL file with the Regional
Director for Region 18, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board
order, a report allocating the backpay awards to the appro-
priate calendar years for each employee.
WE WILL make our unit employees whole for any loss
of earnings and other benefits suffered as a result of our
unlawful changes to employee work schedules.
WE WILL compensate our unit employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards as a result of any losses that resulted from
our unlawful schedule changes, and WE WILL file with the
Regional Director for Region 18, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay awards to
the appropriate calendar years for each employee.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on August 8, 2017.
WE WILL, on request, bargain with the Union in good
faith and at reasonable times as the exclusive collective-
bargaining representative of our employees in the follow-
ing appropriate unit concerning terms and conditions of
employment, and, if an understanding is reached, embody
the understanding in a signed agreement. The initial year
of certification of the Union has been extended for an ad-
ditional 12 months from the date we comply with the
Board’s Order. The appropriate unit is:
All full-time and regular part-time production employ-
ees working in extrusion, press and pre-press, and fin-
ishing departments; and all full-time and regular part-
time employees working in maintenance, quality assur-
ance, distribution, and shipping and receiving depart-
ments; excluding office clerical, sales, engineers, tempo-
rary employees, and supervisors and guards as defined
in the Act, as amended.
WE WILL, on request, hold bargaining sessions for a
minimum of 4 days per month, at least 6 hours per day, or,
in the alternative, on another schedule to which the Union
agrees, and WE WILL submit a written bargaining progress
report every 30 days to the compliance officer for Region
18, with a copy served on the Union.
WE WILL compensate the Union for all bargaining ex-
penses it incurred from November 1, 2016, through April
26, 2018, when we failed to bargain in good faith.
BEMIS COMPANY, INC.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board’s decision can be found at
www.nlrb.gov/case/07-CA-202617 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Joseph Bornong, Esq. and David Stolzberg, Esq., for the General
Counsel.
Kevin J. Kinney, Esq. (Ogletree, Deakins, Nash, Smoak & Stew-
art, P.C.), of Milwaukee, Wisconsin, for the Respondent.
Philip Roberts, of White House, Tennessee, for Charging Party
Graphic Communications Conference of the International
Brotherhood of Teamsters, Local 727-S.
Philip A. McMeins, pro se.
DECISION
CHARLES J. MUHL, Administrative Law Judge. Section 8(d)
of the National Labor Relations Act defines the duty to bargain
collectively as the mutual obligation of an employer and a union
to:
[m]eet at reasonable times and confer in good faith with respect
to wages, hours, and other terms and conditions of employ-
ment, or the negotiation of an agreement or any question aris-
ing thereunder . . . but such obligation does not compel either
party to agree to a proposal or require the making of a conces-
sion.
The tension in this language is obvious. On the one hand, the
statute imposes a duty to bargain in good faith. That duty pre-
supposes a sincere purpose by parties to find a basis to reach
agreement on a contract. A party cannot merely go through the
motions during bargaining. On the other hand, the statute per-
mits a party to refuse to make concessions, even though compro-
mise typically is an essential component to reaching an agree-
ment. Because of this tension, the Board looks to the totality of
a party’s conduct, both at and away from the bargaining table, to
determine if bad-faith bargaining has occurred. Given that
standard, the line between unlawful “surface bargaining” and
lawful “hard bargaining” long has been a difficult one to draw.
The evaluation becomes even more challenging and sensitive
when, as in this case, the claim is that bargaining for a first con-
tract has not been in good faith. In May 2016, the Board certified
Teamsters Local 727-S as the exclusive collective-bargaining
representative of certain employees working at a manufacturing
facility of Respondent Bemis Company, Inc., in Centerville,
Iowa. The Union won the election by a relatively narrow margin,
112 to 95. For 20 months thereafter, the Respondent and the
Union met 44 times, yet did not reach overall agreement on an
initial contract. They did not even come close, managing just
eight tentative agreements, almost all on minor subjects involv-
ing minimal language. They did not reach any economic agree-
ments, with the Respondent not even submitting its first eco-
nomic proposal until the end of the 24th day of negotiations, 11
months in. The General Counsel’s complaint alleges the failure
to reach an agreement occurred, because the Respondent en-
gaged in surface bargaining in violation of Section 8(a)(5). The
complaint also claims the Respondent refused to meet at reason-
able times with the Union, in violation of Section 8(d) and
8(a)(5). Finally, the complaint contains a plethora of additional
allegations against the Respondent involving violations of Sec-
tion 8(a)(1), (3), and (5), all occurring as negotiations were on-
going.
The record evidence establishes that the Respondent was used
to doing things its own way at the Centerville facility and wanted
to continue doing things its own way, even after the Union be-
came the employees’ bargaining representative. On multiple oc-
casions, the Respondent unlawfully disregarded its newfound
obligation to bargain with the Union over terms and conditions
of employment. It unilaterally laid off employees and engaged
in direct dealing by offering separation agreements to some of
them. The Respondent also unilaterally eliminated bargaining
unit positions and imposed a dramatic work schedule change
from 8 hours a day, 5 days per week to 12 hours a day, 3 days
one week and 4 days the next. The unilateral changes sent a
message to employees that their choice to be represented by a
union was futile. In addition, the Respondent was well aware of
the close election vote and took numerous, unlawful actions to
further erode employee support for the Union. It discharged a
strong union supporter due to her union activity; permanently
laid off another employee because it wanted to retain an anti-
union employee; and downgraded a third employee’s perfor-
mance appraisal due to her union activity. The Respondent also
ordered a supervisor to engage in surveillance of an employee’s
union activity and banned employee locker postings after a union
newsletter was posted.
In negotiations, the Respondent met repeatedly with the Un-
ion, exchanged many proposals, and, for the most part, explained
its positions. However, despite the lack of productivity in bar-
gaining, the Respondent steadfastly refused, or ignored, the Un-
ion’s calls for more negotiation dates. It typically offered no ex-
planation but, when it did, relied upon the busy negotiator ex-
cuse. The bargaining date history and correspondence between
the parties establishes that the Respondent believed meeting
once a month for two days of bargaining was sufficient, irrespec-
tive of the slow progress and overall length of the negotiations.
At the table, the Respondent sought to exclude multiple manda-
tory subjects of bargaining from the contract and retain them as
employee handbook policies it could change without the Union’s
agreement. The subjects included discipline and job promo-
tions/transfers, two of the most critical ones to bargaining unit
employees. In doing so, the Respondent refused to memorialize
any agreements reached with the Union on the policies. It also
gave mixed signals to the Union about the effects of keeping the
policies outside the contract, resulting in no clarity as to what
agreeing to the provisions would mean. Moreover, and con-
sistent with how it was handling its bargaining obligations at the
plant, the Respondent made multiple proposals to retain
BEMIS COMPANY, INC. 11
unilateral control over mandatory subjects of bargaining and
sought a broad management-rights clause which never changed
throughout negotiations. If agreed to, these proposals would
have put the Union in a worse position than if no contract was
reached. The Respondent offered no meaningful concessions in
return. It engaged in other dilatory tactics, including delaying its
submission of an economic proposal and submitting numerous
counterproposals which contained minor language changes of no
substance. The Respondent also sought to limit the Union’s abil-
ity to communicate with employees at the plant.
Given this totality of conduct, I conclude the Respondent had
a cast of mind against reaching an agreement and engaged in sur-
face bargaining.
STATEMENT OF THE CASE
On July 18, 2017, the Graphics Communication Conference
of the International Brotherhood of Teamsters, Local 727-S (the
Union), initiated this case by filing the original unfair labor prac-
tice charge against Bemis Company, Inc. (the Respondent). Re-
gion 18 of the National Labor Relations Board (the Board) dock-
eted the charge as Case 18–CA–202617. Thereafter, the Union
filed these new or amended charges against the Respondent:
DATE CASE NUMBER CHARGE
July 28, 2017 18–CA–202617 First amended charge
August 31, 2017 18–CA–205446 Original charge
September 11, 2017 18–CA–205920 Original charge
18–CA–205927 Original charge
October 12, 2017 18–CA–207874 Original charge
November 20, 2017 18–CA–210170 Original charge
November 29, 2017 18–CA–202617 Second amended charge
18–CA–205446 First amended charge
November 30, 2017 18–CA–210936 Original charge
December 6, 2017 18–CA–211086 Original charge
December 22, 2017 18–CA–205920 First amended charge
January 23, 2018 18–CA–207874 First amended charge
March 12, 2018 18–CA–205446 Second amended charge
March 23, 2018 18–CA–210170 First amended charge
On November 8, 2017, Charging Party Philip A. McMeins
filed an original unfair labor practice charge against the Re-
spondent, which Region 18 docketed as Case 18–CA–209515.
On March 29, 2018, the General Counsel, through the Re-
gional Director of Region 18, issued an order consolidating all
of the above-listed cases, except Case 18–CA–210170, and a
consolidated complaint against the Respondent. On April 12,
2018, the Respondent filed a timely answer. On April 26, 2018,
the General Counsel issued an order consolidating Case 18–CA–
210170 with the other cases and an amended consolidated com-
plaint against the Respondent. The complaint alleges numerous
violations of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act (the Act). On May 10, 2018, the Respondent filed
a timely answer to the amended consolidated complaint, denying
1 To aid review and given the breadth of the General Counsel’s com-
plaint, I have broken down this decision into sections with related alle-
gations. Each section contains findings of fact and legal analysis. To the
extent possible, I have presented the facts in chronological order. Alt-
hough I have included citations to the record, my findings and conclu-
sions are not based solely on that evidence, but upon my review and con-
sideration of the entire record. I have placed most of those citations in
footnotes at the end of paragraphs to minimize the disruption to the
reader. In assessing credibility, I have considered the witnesses’ de-
meanors, the context of their testimony, the quality of their recollections,
the substantive allegations and asserting multiple affirmative de-
fenses. From August 14 to 17 and August 20 to 24, 2018, in
Centerville, Iowa, I conducted a trial in these cases. On October
26 and November 16, 2018, the General Counsel and the Re-
spondent filed initial and response briefs with me. On the entire
record and after considering those briefs, I make the following
findings of fact and conclusions of law.1
JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent is engaged in the manufacture and nonretail
sale of flexible and rigid packaging used for food, consumer
products, health care, and other industries from a facility located
in Centerville, Iowa. During the calendar year ending December
31, 2017, a representative period, and in the course of conducting
its business operations, the Respondent purchased and received
testimonial consistency, the presence or absence of corroboration, the
weight of the respective evidence, established or admitted facts, inherent
probabilities, and reasonable inferences that may be drawn from the rec-
ord. See Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive
Dealership Group, 321 NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed.
Appx. 516 (D.C. Cir. 2003). To the extent any testimony contradicts my
factual findings, I have not credited that testimony. Where needed, I dis-
cuss specific credibility resolutions in my findings of fact.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
goods valued in excess of $50,000 directly from suppliers lo-
cated outside the State of Iowa. Accordingly, and at all material
times, I find, as the Respondent admits, that it has been an em-
ployer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and is subject to the Board’s jurisdiction.
I also find, as the Respondent admits, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
ALLEGED UNFAIR LABOR PRACTICES
I. BACKGROUND FINDINGS OF FACT
The Respondent manufactures food and medical device pack-
aging at facilities throughout the world. In the United States, the
company has 35 to 40 facilities, about one-third of which are un-
ionized. The Respondent acquired the Centerville, Iowa plant in
the fall of 2000. The plant is part of Bemis North America, the
headquarters of which is located in Neenah, Wisconsin. In Cen-
terville, the Respondent manufactures plastic shrink bags for
wrapping meat and cheese products. The departments include
extrusion, press, and finishing. The manufacturing process be-
gins in extrusion, where operators melt resin pellets, blow them
up into a continuous bubble of film, and collapse the film into a
tube of plastic. Press department employees then print product
labels on to the plastic film. Finally, the printed film goes to
finishing, where bag machine operators run machines which
manufacture bags. Those operators also inspect bags for defects.
From October 19, 2014, to October 19, 2017, John Augustiniak
was the Centerville plant manager. Augustiniak was responsible
for the bottom-line operation and financial results of the entire
facility. Each department also has a manager who oversees the
department, as well as shift supervisors responsible for the front-
line operation of each shift. From the time it acquired the plant
until May 2016, the facility operated in the manner local man-
agement felt was appropriate for the circumstances, without any
oversight from corporate headquarters. If management felt a
policy or practice needed to be modified, it changed the policy
or practice on its own. The only requirement from corporate was
that the plant meet expectations for business results.2
On April 12, 2016, the Union filed a petition seeking a Board-
conducted election to represent certain of the Respondent’s pro-
duction and maintenance employees. Between that filing date
and the vote on May 6, 2016, Augustiniak conversed daily with
his managers to identify whether specific employees were or
were not union supporters and to determine how the vote might
go. Augustiniak also instructed his managers and supervisors to
collect union literature and bring it to him. On two occasions
just a week prior to the election, Augustiniak sent emails to his
superiors at corporate headquarters detailing his views of the un-
ion sympathies of different employees. He also reported that no
union literature was found. The email recipients included two
supervisors of Augustiniak, two corporate attorneys, and two
corporate human resources directors. One of the corporate attor-
neys was John Haberman, the Respondent’s associate general
counsel for litigation and labor/employment. One of the human
2 Tr. 2144.
3 GC Exh. 150, pp. 1–2; Tr. 2085–2099.
4 GC Exh. 150, pp. 3–5; Tr. 2099–2101.
5 All dates hereinafter are in 2017, unless otherwise specified.
resource directors was Angela Daniels. Someone within the cor-
porate group previously told Augustiniak to make such reports
to them, including providing his opinion of how specific employ-
ees would vote.3
On May 6, 2016, the Board conducted the election, which the
Union won by a count of 112 to 95. On May 13, 2016, the Board
certified the Union as the exclusive collective-bargaining repre-
sentative of production employees working in the extrusion,
press, and finishing departments, as well as employees working
in the maintenance, quality assurance, distribution, and shipping
and receiving departments.
About 8 weeks after the election on June 27, 2016, Daniels
emailed Michael Mihalakis, the extrusion department manager,
and asked him to give her anything he had seen or heard since
the election. She also asked for “lists” he had on any of his su-
pervisors. Mihalakis sent her two lists containing comments
about extrusion supervisor Ed Grenko and finishing supervisor
Mark Allgood. Mihalakis stated both supervisors were upset
with the Respondent’s management. He reported that Grenko
specifically said he was not going to tell the company anything
more about employees’ union activity. Augustiniak also re-
ceived these emails.4
On August 23, 2016, the Respondent and the Union began ne-
gotiations for an initial collective-bargaining agreement.
II. THE RESPONDENT’S MARCH 2017 LOCKER POSTING BAN AND
APRIL 2017 EVALUATION OF ELIZABETH NICHOLS
FINDINGS OF FACT
On November 7, 2016, the Respondent hired Elizabeth Nich-
ols as a treator operator in the extrusion department. Matt Bray,
the human resources manager at Centerville from July 2016 to
June 2017, interviewed Nichols for the job. Bray told her there
was a union at the plant and asked if she had any problem with
it. Nichols responded she did not. She added that she had
worked in both union and nonunion facilities and just wanted a
job. In January 2017, Nichols began attending union meetings.5
On January 19, her supervisor, Kreg Bauer, gave Nichols a 60-
day performance review. The Respondent’s evaluation form
contained seven potential ratings: Exceeds I, II, and III; Meets
I, II, III; and Needs Improvement. Exceeds III was the highest
potential rating. In “Work Relationships,” Nichols received a
rating of Exceeds I. Bauer told Nichols to keep up the good
work. On February 1, Nichols moved into an extrusion operator
trainee position. During that same month, Nichols spoke with
Augustiniak one-on-one for the first time and inquired about
contract negotiations. Augustiniak responded they were trying
to get a contract and Nichols told him that was awesome. She
added that she had worked in union facilities before and, from
what she observed, the plant would benefit, because employees
and managers would know the rules and everyone would be hap-
pier. As she said this, Augustiniak clenched his jaw, started
wringing his hands, and began rocking back and forth from heel
to toe. However, he did not say anything back to Nichols.6
6 Tr. 123–129, 139–147; GC Exh. 107. Nichols testimony concerning
her conversation with Augustiniak is uncontroverted. Augustiniak testi-
fied, but not about this conversation.
BEMIS COMPANY, INC. 13
Also, in February, Nichols began posting union newsletters
and fliers on the face of her locker at the plant. The newsletters
provided updates on contract negotiations, while the fliers con-
tained information on upcoming union meetings. Nichols’
locker was one of over 100 maintained by the Respondent for
female employees in a combined locker room and bathroom.
Both unit employees and front-line supervisors, including Jen-
nifer Schoonover and Sarah Traxler, used the bathroom, from
which portions of the locker room can be observed. Prior to
March 27, employees posted a variety of things on their lockers
for approximately 30 years. They included family pictures, com-
ics, stickers with sayings on them, and holiday decorations. At
any one time, roughly 50 percent of the lockers had postings on
them.7
In early March, someone wrote “This is bullshit” on a union
newsletter Nichols had posted on her locker. Another employee
sent a photograph of it to Nichols, who was off work. When
Nichols returned, the union newsletter had been removed from
her locker. Nichols went to see Bray, the human resources man-
ager. She showed him the photo and told him she wanted to file
a complaint. Nichols said that she did not appreciate someone
putting swear words on her personal documents. A few days
later, Nichols visited Bray again. He told her he had not done an
investigation.8
On March 27, the Respondent posted a memorandum from
Augustiniak and Bray entitled “Non-Solicitation Policy” on the
company’s bulletin board. The memorandum stated:
In order to ensure fairness and consistency when it comes to
soliciting employees while at work and to avoid disruption of
business operations, I want to remind you of Bemis’ Non –So-
licitation policy, which has been and will continue to be en-
forced as we become aware of violations.
As defined in our policy, solicitation shall include: canvassing,
soliciting, or seeking to obtain membership in or support for
any organization, requesting contributions, and posting or dis-
tributing handbills, pamphlets, petitions and the like of any
kind (“material’) on Company time, in Company work areas
or using Company resources. [Emphasis in the original.]
Please ensure all postings, pictures and personal belongings
displayed on the outside of the lockers are removed by the end
of the week. Any remaining items on the outside of the lockers
will be removed and disposed.
The Respondent’s nonsolicitation rule, maintained in an em-
ployee handbook, states:
At Bemis Company, we understand that our employees and
outside organizations have a wide range of affiliations and
causes for which they often want to share their interest and en-
thusiasm with others. In order to insure fairness and con-
sistency when it comes to soliciting our employees while at
work, and avoid disruption of business operations or disturb-
ance of employees, visitors, and customers, the following Non-
Solicitation policy will apply.
7 Tr. 107–111, 113–114, 160–164, 226–233, 744–746.
8 Tr. 164–165, 746–747.
9 GC Exhs. 16 (p. 23), 20; Tr. 1916–1917.
For purposes of this policy, “solicitation” (or “soliciting”) shall
include: canvassing, soliciting, or seeking to obtain member-
ship in or support for any organization, requesting contribu-
tions, and posting or distributing handbills, pamphlets, peti-
tions, and the like of any kind (“materials”) on Company time,
in Company work areas or using Company resources (includ-
ing without limitation bulletin boards, computers, mail, e-mail
and telecommunication systems, photocopiers and telephone
lists and databases).
“Commercial solicitation,” means peddling or otherwise sell-
ing, purchasing or offering goods and services for sale or pur-
chase, distributing advertising materials, circulars or product
samples, or engaging in any other conduct relating to any out-
side business interests or for profit or personal economic bene-
fit on Company time, in Company work areas or using Com-
pany resources.
Solicitation and commercial solicitation performed by verbal,
written, or electronic means are covered by this policy and are
prohibited. Failure to comply with this policy could lead to
disciplinary action, up to and including termination.
The Respondent maintains this rule, so employees focus on work
and are not distracted by solicitations.9
Shortly before April 9, extrusion supervisor Jonathan Page ob-
served Nichols outside of the extrusion area speaking to a new
employee, Jimmy McGaughey, who was training to be a treator
operator. At that point, Page was Nichols’ front-line supervisor.
The third time that Page observed Nichols and McGaughey con-
versing, he approached the two to find out what they were dis-
cussing. Page was concerned, because an extruder operator like
Nichols would only need to speak to a treator operator like
McGaughey that frequently if a quality issue existed. Page asked
Nichols, tongue-in-cheek, if she wanted to go back to being a
treator operator. She said no, she was just headed to the break
room. After she departed, Page asked McGaughey what was go-
ing on. McGaughey responded that he just wanted to be left
alone, come to work, do his job, and go home. When Page
pressed him for more specifics, McGaughey said that he was get-
ting pressure to be a part of the Union and go to union events,
even though he had said he was neither prounion nor antiunion.10
On April 9, Nichols received a second performance appraisal,
this time from Page. Her rating in “Working Relationships”
dropped from the prior Exceeds I to a Meets I. In the text for
that category, Page wrote: “I appreciate your desire to make im-
provements for employees; respect others’ rights to be involved
in the union as they desire.”11
When the two met regarding this appraisal, Nichols asked
Page about his comment. Page told her he observed Nichols
pushing the Union onto McGaughey. Page said he appreciated
the fact she was looking after her fellow employees and wanted
to improve their work environment, but she also needed to re-
spect other people and the fact they had the right to say no. Page
explained that it was no different than selling popcorn for a Boy
10 Tr. 1885–1887.
11 GC Exh. 108.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Scout troop: if someone said they did not want popcorn, stop
trying to sell it to them. Nichols denied pressuring McGaughey.
She told Page that she moves on when someone tells her they are
not interested in the Union and does not force anything on any-
one. However, Nichols added, she did not want anybody to miss
an opportunity to go to a union meeting and at least make an
educated decision. Page told her again that he appreciated her
trying to help other employees, but that she needed to judge
when to let something go.12
Finally, at some unidentified point in April, Nichols became a
steward. Thereafter, she frequently spoke with other employees
about the Union. Bauer or Schoonover were present for some of
these discussions. Employees also came to her to report prob-
lems and she would take them to management or a higher-level
union representative. When she became active in the Union,
Nichols began wearing union t-shirts to work every day. The
shirts included ones she made with information on when and
where upcoming union meetings would occur and who would be
there. Augustiniak observed her wearing the shirts. Nichols also
put union fliers out on the lunchroom table. The fliers contained
the schedule for and what was happening in negotiations, as well
as any other information the Union needed to get to employees.
Bauer saw her do so and Schoonover was present when Nichols
put the documents out. In May, June, and July, Nichols attended
contract negotiations. Nichols voluntarily left the Respondent’s
employ in September 2017.13
Legal Analysis
A. Does the Respondent’s Maintenance of its Nonsolicitation
Rule Violate Section 8(a)(1)?
(Complaint Paragraph 7)
The General Counsel’s complaint alleges the Respondent’s
maintenance of its nonsolicitation rule violates Section 8(a)(1).
It also alleges the Respondent violated Section 8(a)(1), (3), and
(5) by enforcing its nonsolicitation rule, when it announced to
employees on March 27 that, going forward, nothing was al-
lowed to be taped or posted on their lockers.
The Board long has recognized the principle that “[w]orking
time is for work,” and thus has permitted employers to adopt and
enforce rules prohibiting solicitation during “working time,” ab-
sent evidence that the rule was adopted for a discriminatory pur-
pose. Conagra Foods, Inc., 361 NLRB 944, 945 (2014), citing
to Peyton Packing Co., 49 NLRB 828, 843 (1943), enfd. 142
F.2d. 1009 (5th Cir. 1944), cert. denied 323 U.S. 730 (1944).
However, solicitation cannot be banned during nonworking
12 Tr. 152–158, 1887–1889. I found both Nichols and Page to be
credible witnesses based upon their reliable demeanors. In their testi-
mony concerning this conversation, their accounts of the statements
made were the same in parts and each individual also remembered spe-
cific statements the other did not. However, the testimony did not con-
tain substantive conflicts about what was said. I also credit Page’s testi-
mony that he approached McCaughey and Nichols out of concern over a
potential quality issue.
13 Tr. 129–135, 147–151.
14 However, I do not find the rule’s prohibition on “commercial so-
licitation” to be unlawful, because its definition, when reasonably inter-
preted, does not encompass Sec. 7 activity. Boeing Co., supra, slip op.
at 16; Children’s Center for Behavioral Development, 347 NLRB 35, 37
times in nonworking areas, nor can bans be extended to working
areas during nonworking time. UPS Supply Chain Solutions,
Inc., 357 NLRB 1295, 1296 (2011). In addition, rules prohibit-
ing the distribution of union literature during nonworking times
in nonworking areas are presumptively unlawful. See, e.g., Ti-
tanium Metals Corp., 340 NLRB 766, 774–775 (2003); Chro-
malloy Gas Turbine Corp., 331 NLRB 858, 858–859 (2000).
“Interference with employee circulation of protected material in
nonworking areas during off-duty periods is presumptively a vi-
olation of the Act unless the employer can affirmatively demon-
strate the restriction is necessary to protect its proper interest.”
Waste Mgmt. of Arizona, Inc., 345 NLRB 1339, 1346 (2005),
quoting Champion International Corp., 303 NLRB 102, 105
(1991). The Board’s recent decision in Boeing Co., 365 NLRB
No. 154 (2017), in which it revised the standard for evaluating
the legality of employer rules, did not alter these standards. See
UPMC Presbyterian Hospital, 366 NLRB No. 142, slip op. at 1
fn. 5 (“we note that the Board in Boeing did not disturb
longstanding precedent governing employer restrictions on so-
licitation and distribution, which already strikes a balance be-
tween employee rights and employer interests.”)
The Respondent’s nonsolicitation policy bans solicitation and
distribution “on Company time, in Company work areas, or us-
ing Company resources.” (Emphasis added.) The broad defini-
tion of solicitation encompasses union activity, because it in-
cludes “canvassing, soliciting, or seeking to obtain membership
in or support for any organization, requesting contributions, and
posting or distributing handbills, pamphlets, petitions, and the
like of any kind.” Given the rule’s use of the disjunctive, the
Respondent has banned union solicitation in work areas during
nonwork time. Moreover, banning solicitation or distribution on
“company time” is overbroad and presumptively invalid, as it
could reasonably be construed as prohibiting such conduct dur-
ing break times or periods when employees are not actually
working. Laidlaw Transit, Inc., 315 NLRB 79, 82 (1994). The
Respondent’s stated justification for the rule—allowing employ-
ees to focus on work—does not apply to the ban on activity
which occurs during nonwork time. Accordingly, the Respond-
ent’s maintenance of the nonsolicitation rule violates Section
8(a)(1).14
B. Did the Respondent’s Enforcement of its Nonsolicitation
Rule to Ban Locker Postings Violate
Section 8(a)(1), (3), and (5)?
(Complaint Paragraph 5(a))
The next question to resolve is whether the Respondent’s
(2006). “Commercial solicitation” includes “engaging in any other con-
duct . . . for . . . personal economic benefit.” The General Counsel
argues this phrase reasonably could be interpreted to encompass solici-
tation of a wage increase for all employees or support of a union in gen-
eral. I do not agree. Standing alone, the phrase “personal economic ben-
efit” suggests solicitation for an individual, not group, goal. It also has
no reasonable connection to union activity. Those conclusions become
even stronger when examining the remaining language of the rule. The
banned activities are “peddling or otherwise selling, purchasing or offer-
ing goods and services for sale or purchase” and “distributing advertising
materials, circulars or product samples.” With that context, a reasonable
interpretation of the ban is that employees are prohibited from soliciting
for their own personal commercial business.
BEMIS COMPANY, INC. 15
enforcement of its nonsolicitation policy to prohibit employees
from posting materials on their lockers was unlawful. In
Sprint/United Mgmt. Co., 326 NLRB 397, 397–399 (1998), the
Board found an employer’s enforcement of a rule which prohib-
ited the distribution of union materials in employee lockers vio-
lated Section 8(a)(1). The employer provided individual lockers
to employees to store their personal belongings. The lockers
were in a nonworking area of the employer’s facility and had
mail slots on their doors. For at least two years, employees had
deposited personal notes, private invitations, chain letters, and
Christmas cards in other employees’ lockers. However, when an
employee placed union literature in the lockers during nonwork
time, the employer announced a rule that the lockers were pro-
vided for employees’ use in connection with their work and the
employer did not permit their use for other purposes. The em-
ployer also removed and confiscated all of the union literature in
the lockers. The Board found the rule unlawful, because it re-
stricted distribution during nonwork time in nonwork areas. It
also found the confiscation of the union literature unlawful, be-
cause the employer offered no justification for doing so other
than its unlawful rule.
The Respondent’s conduct in this case is strikingly similar.
After Nichols’ union newsletter posting on her locker was de-
faced, the Respondent banned all employee postings on lockers.
To justify the ban, the Respondent relied upon its unlawful non-
solicitation rule, which bans distribution in nonwork areas on
nonwork time.15 Thus, on this basis alone, the ban on locker
postings violated Section 8(a)(1). In addition, the Respondent
enforced its nonsolicitation policy, in response to Nichols’ pro-
tected posting of the union newsletter on her locker. Prior to
then, the Respondent allowed employees to post many different
things on their lockers for three decades. The record contains no
evidence the Respondent ever previously enforced its nonsolici-
tation policy to remove locker postings. Thus, the change from
no enforcement to a wholesale ban on locker postings, which was
motivated by Nichols’ protected activity, also violated Section
8(a)(1).16 Freemont Medical Center, 357 NLRB 1899, 1902–
1904 (2011); Lincoln Center for the Performing Arts, Inc., 340
NLRB 1100, 1100 fn. 2, 1110 (2003).
C. Did the Respondent’s Evaluation of Nichols Violate Section
8(a)(1) and (3)?
(Complaint Paragraphs 5(b) and 8(a))
The General Counsel’s complaint alleges the Respondent
threatened Nichols in violation of Section 8(a)(1), based upon
Page’s written comments in her April 9 performance evaluation.
15 In its brief, the Respondent argues its locker posting ban was law-
ful, pursuant to a different rule in its employee handbook which also
banned postings. The argument misses the mark, because the Respond-
ent itself stated in its March 27 memorandum to employees that it was
banning locker postings pursuant to the nonsolicitation rule. Thus, the
legality of that rule (which contains a posting ban), not a different posting
ban, is the relevant question.
16 However, I find no merit to the General Counsel’s allegations that
the Respondent’s locker posting ban also independently violated Section
8(a)(3) and (5). An 8(a)(3) violation requires “discrimination in regard
to hire or tenure of employment or any term or condition of employment
to encourage or discourage membership in any labor organization.”
The complaint also alleges Page downgraded Nichols’ evalua-
tion due to her union and protected concerted activity, in viola-
tion of Section 8(a)(3).
An employer violates 8(a)(3) by giving an employee a less fa-
vorable performance appraisal, because the employee engaged
in protected conduct; it also violates Section 8(a)(1) by telling
the employee the less favorable appraisal was due to their pro-
tected conduct. Wayne J. Griffin Electric, Inc., 335 NLRB 1362,
1386–1387 (2001) (supervisor unlawfully gave two employees a
“0” rating in “loyalty” on appraisals, because of “badmouthing”
the employer by discussing “labor issues” and unlawfully in-
formed another employee that his lower “loyalty” rating on ap-
praisal was due to him being more loyal to the union than the
employer); Beverly Enterprises, 310 NLRB 222, 222 fn. 2 and
240 (1993) (employer violated Section 8(a)(3) and (1) when, in
downgraded performance appraisal, employer wrote the em-
ployee “has the potential to become a good employee if outside
influences are curbed,” then told the employee “outside influ-
ences” referred to her union activity).
Here, Nichols’ discussion with McGaughey about being a part
of the Union and attending Union events was protected. Ryder
Transportation Services, 341 NLRB 761 (2004), citing to Bank
of St. Louis, 191 NLRB 669, 673 (1971), enfd. 456 F.2d 1234
(8th Cir. 1972). That McGaughey was annoyed by the conver-
sation is irrelevant. The Act allows employees to engage in per-
sistent union solicitation, even when it annoys or disturbs the
employee being solicited. Ibid. In response, Page downgraded
Nichols’ rating for “Work Relationships” from “Exceeds I” to
“Meets I” and wrote in the evaluation that it was due to Nichols’
failure to “respect others’ rights to be involved in the union as
they desire.” Page’s statement objectively communicated to
Nichols that her rating was downgraded due to her protected ac-
tivity. It also communicated that, going forward, she needed to
restrict her attempts to persuade employees to support the Union.
As to the Section 8(a)(1) violation, the Respondent argues the
record evidence does not establish that Page’s statement in Nich-
ols’ appraisal impacted her or any other employees’ activities on
behalf of the Union. However, the required analysis is whether
Page’s statement objectively, not subjectively, interfered with
employees’ exercise of Section 7 rights. Aliante Casino and Ho-
tel, 364 NLRB No. 80, slip op. at 1 fn. 4 (2016), citing to Miller
Electric Pump & Plumbing, 334 NLRB 824, 824 (2001). The
impact of the statement on Nichols is immaterial. Regarding the
8(a)(3) violation, the Respondent contends no adverse action oc-
curred, because the evaluation had no bearing on Nichols’ terms
and conditions of employment. However, at the time of Nichols’
Similarly, an 8(a)(5) unilateral change violation requires a modification
to a term and condition of employment. In line with these requirements,
the cases relied upon by the General Counsel to establish these violations
involve stricter enforcement of a policy dealing with a term and condi-
tion of employment. See Shamrock Foods Co., 366 NLRB No. 107
(2018) (break schedules); Sommer Awning Co., Inc., 332 NLRB 1318,
1325 (discharge for falsifying employment applications). But the Gen-
eral Counsel concedes the Board has never found employee postings on
their lockers to be a term and condition of employment. Absent such a
holding, I decline to find the Respondent’s conduct also violated Section
8(a)(3) and (5).
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
appraisal, the Respondent’s “job postings” policy in its employee
handbook noted that, to be considered for a job transfer, change
between departments, or rehire, an employee must have had “ac-
ceptable” or “satisfactory” performance appraisals.17 Thus,
Nichols’ downgraded appraisal could have impacted her ability
to move to another job or resume employment with the Respond-
ent, plainly terms and conditions of employment.
Accordingly, Page’s statement in Nichols’ appraisal violates
Section 8(a)(1) and his downgrading of Nichols’ appraisal vio-
lates Section 8(a)(3).18
III. THE RESPONDENT’S DISCHARGES OF LINDA HESLER AND
PHILIP MCMEINS IN JULY 2017
FINDINGS OF FACT
Linda Hesler worked for the Respondent for 23 years, having
started at the Centerville plant on April 10, 1994. At all material
times, her job classification was “BM3,” or advanced bag ma-
chine operator, in the finishing department. Her job duties were
to run machines making plastic bags, inspect those bags for de-
fects, and perform simple maintenance on the machines.
A. Hesler’s Involvement with the Union
In March 2016, Hesler became aware of the Union’s organiz-
ing campaign at the facility. Shortly thereafter, she signed an
authorization card and began attending union meetings. From
the April 12, 2016 petition filing date until the May 6, 2016 elec-
tion, the Respondent held captive audience meetings with em-
ployees. Augustiniak and several corporate officials attended.
During the meetings, Hesler frequently spoke up about employ-
ees’ working conditions, including issues she and her coworkers
had with the safety shoe allowance and the advanced notice re-
quired to take vacation. She once asked a corporate official what
the future of the plant would be without a union, to which the
official responded, “You’ll have to trust us.” Hesler responded
“I’m sorry, but I trust in God, and that’s about it.”19
On April 29, 2016, Hesler received her annual performance
appraisal from finishing department manager Justin Tucker and
Hesler’s supervisor Schoonover. Citing several issues with bag
inspection, Schoonover gave Hesler a “needs improvement” rat-
ing in the “quality” criterion. When Tucker and Schoonover met
with Hesler to discuss the appraisal, they told her that three “cor-
rective actions” contributed to the quality rating.20 Hesler con-
ceded she was responsible for two of the three quality issues. As
to the third, she told them that a trainee ran her machine while
she was on break when a bag defect occurred. In past years,
Hesler had similar problems, but never received a “needs im-
provement” in quality on her appraisal. In each of her three prior
annual appraisals, Hesler received an “exceeds” rating in qual-
ity.21
17 GC Exh. 16, pp. 46–47, 52.
18 Because Page downgraded Nichols’ rating in “work relationships”
solely due to her conversation with McGaughey, I find it unnecessary to
evaluate the Section 8(a)(3) allegation under Wright Line, 251 NLRB
1083 (1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), and approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). See, e.g., Tito Contractors,
Inc., 366 NLRB No. 47, slip op. at 5–6 (2018); Neff-Perkins Co., 315
Just days before the election, Augustiniak spoke with Hesler
and reminded her to vote. He said he was pretty sure he knew
how she would vote and Hesler knew where he stood.22
Following the Union’s election win, Hesler became a steward
in July 2016. Thereafter, employees brought complaints to her
and she passed them along to either a higher-level union repre-
sentative or to a department manager. One example of this oc-
curred in September 2016, when Hesler met with Tucker and
Bray about an employee’s complaint that management told her
she had a hygiene problem. Hesler argued the issue was with
Schoonover, who had made a similar complaint about a different
employee a year earlier. Hesler also sold Union hats and t-shirts
to her coworkers.23
B. The Respondent’s Discipline of Hesler in November 2016
On November 15, 2016, the Respondent issued both a correc-
tive action and a verbal warning to Hesler. The corrective action
form cited multiple occasions that month where Hesler either
took breaks that were too long or did not accurately log the
breaks on her machine. On the form, Hesler checked the box
stating, “I agree with the Employer’s Statement” and wrote: “I
honestly forget to put in break and forget to take out of break.
I’m working on this but it will take time to get into habit.” (The
Respondent implemented a new break logging system earlier in
2016 and Hesler began using the new method a month or two
earlier.) The verbal warning stated that, on November 12, 2016,
Hesler left her machine eight minutes prior to the end of her shift.
It also stated that, on multiple occasions on November 15, man-
agement observed Hesler having extended conversations with
other employees away from her assigned work area, leaving her
machine running unattended. The employer narrative added:
A secondary issue of concern, it has been reported by another
employee that Linda made comments today that are unsubstan-
tiated and untruthful “gossip” regarding supervision and the be-
havior of another employee that is none of Linda’s concern or
business. As has been discussed multiple times, this type of
“drama” behavior has no business in the workplace and will
not be tolerated in the future. Future violations will result in
further disciplinary action, up to and including termination of
employment.
Hesler again checked the box on the form indicating she agreed
with the Respondent’s statement, but did not include any narra-
tive. The “gossip” and “drama” referred to in the warning was a
conversation Hesler and two other employees previously had on
a break. One of the employees said that Schoonover was a real
ball buster and had written up a coworker, Fred, for not following
a safety protocol. When a different employee asked who turned
NLRB 1229, 1229 fn. 2 (1994). That Page’s motive for downgrading the
rating was Nichols’ union activity is undisputed.
19 Tr. 644, 649–654.
20 Corrective actions are not discipline or a step in the Respondent’s
progressive discipline policy, but are used by supervisors to correct em-
ployee behavior. (Tr. 2080; GC Exh. 16, p. 24.)
21 Tr. 655–663; GC Exh. 101.
22 Tr. 654–655.
23 Tr. 644–648, 665–669.
BEMIS COMPANY, INC. 17
Fred in, Hesler told the group that Fred thought it was an em-
ployee named Nina.24
When Hesler met with Tucker and Schoonover to discuss this
discipline, she denied taking breaks that were too long. She said
she forgot to log back in on the machine after she got back from
break. Hesler admitted that she left work early on November 12.
Regarding her conversations with other employees away from
her machine, Hesler said she was taking her machine waste to
the warehouse and, when she walked back, coworker Becky
Cooprider stopped her and asked her how to troubleshoot a prob-
lem with Cooprider’s machine. Tucker responded that he saw
Hesler multiple times away from her machine talking to people
and Hesler denied it. Finally, Hesler asked about the “drama”
behavior comment. Tucker described Hesler’s conversation
with her coworkers and noted Nina would flip out if she discov-
ered Hesler had identified her as the employee who turned Fred
in. Hesler replied that she would tell Nina what Hesler had said
and that should squash any drama. Tucker told her to make sure
she did so.25
After the disciplinary meeting, on that very same day, Hesler
had trouble with another order. Her machine was jamming up,
resulting in some of the bags having missing print on their back-
sides. Hesler tried to troubleshoot the problem and did not pull
all of the defective bags out of the order. The next day, Novem-
ber 16, the Respondent issued Hesler a written warning. The
form stated that Hesler violated the quality accountability policy
when she packaged two cartons containing 1,575 defective bags
that had to be scrapped. Again, Hesler checked the “I agree with
Employer’s Statement” box and wrote: “I was fighting with the
machine and was not able to really look at print which is how
this happened.” When she again met with her superiors, Tucker
told Hesler troubleshooting was not her priority, inspecting bags
was. He said they could not have that defect and she needed to
spend more time watching her bags. Hesler told the two that she
disagreed with the comment in the text stating she had a “blatant
disregard for quality.” Tucker told her he called it like he saw it.
In Hesler’s April 2015 appraisal, her supervisor wrote that she
needed to increase her production “by using you(r) troubleshoot-
ing skills and getting the machine running as soon and long as
possible.”26
C. The Respondent’s Discipline of Hesler in January 2017
In December 2016, Hesler attended a meeting with eight to
ten employees. Augustiniak and his supervisor, director of man-
ufacturing Todd Appel, were present for management. Hesler
raised the topic of bullying in the finishing department. She said
that the Respondent had large turnover in that area and attributed
it to new employees not being treated well. She stated that su-
pervisors were hard on them and they were made to feel un-
wanted. She said the area needed to be more welcoming to the
new employees.27
Near the end of December 2016, between Christmas and New
Year’s days, Hesler attended a union meeting at a local hotel with
five to six other employees. The union representatives present
24 GC Exh. 102, pp. 1–2; Tr. 682.
25 Tr. 669–683; GC Exh. 102, pp. 1–2.
26 Tr. 684–686, 689; GC Exhs. 101 (p. 3), 102 (p. 3).
were: Phillip Roberts, an international representative; Andre
Johnson, who is an employee at the Respondent’s Des Moines,
Iowa plant and also serves as the local union’s president; and
Donna Zaputil, an employee at the Respondent’s Centerville
plant and the local’s vice president. The group discussed how
the Respondent was adjusting employees’ schedules to cover
overtime, because of certain workers having restricted, eight-
hour work schedules due to medical conditions. Greg Stull, one
of the employees whose schedule was going to change to cover
overtime, was part of this discussion. Hesler suggested to Stull
that he get a doctor’s note like another employee, Laura Lowe,
did. She told Stull he then could work 7 a.m. to 3 p.m. and it
would not be an issue. Lowe was one of the employees restricted
to an eight-hour schedule as a result of a medical issue.28
The next day, Stull spoke to Lowe in the Respondent’s park-
ing lot. He told her that Hesler divulged in the union meeting
the night before that Lowe was on a restricted 40-hour-per-week
schedule. Lowe then reported this to both Tucker and Bray.
Tucker called Hesler into his office and told her she had “started
a real shit storm” by saying something about Lowe’s restricted
schedule. Hesler responded that Tucker previously told her and
other employees about Lowe’s schedule and she did not think it
was a big secret. Tucker said not to worry about it, that it was
not a big deal and he was sick of “FMLA people” anyway. Bray
later told Lowe there was nothing he could do about the situation.
Thereafter, Lowe overheard employees in the break room multi-
ple times discussing how the 40-hour-a-week people did not
have to work overtime. Connie Dunham was one of the employ-
ees. Eventually, Lowe told Augustiniak she was being harassed
by Hesler, Cooprider, and Dunham. She said the three employ-
ees were talking about how they had to work overtime, because
of Lowe’s hours’ restriction. Lowe also told him the harassment
started when Hesler divulged Lowe’s schedule at the union meet-
ing.29
On January 5, the Respondent issued Hesler a final warning in
a meeting attended by Augustiniak, Bray, Tucker, Schoonover,
and Zaputil. Augustiniak read the text of the warning to Hesler,
which stated:
Linda is being issued a final warning for her continued and re-
peated behaviors in violation of the Company’s Code of Con-
duct including bullying, intimidating and harassing other em-
ployees resulting in a hostile and offensive work environment
within the Finishing department. The prohibition of such be-
haviors has been discussed via Code of Conduct training as
well as during Finishing Department meetings. Linda’s behav-
iors have been detrimental to overall departmental morale and
have contributed to excessive turnover (Including among new
hires), increased training times and diminished production.
Any future deviations from the Bemis Core Values or BNA
policies, including bullying, intimidation, harassment, retalia-
tion, failure to provide assistance when needed or similar in-
fractions will result in immediate termination.
Augustiniak told Hesler her behaviors were mean and needed to
27 Tr. 694–697.
28 Tr. 697–699.
29 Tr. 39–52, 698–700, 1482–1485.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
end. He said they had complaints from new employees about her
at several meetings. He added that recent employees left the
company because of her behaviors. Hesler asked Augustiniak
how she was supposed to change her behavior, if she did not
know what she had done wrong. Augustiniak responded that she
was to stay at her machine and stop the whispering, the staring,
the glaring, and talking about others. He told her to intently fo-
cus on her behaviors and again to stop making side conversations
indirectly towards people. He said any retaliation by Hesler
would not be tolerated and she was not to do her own investiga-
tion. Augustiniak concluded by telling Hesler not to go into the
break room and have peripheral conversations about others.
Hesler refused to sign the final warning. In addition to disciplin-
ing Hesler, the Respondent also issued nearly identical final
warnings for harassment to Cooprider and Dunham.30
D. The Respondent’s Hiring and Subsequent Employment of
Philip McMeins
In April, the Respondent hired Philip McMeins as finishing
department manager, replacing Tucker. On May 1, McMeins
began his employment. McMeins’ job duties as finishing man-
ager were to oversee production in that department. At that time,
three finishing supervisors reported to him: Allgood, Schoono-
ver, and Traxler. Shortly after McMeins started, Augustiniak
and Bray provided him with an overview of the department and
his three supervisors. Augustiniak told him his biggest challenge
was going to be Schoonover. Within his first week of employ-
ment, McMeins had a walk around with Schoonover where he
met each employee on the day shift. After meeting Hesler,
Schoonover told him that Hesler was the most challenging per-
son on the shift, that she had an attitude issue and required a lot
of attention.31
Early on in McMeins’ employment still in May, Chris Rutt
replaced Bray as human resources manager in Centerville.
McMeins, who was not familiar with unionized work environ-
ments, met with Augustiniak and Rutt and asked for some back-
ground on the Union. Augustiniak told him that it was a very
close vote and he was aware of a decertification effort that was
going on in the plant at that time. After the meeting, Rutt told
McMeins that decertification was not something management
should be involved in or mention to anyone.32
After he began his employment, McMeins also started attend-
ing the Respondent’s daily management meeting. At the start of
each meeting, all managers and supervisors were present, but
30 Tr. 700–704, 1065–1068, 1083–1087; GC Exhs. 102 (p. 4), 104,
113–114. Prior to this discipline, Cooprider and Dunham wore union t-
shirts to work once or twice a week. (Tr. 1062–1063, 1082–1083.)
31 Tr. 449–452, 454–455, 461–462, 465–466; GC Exh. 109. Alt-
hough Augustiniak and two other supervisors testified that McMeins’ job
interviews raised some red flags about him, I do not credit this conclu-
sory testimony, which appeared exaggerated. Tr. 1928–1931, 1947–
1949, 2033–2036.
32 Tr. 489–490. At the hearing, Augustiniak conceded that he had
conversations with an employee, Wayne Devour, about decertification.
Devour later filed a decertification petition with the Board on October
31. (Tr. 2102–2103; GC Exh. 31.)
33 I credit McMeins’ testimony concerning what Augustiniak did and
said in these daily meetings, including the comment about the Respond-
ent’s wage proposal. (Tr. 478–489, 491.) Overall, I found McMeins to
eventually supervisors were excused, leaving just the managers.
The purpose of the meeting was to discuss the plant’s production
by department in the prior 24 hours. During these meetings,
McMeins deferred to his finishing supervisors to address any is-
sues that arose. He also spent much of the meetings on his cell
phone. In addition to plant production, Augustiniak told his
managers and supervisors about any scheduled collective-bar-
gaining negotiations with the Union. Once the supervisors left
the meetings, Augustiniak provided more detailed information
about the negotiations, including written proposals. The group
also reviewed union fliers collected in the plant and then dis-
carded them. Finally, Augustiniak asked the managers each day
to report any union discussions they heard on the floor. This
included what the Union said to employees about the negotia-
tions, compared to what the Respondent was telling them. In one
of these meetings, Augustiniak told the managers that the Re-
spondent was going to present a proposal to the Union that would
result in lower wages for unit employees, so they would see the
negative value of being in the Union. In a different meeting,
Augustiniak informed the managers that decertification was in
progress.33
In mid-May 2017, McMeins introduced himself to Dunham
and the two spoke. Dunham told him about how she previously
had been accused of harassing other employees. She asked him
if he would do investigations of employees based on assumptions
or if he actually was going to approach the employees for their
sides of the story. McMeins told her he wanted the facts of a
situation before he proceeded. McMeins then spoke to Augus-
tiniak and Rutt about the conversation. Augustiniak told
McMeins that he had employees, including Hesler and Dunham,
who were harassing new hires. McMeins asked him if he got the
employees’ sides of the story, because one of them had ap-
proached him and did not feel that Augustiniak did. Augustiniak
responded that he did not need their side of the story, because he
already had enough information from their investigation to issue
discipline.34
In mid to late May 2017, Augustiniak questioned McMeins
and Allgood regarding why a new employee, Tyler, was being
trained by another employee named Mae. Allgood told Augus-
tiniak that the two employees who normally trained were out, so
he assigned Mae to Tyler. Augustiniak responded that he did not
want new employees training with Mae and Allgood needed to
pick someone else. Augustiniak told him Mae was a strong
be a credible witness with a trustworthy, frank demeanor. However, I
credit the testimony of Augustiniak and multiple supervisors, over
McMeins’ denial, that McMeins often was on his cell phone during these
meetings. (Tr. 1858, 1933, 1951, 2042.) I do not credit Augustiniak’s
testimony that he discussed with McMeins his lack of participation and
his cell phone use in the meetings. The testimony was nonspecific and
speculative. (Tr. 2043–2044.) Finally, although I find that McMeins
deferred to his supervisors to discuss production issues, I reject the Re-
spondent’s suggestion that this practice was problematic. Augustiniak
testified that he typically wanted the front-line supervisors to address is-
sues, since they saw what was going on day-to-day, and that managers
like McMeins were there for support for bigger issues that needed to be
discussed. (Tr. 2041.)
34 Tr. 473–477.
BEMIS COMPANY, INC. 19
union supporter and he did not want her to talk new employees
into supporting the Union. Thereafter, Allgood assigned a new
trainer to Tyler. The next day, McMeins asked Schoonover who
trained for her on the first shift. After identifying the employees,
Schoonover told McMeins that Hesler, Dunham, and an em-
ployee named Virginia Exline were not allowed to train.35
At a June 15 meeting attended by 30 to 35 employees, Augus-
tiniak said the finishing department had serious issues. Hesler
replied that extrusion was allowed a certain number of errors
(resin spots per million), but finishing was not. She added that
the finishing operators had to pull bags with those errors out,
which slowed them down. Augustiniak said the Respondent was
trying to fix that issue, but also that “you finishing area people
just have way too many issues to go into now.” Hesler then
asked about moving the July 4th holiday from Tuesday to Mon-
day. Augustiniak said he would look into it. When the discus-
sion turned to the Respondent’s funding of the employees’ activ-
ity association, Hesler said that the association had not had any
activities for years. She also asked if the Respondent or the as-
sociation was responsible for funding safety days, where em-
ployees and their families could meet with police officers and
firefighters. Augustiniak responded it was not his job to enter-
tain Hesler.36
At some point prior to the 3rd week of June 2017, Schoonover
met with Lowe, who then was working as a support operator in
finishing. Schoonover told Lowe to keep track of how often
Hesler went to the bathroom and report the number back to
Schoonover. She said she wanted that information, because she
did not like Hesler, wanted her out of there, and was looking for
a way to get Hesler fired. Lowe reported back to Schoonover on
Hesler’s bathroom breaks about six or seven times. Schoonover
also used Lowe to track how often Hesler was away from her
machine visiting other employees, as well as Hesler’s work qual-
ity.37
On June 23 during the daily management meeting, Augustin-
iak discussed with the group how certain extrusion department
employees were being transferred to the finishing department to
conduct bag testing. Nichols was one of the employees coming
over to finishing, set to work the third shift from 11 p.m. to 7
a.m. Augustiniak asked McMeins to work that shift too, on the
first night after Nichols was transferred. The regular shift super-
visor was going to be absent that night, meaning the shift other-
wise would have no supervision. Mihalakis, the extrusion man-
ager, told McMeins that Nichols was the extrusion department’s
“Union billboard” and was going to be a problem. He added that,
when Nichols introduced herself to people, she would say “hello
my union brother” or “hello my union sister.” Augustiniak told
McMeins that he should observe Nichols and make sure she did
not visit other employees outside of her work area and try to
35 Tr. 455–459, 463–465.
36 Tr. 709–713.
37 Tr. 52–58, 71–73. Lowe’s testimony in this regard is uncontro-
verted, as Schoonover did not testify at the hearing. The timing of these
reports is unclear from her testimony, but occurred when Lowe worked
as a support operator beginning in March. I find the reports must have
occurred before June 23 because, as will be discussed, Schoonover rec-
ommended disciplining Hesler, in part for taking excessive bathroom
breaks and visiting with other employees, on June 23.
persuade them into supporting the Union or engaging in union
activities. Augustiniak also asked McMeins to report to him the
next morning if Nichols left her work area during the shift.
McMeins agreed to work that night shift and did so. He watched
Nichols as she worked and spoke to her at one point. He did not
observe anything unusual. McMeins reported to Augustiniak the
next morning that nothing happened.38
E. The Respondent’s June 30 Final Warning to Hesler
Also, on June 23, Schoonover sent Augustiniak and McMeins
an email with a proposed final warning for Hesler. Schoonover
listed a variety of alleged problems. First, she stated that 43 de-
fective bags, hole punch scrap, and thin trim waste had been dis-
covered in a carton run by Hesler on June 9. Second, Schoono-
ver stated that a customer complaint recently had been received
regarding a bag order with missing print, for which Hesler like-
wise was responsible. Third, Schoonover stated that, during her
shift on June 21, another employee reported that Hesler went to
the bathroom 16 times. Fourth, Schoonover stated generally that
Hesler had been walking away from her machine and visiting
other operators. Fifth, Schoonover wrote that Hesler’s crew bag
per hour rate was 2,728. Schoonover stated that Hesler needed
to do a better job of staying at her machine and inspecting her
bags. Finally, Schoonover noted that Hesler repeatedly logged
off her machine early.
Shortly thereafter, McMeins met with Augustiniak and Rutt
about the proposed discipline of Hesler. McMeins told the two
he did not think the discipline was warranted. McMeins stated
he had investigated when other employees were logging off their
machines and found that over 80 percent of the staff in his de-
partment did the same thing as Hesler. He said it was a depart-
ment-wide problem requiring training, not discipline. McMeins
also stated the excessive bathroom breaks comment was subjec-
tive. McMeins told them he spoke to Hesler’s machine partner,
Rod, who told McMeins that her bathroom breaks were not an
issue and were not outside the norm in the department. Rutt
agreed with McMeins that discipline was not warranted on the
bathroom issue. Augustiniak asked McMeins why he was pro-
tecting Hesler. McMeins responded that he was not protecting
anyone; he was just looking at the facts of the situation. Augus-
tiniak then told McMeins “protecting Linda Hesler could jeop-
ardize your standing at Centerville.” Augustiniak stated that he
wanted to move forward with the discipline. He said he was
more focused on Hesler walking away from her machine and her
history of poor performance. He told McMeins that, once an
employee gets into the corrective action system, it was hard for
them to get out of it. Augustiniak told McMeins he did not
38 I credit McMeins’ uncontroverted testimony concerning the meet-
ing discussion. (Tr. 536–544, 581–583.) Although they testified, neither
Augustiniak nor Mihalakis addressed this conversation. In addition, alt-
hough Augustiniak stated he told McMeins at some point that he wanted
McMeins to work other shifts and get to know the employees on them,
nothing in the meeting conversation about Nichols suggests Augustiniak
was asking McMeins to work the night shift just to get to know her. Fi-
nally, I note a transcript error at p. 540, ln 21, where the pronoun should
be “she,” not “he.”
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
believe Hesler would be working for the company within the
year.39
During the same meeting, Augustiniak mentioned that Hesler
had been disrespectful to an employee named Fred and he
wanted McMeins and Rutt to investigate it. After the meeting,
the two went to speak to Fred. He told them he and Hesler dis-
cussed how overtime was no longer available and Fred said to
her that he had farm work and was not interested in it anyway.
Fred told them, following his discussion with Hesler, Schoono-
ver repeatedly asked Fred if Hesler had been disrespectful to
him. Fred told Schoonover he did not see it that way. When
McMeins and Rutt finished their conversation with Fred,
McMeins told Rutt he thought Schoonover was targeting Hesler.
Rutt responded that he believed what McMeins said was true,
but additional investigation would have to be conducted for him
to come to that conclusion. The two went back to Augustiniak
and reported what Fred said.40
On June 28, the Respondent’s corporate team came in from
Wisconsin to visit the Centerville plant. The visitors include Ap-
pel, the vice president of manufacturing, and Fred Stephan, the
president of Bemis North America. A town hall meeting with
the corporate representatives and a limited number of employees
was scheduled for that day. About a week prior to the town hall,
Augustiniak asked his department managers for lists of a few
names of employees who they thought should attend the meet-
ing. In a subsequent management meeting, Augustiniak and Rutt
discussed the names on the lists. Augustiniak based his decision
on who should attend based upon his view of employees’ union
sentiments. Augustiniak sought to insure the town hall had an
equal number of pro and antiunion employees in attendance. Au-
gustiniak had similar discussions about employee attendees for
prior town hall meetings held after the Union’s election win.41
Following the corporate representatives’ arrival on June 28,
they met with the entire Centerville senior management team,
prior to the town hall. The meeting attendees reviewed a Pow-
erPoint presentation concerning the plant’s finances and the
trends in the different departments. As to the finishing depart-
ment led by McMeins, a corporate official commented that the
department looked like it was heading in the right direction, ef-
ficiencies were improving, and scrap was decreasing. A differ-
ent corporate official stated that, when she was out on the floor
in the finishing area, it seemed like the overall attitude in the de-
partment was better than the last time she was there, and she was
starting to see sustained improvement. Stephan said it appeared
to be a good decision that they brought McMeins onboard, to
which Appel responded by patting McMeins on the back.42
On June 30, McMeins and Schoonover issued Hesler the final
warning which Schoonover recommended. The warning con-
tained all of the issues previously identified by Schoonover,
39 Tr. 511–521, 1250–1251.
40 Tr. 522–526.
41 Tr. 495–500.
42 Tr. 491–495.
43 Tr. 527–531, 714–721; GC Exh. 102, p. 5. I credit Hesler’s testi-
mony that it was not atypical for her or other employees to converse with
coworkers away from their machines. (Tr. 676–678.) Lowe and em-
ployee Tammy Clark corroborated that testimony, saying they often left
their running machines to talk to coworkers and no supervisor ever told
except the one regarding Hesler logging out early. When the
three met to discuss the warning, Hesler disclosed that her bath-
room visits were due to a medical condition. McMeins told her
to get a doctor’s note and it would not be an issue. Regarding
the bag defects, Hesler said that she asked another employee to
go through and check the bags. Schoonover responded that was
not what the other employee told her. She added that Hesler
needed to watch her bags and her quality more, as well as stop
wandering away from her machine and talking to people.
McMeins told Hesler the concerning thing in the discipline was
the quality defects and walking away from her machine. Hesler
responded that other people did that too, including people who
went into Schoonover’s office to talk, and nothing was done
about it. A few hours after the meeting, McMeins spoke to Hes-
ler at her machine. McMeins told her he was not happy with the
discipline and felt she was being singled out. Hesler said she
understood certain parts of the document and asked him if he
agreed with the entire thing. McMeins responded he did not
agree with the discipline beginning to end, but when the individ-
ual in authority decided to go forward with the discipline, he had
to stand by it and this was one of those cases.43
Subsequent to the discipline being issued, Hesler obtained a
doctor’s note, dated July 3, confirming that her frequent bath-
room trips were due to medical reasons. She gave the note to
Rutt and the Respondent crossed off the comment in the warning
about the bathroom issue. On that same date, Hesler posted on
the Union’s Facebook page that “[i]t’s a sad day when you have
to get a note from your doctor to use the restroom.” Her
coworker, Mark Stogdill, commented in response to Hesler’s
post that “[e]veryone in the plant should get one!” During a man-
agers’ meeting held by the Respondent thereafter which
McMeins attended, a manager asked if anyone had seen Hesler’s
Facebook post regarding her bathroom discipline. He noted it
was on the Union’s Facebook page. Augustiniak responded that
he had seen it and the facts as Hesler was portraying them were
not accurate. During this same time period, Lowe was speaking
with other employees about how a new medication she was tak-
ing was causing her to go to the bathroom six to seven times each
work day. Hesler commented that Lowe would have to get a
doctor’s note like Hesler did. Lowe asked Schoonover if that
was the case and Schoonover told her not to worry about it.44
F. The Respondent Terminates McMeins and Hesler
Prior to the July 4th holiday, McMeins went on a business trip
with finishing supervisor Sarah Traxler to a different Bemis plant
in Pauls Valley, Oklahoma. The two travelled by car together
for several hours to get there, which McMeins and Traxler both
found uncomfortable. During the ride, conversation was mini-
mal and McMeins often spent time on his cell phone. After
them not to do so. (Tr. 56, 71–73, 2276.) Moreover, Rutt conceded that
the Respondent did not prohibit employees from leaving their machines
when they were working, except for “common sense.” (Tr. 1249.) The
first time the Respondent cited this as a problem to Hesler was in the
verbal warning it gave her on November 15, 2016. In her performance
appraisals the four prior years, the text repeatedly mentioned the need for
Hesler to increase productivity, but none of them stated she should stop
walking away from her machine. (GC Exh. 15.)
44 Tr. 58–62, 559–562; GC Exhs. 105, 106.
BEMIS COMPANY, INC. 21
arriving at the hotel where they were staying, the hotel clerk
asked McMeins if it was okay if he and Traxler had rooms on
separate floors. McMeins responded “Oh fantastic. That’s
great,” which embarrassed Traxler. That night, McMeins did not
invite Traxler to go to dinner with him. During the subsequent
plant tour, the Oklahoma plant manager, Luis Bogran, invited
Traxler to a meeting, but McMeins told her not to go. When
Bogran and McMeins later had dinner, Bogran asked him how
contract negotiations were going. McMeins said he was not
heavily involved in it, but asked Bogran for advice since
McMeins had never worked at a union facility before. Bogran
told him to follow the union contract to a T, whether it benefitted
him or not. After returning to Centerville, McMeins told Augus-
tiniak about Bogran’s comment. Augustiniak responded that
McMeins had a lot to learn and Bogran’s suggestion was “not
the direction that he was interested in taking.” Traxler likewise
reported what occurred in Oklahoma to Augustiniak, Rutt, and
Schoonover.45
On July 12, Hesler was running “Machine 75,” one of the most
complex machines to operate in the finishing department. Only
two advance bag machine operators, including Hesler, could run
it. For this order, Hesler was required to inspect 100 percent of
the bags being manufactured. Tammy Clark was working as a
support operator during Hesler’s shift and was right across from
Machine 75. Clark observed Hesler speaking to the operator
next to her with her back to the machine while it was running.
When Hesler returned to the machine, she put the lid on a full
carton of bags without inspecting the bags and sent the carton
down the line to the shipping department. Because Machine 75
had been on 100-percent bag inspection for several days, Clark
decided to look into Hesler’s carton and inspect the bags. She
found 186 bags with creases on them, most of them large ones.
Clark took the defective bags to Schoonover, who then went to
McMeins’ office with a sample of them and told him they were
from Hesler. Schoonover said she obviously wanted to disci-
pline Hesler for the defective bags. McMeins told her he would
have to investigate it and discuss it with the management team,
before giving Schoonover direction on how she was to proceed.
McMeins met with Rutt and discussed the situation. They agreed
to bring potential discipline to Augustiniak for approval, but not
identify Hesler as the employee involved.46
On July 13 when Hesler reported to work, she observed an-
other employee going through cartons from the prior day and
pulling out bags. The employee said to Hesler that Schoonover
told her to pull out any bags with creases on them. Nine cartons
were near the employee who was inspecting Hesler’s bags, but
only one of the nine was Hesler’s responsibility. Two other em-
ployees, Kay Glosser and Carla Egbert, ran the remaining bags
for the same 100-percent inspection order. At the daily manage-
ment meeting that same day, Augustiniak said there was a quality
issue in the finishing area that he was aware of and McMeins and
45 Tr. 506–510, 583–588, 1859–1866.
46 Tr. 544–547, 731, 2271–2275.
47 Tr. 547–549, 732–736.
48 Tr. 549–553.
49 Where it conflicts with Augustiniak’s account, I credit McMeins’
testimony about the discussion in this meeting. (Tr. 553–559.) Overall,
Rutt needed to investigate it immediately. Augustiniak made the
comment, even though McMeins and Rutt had not yet advised
him of the situation. Thus, McMeins concluded Schoonover had
told Augustiniak what happened.47
McMeins began an investigation. He went to the shop floor
and saw six or seven cartons from the lot that Hesler ran. He
attempted to obtain documentation showing how much defective
product had been manufactured during the time Hesler was op-
erating the machine. However, the Respondent did not have an-
ything showing the “defect rate,” or percentage of bags out of the
total that were defective. Instead, Traxler gave him a sticky note
saying that carton 5 contained 160 plus bad bags. McMeins con-
sidered manually computing a defect rate, but was unable to do
so because all of the defective bags had not yet been pulled out
of the cartons.48
McMeins met with Augustiniak and Rutt to convey that he
could not determine the defect rate. Augustiniak told him he was
not interested in the defect rate, because Hesler had a history of
walking away from her machine and having a bad attitude. He
added that she was a bad apple in the department. McMeins re-
sponded that he needed some guidance on what an appropriate,
quantitative defect rate was, not necessarily for Hesler’s situation
but going forward. Augustiniak’s face became red. He crossed
his arms and again told McMeins he was protecting Hesler.
McMeins stated he could not make a conclusive decision on
whether discipline was warranted until he knew all the facts, in-
cluding the total amount of defective product. Augustiniak said
he wanted to proceed with Hesler’s discharge. He asked
McMeins if McMeins agreed with the decision. McMeins re-
sponded that he was not in a position to do so with the facts he
had at that time. Augustiniak told him that Hesler had a history
of walking away from the machine and, based on the investiga-
tion Rutt had done speaking with other employees, Hesler had
walked away from her machine this time as well. McMeins told
him he was not aware of any investigation Rutt had done. Au-
gustiniak then asked him if he would agree with the termination,
if Rutt’s investigation showed Hesler walked away from her ma-
chine and she had a history of poor performance. McMeins said
yes.49
On July 20, Rutt met with Zaputil, the local union’s vice pres-
ident, and told her the Respondent was going to move forward
with Hesler’s discharge, because of her trend of bad behavior.
Zaputil told Rutt the Union wanted to bargain over it. She also
said that Hesler was a good employee, was one of only two peo-
ple who could operate Machine 75 and had trained new employ-
ees for years. Zaputil asked Rutt if she could see the packet for
the order on which Hesler produced defective bags. She also
asked to go back to the bag reworking area, where defective
product is removed from cartons before shipping. The packet
and the rework area visit would have allowed Zaputil to deter-
mine if other operators ran the machine on the same order as
I found Augustiniak to be an unreliable witness. His responses often
were limited, vague, and conclusory. Those characteristics were present
in his testimony concerning this meeting. (Tr. 2060–2062.) Rutt testi-
fied, but not about this meeting. Rutt also had very limited recall of the
material events in this case.
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hesler, as well as if they were written up for running their own
defective product. Rutt refused both requests. Zaputil asked
Rutt to look in the computer to see if any other finishing depart-
ment employees had been written up in June or July. Rutt did so
and Zaputil observed that Hesler was the only employee who had
been written up in that timeframe. In the same meeting, Rutt
informed Zaputil that a supervisor saw employee Cory Lewis
with a cell phone in the plant and wanted Lewis discharged.
Zaputil asked Rutt why the supervisor had waited two days to
report Lewis’ alleged policy violation. Rutt told her to discuss it
with the supervisor.50
On July 21, the very next day, Augustiniak informed
McMeins that his employment was terminated. Augustiniak said
it was due to his lack of communication to the team and his lead-
ership style. McMeins asked for specific examples. Augustiniak
responded they would be in a document Rutt would provide to
him. Augustiniak also told McMeins that he was getting in the
way of employee communication directly with Augustiniak.
McMeins said that he needed to know about issues on the floor
in order to address them. In a letter dated the same day, Rutt
wrote to McMeins that “[i]mmediately, we are notifying you of
your termination of employment with Bemis Centerville.” Rutt
did not provide any explanation for the decision. After he was
discharged, McMeins sent an email to Appel, the corporate offi-
cial who recently had visited Centerville and commended
McMeins’ performance. He expressed surprise at his discharge
and the lack of clarity regarding the reasons for it. McMeins also
acknowledged regret for not having followed advice Bray had
given him when he started, when Bray told McMeins to meet
with Augustiniak every week to insure their thoughts were
aligned.51
On July 24, Rutt advised the two local union representatives,
Johnson and Zaputil, that the Respondent intended to terminate
Hesler for performance issues. Rutt met with Zaputil in Center-
ville, while Johnson participated by phone from Des Moines.
Rutt told them that Hesler did not catch a problem while running
her machine and had prior performance issues. At the represent-
atives’ request, Rutt reviewed Hesler’s entire disciplinary record.
They included a corrective action that was over a year old, which
the representatives contended should have dropped off pursuant
to the Respondent’s progressive discipline policy in its employee
handbook. They also included the January 5 final warning for
bullying and gossiping, as well as the June 30 final warning with
the comment about Hesler taking excessive bathroom breaks.
But Rutt stated he did not agree with the discipline for
50 Tr. 261–267; GC Exh. 12, p. 5. In August 2016, Bray and Zaputil
began meeting on a regular basis, in order for Bray to provided Zaputil
with discipline the Respondent intended to issue to employees. These
meetings arose out of an agreement between the Respondent and the Un-
ion in contract negotiations. When Rutt took over, the meetings became
more consistent and occurred weekly. Zaputil often asked Rutt for proof
to justify discipline and, once the proof was provided, the representatives
would discuss the validity of the discipline. (Tr. 382–394.)
51 Tr. 563–569, GC Exh. 112; R. Exh. 2. I do not credit Augustiniak’s
testimony concerning his reasons for discharging McMeins, which in-
cluded alleged issues with communication and a lack of engagement in
his job duties. (Tr. 2046–2051.) The testimony contained a surprising
lack of specificity and was not corroborated by any contemporaneous
harassment and gossiping, or with her being disciplined for ex-
cessive bathroom breaks. Johnson asked Rutt how he could pro-
ceed with Hesler’s termination, if he did not agree with all of the
discipline. Rutt responded that Hesler had a trend of bad behav-
ior. Johnson told Rutt that Hesler was working on the hardest
machine in the plant and was not being put in a position to suc-
ceed. He asked Rutt why the Respondent would put her on that
machine, if it actually thought she was such a problem employee.
Johnson also said Hesler’s work life was causing her stress and
leading to mistakes on the job. He asked if the Respondent had
tried to help Hesler with the stress. Johnson also inquired as to
whether other operators who ran the same machine and manu-
factured bad product were disciplined. Rutt told him other em-
ployees were counseled, but through corrective actions, not dis-
cipline, because they did not have any prior offenses. In the same
meeting, Johnson and Zaputil again raised the issue of Lewis’
discharge for violating the Respondent’s cell-phone policy. The
union representatives repeated their concern that the discipline
was issued a full two days after the alleged incident.52
On July 27, the Respondent informed Hesler she was sus-
pended pending termination, because the Union wanted to bar-
gain over it.53
On July 28, Rutt, Johnson, and Zaputil met again concerning
Hesler. Rutt stated the Respondent was going through with Hes-
ler’s discharge because of a trend of bad behavior, including
walking away from her machine. Johnson proposed to Rutt that
Hesler be put on a last-chance agreement or some lesser form of
discipline. Rutt told him no. The group also discussed the dis-
cipline Hesler received for taking excessive breaks. Johnson told
Rutt the logging in and out procedure was a new policy and Hes-
ler was not the only employee to have trouble remembering to
log in after breaks. Johnson then asked Rutt for a copy of Hes-
ler’s punch ins and outs from breaks. Finally, Johnson and
Zaputil told Rutt that Augustiniak and Schoonover were target-
ing union supporters and noted Schoonover was responsible for
90 percent of Hesler’s write-ups. Rutt responded that he did not
believe it. Rutt said it was a serious allegation and he would have
to move that up to an investigation with his superiors. Nonethe-
less, Rutt told him he was going to continue with Hesler’s termi-
nation. Rutt subsequently told Dees about Johnson’s accusation,
but never got back to the Union with a further response.54
That same day, Hesler went back to the facility with Zaputil.
The two met with Rutt, who gave her a letter stating she was
being discharged for job performance. The Respondent’s final
write-up55 upon which the discharge was based stated:
documentation showing McMeins’ alleged performance problems or
communication from Augustiniak about the problems. He provided no
clarity as to why he made the decision at that time or what process and
discussions he had with other managers to arrive at it. The record evi-
dence does suggest that Augustiniak and McMeins disagreed concerning
whether front-line supervisors could bring problems to Augustiniak
without first speaking to McMeins. (Tr. 2044–2047.) However, and as
discussed more fully below, I conclude that Augustiniak did not dis-
charge McMeins because of this issue.
52 Tr. 268–272, 410–413, 1255–1256, 1602–1603, 1615–1618.
53 Tr. 739–740.
54 Tr. 272–282, 413–414, 1618–1620; GC Exh. 12, p. 7.
55 GC Exh. 12, p. 6.
BEMIS COMPANY, INC. 23
Linda was scheduled to run machine #75 on 7/12/17, Order
#2611998, The [assistant foreman] was running the shift and
knew the film was full of crease misprint. The AF saw Linda
walk away and talk to her neighbor. She left the machine run-
ning, while she was off talking. The AF tagged the cartons that
had been ran for inspection. While Inspecting the cartons
Linda ran, carton # 4 contained over 180 bad bags for creases
and crease misprint. Linda was just issued a final warning for
quality on 6/30/17. This quality issue puts Linda at termination
of employment.
The write up also sets forth the following prior warnings relied upon for discharging her:
Date of warning Step Stated Reason (from prior disciplinary form)
11/15/16 Corrective Action56 Violation of break times
11/15/16 Verbal Leaving shift early, allowing machine to run unattended while
conversing with other EEs outside of her assigned work area, and
gossiping regarding supervision and the behavior of another em-
ployee.
11/16/16 Written Defective product, 1,575 bags packaged and staged to be sent to
customer with a highly visible defect
6/30/17 Final Warning Defective product (43 bags); customer complaint from Grande
Cheese for missing print; walking away from her machine to visit
other operators; bag rate per hour of 2,728 and need to remain at her
machine and inspecting her bags.
7/21/17 Discharge Defective product (180 bags); observed by another EE away from
her machine.
G. The Respondent’s Progressive Discipline Process and
Discipline History
The Respondent’s employee handbook details a progressive
discipline system with four steps.57 They are: (1) verbal warning
(in writing); (2) written warning with a suspension of up to 5
days depending on the offense; (3) final warning with a suspen-
sion of up to 10 days depending on the offense; and (4) dis-
charge. The policy states that, after an employee goes 12 months
without an offense, the employee’s record shall be considered
clean. The policy also states the Respondent “generally” will use
progressive discipline for discipline, but “reserves the right to
repeat or bypass any disciplinary step.”
The Respondent’s rate of issuing discipline to employees
other than Hesler significantly increased following the Union’s
election win. In the 16-month period from January 1, 2015, to
May 6, 2016, the Respondent issued 12 verbal warnings, two
written warnings, and one final warning. It did not discharge any
employees. Most issues were handled with corrective actions,
175 total. In the 15-month period from May 7, 2016, through
Hesler’s discharge on July 28, 2017, the Respondent issued 51
verbal warnings, 20 written warnings, nine final warnings, and
discharged four employees. It only issued 91 corrective actions
in the same time period.58
The four other discharged employees were Ben Cullers, Cory
56 Although corrective actions are not discipline, the Respondent was
inconsistent in its treatment of corrective actions at Centerville prior to
Hesler’s discharge, including by including her corrective action as part
of its justification for her termination. (Tr. 1155–1156, 2079–2080.)
57 GC Exh. 16, p. 24.
58 GC Exh 15; Tr. 1842. These numbers are derived from a table the
Respondent submitted during the General Counsel’s investigation of the
underlying charges in this case. The table shows all discipline and
Lewis, Russell Roadenizer, and Dustin Williams. Cullers re-
ceived a verbal warning on September 21, 2016; a written warn-
ing on October 7, 2016; and was discharged on October 19,
2016. The Respondent did not issue him a final warning. Cory
Lewis received a verbal warning on September 7, 2016; another
verbal warning on October 16, 2016; a written warning on Janu-
ary 25, 2017; a final warning on July 7, 2017; and was discharged
on July 12, 2017. Roadenizer received a verbal warning on June
2, 2017; a written warning on June 20, 2017; a final warning on
July 19, 2017; and was discharged on July 21, 2017. Williams
received two written warnings on March 14, 2017; a final warn-
ing on April 11, 2017; and was discharged on June 19, 2017.
Thus, the Respondent followed the four progressive discipline
steps in only one of the four discharges. It also repeated a step
for Cory Lewis.59
During this same timeframe, the Respondent repeated steps
and declined to discharge certain employees who were eligible
under its policy. Press department employee Puteh Siregar re-
ceived: a verbal warning on September 3, 2015; a final warning
on March 25, 2016; a written warning on June 9, 2016; and an-
other final warning on July 28, 2016. In 2016, finishing depart-
ment employee Greg Stull received: a written warning on June
27; a verbal warning on November 1; a final warning on Novem-
ber 21; but then received a last chance agreement, as Johnson
requested for Hesler, on December 14.60
discharges issued during the stated timeframes, with short explanations
for why they were issued. Neither party elicited any testimony about
the document, so the available information is limited.
59 GC Exh. 15, pp. 4, 9–11. As to Williams, the Respondent’s table
does not show that it issued him a verbal warning, the first step in pro-
gressive discipline, in the year prior to discharging him.
60 GC Exh. 15, pp. 3, 7. The discipline table contains numerous ad-
ditional entries where the Respondent issued corrective actions to
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
H. The Union’s Information Request Regarding Hesler
In an August 8 email, Johnson sent Rutt a “request to bargain
and for information.”61 Johnson stated he wanted to bargain over
the last four terminations, which included Hesler and Lewis. As
to her discharge, Johnson requested: a list of all operators who
worked on the order for which the Respondent terminated Hes-
ler; a list of all work orders containing defects and the action
taken; and records of all employees logging in and out at the start
and end of shifts, as well as for breaks, for the past year. With
respect to Lewis’ termination, Johnson asked for all write-ups
for violations of the cell-phone policy for the past year.
On August 9, Rutt responded to Johnson’s bargaining request.
Rutt stated that the Respondent was confused by the request, be-
cause the company already has “met with and bargained with the
union to impasse” involving the individuals whose discipline
was discretionary. Rutt cited to the Board’s decision in Total
Security Management Illinois 1, 364 NLRB No. 106 (2016).
Rutt went on to describe the parties’ meetings concerning the last
four terminated employees. For Hesler, Rutt stated the Respond-
ent met with the Union three times before moving forward with
Hesler’s discharge. Rutt also stated: “The Company informed
the union that two other employees had received corrective ac-
tion for similar issues explaining CA’s were provided based on
neither of those employees having any disciplinary actions
within the past 12 months.” Rutt concluded the letter by stating
he was gathering the requested information and would forward
it to Johnson by the end of the next week.
On August 10, Johnson responded via letter.62 He told Rutt
the Union did not believe the Respondent met its Total Security
bargaining obligations. Johnson stated that, although the Re-
spondent provided notice to the Union prior to terminating the
employees, the Union requested information for three out of the
four employees. Johnson did not identify the employees to
whom he was referring. Johnson went on to say the Respondent
had responded to some, but not all, of the requests, again without
identifying the specific requests to which he was referring. John-
son also denied the parties had ever bargained, let alone reached
impasse, on any of the discharges. Johnson then asserted the Re-
spondent had a continuing obligation to bargain over the dis-
charges, even after imposing them. Johnson requested dates for
bargaining, after the date that the Respondent provided the infor-
mation requested by the Union.
Rutt responded via an undated letter. He asserted that John-
son’s description of the Respondent’s failure to bargain or re-
spond to information requests did not match what Rutt remem-
bered. He also stated he could not respond to the information
requests, because Johnson’s description of them was too vague.
Rutt asked Johnson to provide specifics regarding the date the
requests were made, the method of the request, and what infor-
mation was requested. As to bargaining, Rutt asked if the Union
was contending the Respondent did not meet with it to discuss
the terminations. If not, Rutt asked for an explanation as to what
additional information the Union asked to discuss which the
employees subsequent to their being issued prior discipline, instead of
the next step in the discipline process.
61 GC Exh. 407. All of the communication between Johnson and Rutt
as described in this section is contained in this exhibit.
Respondent had not addressed. Johnson did not respond to this
letter.
On September 5 and 20, Rutt provided Johnson with a partial
response to the Union’s August 8 information request. However,
the Respondent never furnished the Union with a list of all oper-
ators who worked on the order for which it terminated Hesler; a
list of all work orders containing defects and the action taken; or
all write-ups for violations of the cell-phone policy for the past
year. The Respondent did provide records of employees logging
in and out at the start and end of shifts, as well as for breaks. But
the information provided was not for all departments and did not
cover the full year the Union requested.63
Finally, on October 20, Rutt advised Cooprider and Dunham
that their January 2017 disciplines for harassing other employees
were being rescinded, because they were not justified. Rutt did
this the day after Augustiniak’s employment with the Respond-
ent ended and shortly before Rutt himself left the Respondent’s
employ.64
LEGAL ANALYSIS
A. Did the Respondent Engage in Unlawful Surveillance
of Nichols?
(Complaint Paragraph 6(b))
The General Counsel’s complaint alleges the Respondent en-
gaged in unlawful surveillance of employees’ union and pro-
tected concerted activity, when Augustiniak instructed McMeins
in June 2017 to work the overnight shift and observe the activi-
ties of a suspected union supporter (Nichols).
Instructing a supervisor to engage in surveillance of employ-
ees’ protected activity violates Section 8(a)(1). Teksid Alumi-
num Foundry, Inc., 311 NLRB 711, 711 fn. 2 (1993) (instructing
supervisors to keep their “eyes and ears open” because employer
would not allow a union was unlawful). During the June 23 su-
pervisory meeting, Augustiniak told McMeins to work the night
shift and make sure Nichols, the “union billboard,” did not visit
other employees outside of her work area and discuss the Union
with them. He also instructed McMeins to report back to him
the next morning, if she did so. No question exists that Augus-
tiniak’s instructions to McMeins were unlawful. The Respond-
ent argues that McMeins was assigned to the night shift, solely
because another supervisor was absent. But McMeins’ uncon-
troverted testimony establishes that the other supervisor’s ab-
sence was not the sole, nor even the most important, reason that
Augustiniak asked him to work the shift. Augustiniak was con-
cerned about having no shift supervision on Nichols’ first night,
so he asked McMeins to fill in and monitor her union activities.
The Respondent also argues no unlawful surveillance occurred,
because Nichols was an open union supporter. I find no merit to
the argument. The cases where the Board has found an em-
ployer’s observation of employees’ open union activity lawful
involved a specific, not hypothetical, activity. The Respondent
does not have carte blanche to monitor all of Nichols’ union ac-
tivities, just because she is an open union supporter. In any
62 This letter appears to have been written by an attorney on Johnson’s
behalf.
63 GC Exhs. 408–409; Tr. 1628–1629.
64 Tr. 1068–1074, 1095–1096; GC Exh. 120.
BEMIS COMPANY, INC. 25
event, an employer may not do something “out of the ordinary”
to observe open union activity, because it gives employees the
impression the employer is engaging in surveillance of protected
conduct. Sprain Brook Manor Nursing Home, 351 NLRB 1190,
1191 (2007). Augustiniak did something out of the ordinary
when he instructed McMeins to work the night shift, which
McMeins had never done. Thus, Augustiniak’s instruction to
McMeins to engage in surveillance of Nichols’ protected activi-
ties violates Section 8(a)(1).
B. Did the Respondent’s Discharge of Hesler Violate
Section 8(a)(3)?
(Complaint Paragraphs 8(d) and 9)
The General Counsel’s complaint alleges the Respondent vi-
olated Section 8(a)(3) by discharging Hesler, due to her union
and protected concerted activity.
In determining whether an employee’s discharge is unlawful,
the Board applies the mixed motive analysis set forth in Wright
Line, 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and ap-
proved in NLRB v. Transportation Management Corp., 462 U.S.
393 (1983). Under Wright Line, the General Counsel must
demonstrate by a preponderance of the evidence that the em-
ployee’s protected conduct was a motivating factor behind the
employer’s adverse action. The General Counsel satisfies the in-
itial burden by showing (1) the employee’s protected activity; (2)
the employer’s knowledge of that activity; and (3) the em-
ployer’s animus. Alternative Energy Applications Inc., 361
NLRB 1203, 1205 (2014). A discriminatory motive may be es-
tablished by: (1) statements and actions showing an employer’s
general and specific animus; (2) the presence of other unfair la-
bor practices; (3) the disparate treatment of the discriminates; (4)
departure from past practice; and (5) evidence that an employer’s
proffered explanation for the adverse action is a pretext, includ-
ing advancing a false reason. National Dance Institute–New
Mexico, Inc., 364 NLRB No. 35, slip op. at 10 (2016).
To begin, the record evidence establishes, and the Respondent
does not contest, that Hesler was an active union supporter and
engaged in union activity. Before the election in May 2016, Hes-
ler voiced her support for the Union in a captive audience
65 The General Counsel, in conclusory fashion without any citation to
case law, argues that Hesler engaged in protected concerted activity, by
raising complaints about working conditions with management in vari-
ous meetings the Respondent had with employees. At a meeting in April
2016, Hesler objected to the Respondent’s reimbursement for safety
shoes and its scheduling of employee vacations. In December 2016, Hes-
ler told supervisors at a meeting that new hires were being treated poorly
in the extrusion department. At a June 15 meeting, Hesler complained
that the Respondent was holding the finishing department to higher pro-
duction standards than the extrusion department. She also requested a
different day off for all employees for the July 4th holiday and asked if
the Respondent would fund an upcoming community safety day. No
employees joined in Hesler’s complaints when she made them at the
meetings. Furthermore, Hesler’s limited testimony about each of these
meetings fails to establish she was bringing a group complaint to man-
agement or was attempting to induce group action. Thus, although her
complaints in the two meetings concerned terms and conditions of em-
ployment, her conduct was not concerted. Alstate Maintenance, LLC,
367 NLRB No. 68, slip op. at 7 (2019).
meeting and directly to Augustiniak. After the Union was certi-
fied, Hesler served as a steward from July 2016 until her termi-
nation. In that role, employees brought their workplace com-
plaints to her and, in turn, she discussed them with management.
The Respondent was aware of all of this activity. Therefore, the
General Counsel has established the first two elements of the in-
itial Wright Line burden.65
The evidence likewise establishes the Respondent’s animus.
This discussion must begin with Augustiniak. From the moment
he learned of the Union’s petition filing in April 2016, Augus-
tiniak engrossed himself in the task of determining which em-
ployees supported the Union and the content of discussions they
were having about the Union. Even after the Union won the
election, Augustiniak continued his efforts. In his daily supervi-
sory meetings, Augustiniak asked his managers for details on
discussions about the Union on the shop floor, including specif-
ically about negotiations. They reviewed union fliers as well. At
one point, Augustiniak told them the Respondent would present
a proposal to the Union that would result in a wage decrease for
employees, to show them the “negative value” of having chosen
to be represented by the Union. He also advised them that a de-
certification effort was in progress and conversed with the em-
ployee who ultimately filed a decertification petition. He en-
gaged in unlawful surveillance of Nichols’ union activity, by or-
dering McMeins to work off shift and observe Nichols to insure
she did not leave her workstation to discuss the Union with other
employees. He also was keeping tabs on the Union’s Facebook
page. Finally, when McMeins told Augustiniak of the recom-
mendation he got from the Oklahoma Bemis plant manager to
follow the union contract whether it benefitted him or not, Au-
gustiniak responded that it was “not the direction he was inter-
ested in taking.”
The evidence also establishes the Respondent’s specific ani-
mus towards Hesler’s protected conduct. At the June 2017 meet-
ing to discuss the potential discipline of Hesler, McMeins told
Augustiniak he did not think discipline was warranted and ex-
plained the specific reasons why he came to that conclusion. Au-
gustiniak responded by asking him why he was protecting Hes-
ler, to which McMeins answered he was just looking at facts.
Augustiniak then told him “protecting Linda Hesler could
The General Counsel also contends Hesler engaged in protected con-
certed activity by discussing complaints about working conditions with
her coworkers. In November 2016, Hesler and other employees dis-
cussed Schoonover being a “ballbuster” and issuing discipline to a
coworker. In late December 2016, Hesler and other employees discussed
having to work overtime, due to other employees’ restricted work sched-
ules. Hesler told one employee he should get a doctor’s note, if he
wanted a restricted schedule. Again, these discussions were protected,
but not concerted. On neither occasion did employees discuss bringing
their complaints to upper management or taking any other form of group
action addressing their complaints. Subsequently, they never did so.
Finally, I also reject the General Counsel’s contention that Hesler’s
July 3 post to the Union’s Facebook page constituted union activity.
Hesler wrote “It’s a sad day when you have to get a note from your doctor
to use the restroom.” The mere act of posting a comment on a union’s
Facebook page, as opposed to a personal page, does not transform the
text from personal gripe to protected union activity.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
jeopardize (your) standing at Centerville.” Thus, Augustiniak
threatened McMeins with discharge for defending Hesler. Given
the extensive hostility Augustiniak displayed towards the Union
prior to then, the reasonable inference is that Augustiniak made
the threat, because McMeins was protecting a strong union sup-
porter. The statement otherwise would be illogical. The purpose
of the meeting was to discuss whether Hesler should be disci-
plined. The fact that McMeins did not agree with Augustiniak
on that question, standing alone, would not warrant threatening
him with job loss. Then at the July 2017 meeting to discuss Hes-
ler’s possible discharge, Augustiniak again rejected McMeins’
calls to determine an objective measure, the defect rate, to eval-
uate Hesler’s job performance, instead telling him that Hesler
had a “bad attitude.” In this context and given his overall union
animus, Augustiniak’s use of this phrase was a veiled reference
to Hesler’s union activity. Climatrol, Inc., 329 NLRB 946, 946
fn. 4 (1999) and cases cited therein. Augustiniak’s continual re-
sistance to evaluating Hesler’s job performance using objective
measures suggests her job performance deficiencies were not the
reason for her discharge. At the time he was doing so, Augus-
tiniak already was aware of an ongoing decertification effort and
the Union’s certification year had expired. Augustiniak was
looking to seize upon a seemingly valid reason to discharge Hes-
ler for her union support.
In addition, both Augustiniak and Schoonover took repeated
steps to ensure Hesler and other union supporters did not con-
vince other employees, in particular new hires, to support the
Union. Prior to the election, it was common practice for employ-
ees to leave their running machines and converse with cowork-
ers, without any repercussions from the Respondent. From Jan-
uary 1, 2015, to the May 6, 2016 election date, no employee was
disciplined for doing so. However, things changed once the Un-
ion came in. Hesler’s November 15, 2016 verbal warning66 and
her June 30, 2017 final warning both were based, in part, on Hes-
ler’s visits to and discussions with other employees. On the sur-
face, requiring operators to remain at their running machines to
minimize bag defects is a perfectly reasonable job expectation.
But keeping union supporters at their machines so they could not
drum up additional support for the Union is an entirely different
matter. Augustiniak instructed McMeins to engage in surveil-
lance of Nichols, so he could prevent her from leaving her area
and talking to other employees about supporting the Union. If
that was his reason for keeping Nichols at her machine, it is
proper to infer that Augustiniak also wanted Hesler at her ma-
chine for the same reason. Moreover, in May 2017, Augustiniak
gave McMeins and Allgood a specific instruction that Hesler’s
coworker, Mae, could not train new employees, because she was
a strong union supporter. As of that month, Hesler too no longer
could train employees, even though she had 20+ years of expe-
rience, was in the advanced machine operator position, was one
66 The Respondent argues it is improper for me to consider its disci-
plines of Hesler outside the 10(b) period, including the November 2016
verbal warning, as evidence of animus. The Union filed its original
charge alleging the company had been “discriminating against and ter-
minating” Hesler due to her protected conduct on September 11, 2017.
(GC Exh. 1(q).) Thus, the November 2016 verbal warning occurred
more than six months before the filing of the charge. Nonetheless, it is
well established that events occurring outside the 10(b) period can be
of only two operators who could run the difficult Machine 75,
and previously had trained employees. Again, the reasonable in-
ference is that, like Mae, Hesler was not allowed to do so, be-
cause she was a strong union supporter. Augustiniak’s actions
suggest he was being mindful of the “very close vote” in the elec-
tion.
The striking increase in the Respondent’s issuance of disci-
pline following the Union’s election win further supports a find-
ing of animus. Hedaya Brothers, Inc., 277 NLRB 942, 945–946
(1985). In roughly comparable time periods, the Respondent
went from 12 to 51 verbal warnings; two to 20 written warnings;
one to nine final warnings; and zero to four discharges. The
number of nondisciplinary corrective actions it issued declined
from 175 to 91.
Citing to Tschiggfrie Props., Ltd. v. NLRB, 896 F.3d 880, 886
(8th Cir. 2018), the Respondent argues that the General Counsel,
to meet the initial Wright Line burden, must establish a nexus
between the Respondent’s animus and Hesler’s discharge. The
Respondent specifically contends that Rutt was the decision
maker for Hesler’s discharge and had no animus towards her pro-
tected conduct. The argument fails for both factual and legal
reasons. Factually, Augustiniak was the plant manager, the high-
est-level position at the plant, while Rutt was a human resources
manager. At the meeting where Augustiniak and McMeins dis-
cussed Hesler’s issue with Machine 75, Augustiniak, not Rutt,
told McMeins he wanted to proceed with Hesler’s discharge.
The Respondent does not cite to any record evidence, because
none exists, supporting the notion that Rutt made the decision to
terminate Hesler on his own or that he had such authority in his
position. Legally, the Respondent misstates Board law. Proving
that an employee’s protected activity was a motivating factor in
the employer’s action does not require the General Counsel to
make some additional showing of particularized motivating ani-
mus towards the employee’s own protected activity or to further
demonstrate some additional, undefined “nexus” between the
employee’s protected activity and the adverse action. See, e.g.,
East End Bus Lines, Inc., 366 NLRB No. 180, slip op. at 1 fn. 7
(2018); Libertyville Toyota, 360 NLRB 1298, 1301 fn. 10
(2014), enfd. 801 F.3d 767 (7th Cir. 2015). Even if it did, the
record evidence demonstrates the Respondent’s specific animus
towards Hesler’s protected activity, as described above, and
would establish such a nexus. In any event, the Eighth Circuit’s
decision in Tschiggfrie Props. is not binding precedent on the
Board. Western Cab Co., 365 NLRB No. 78, slip op. at 1 fn. 4
(2017).
Finally, I find Augustiniak’s testimony concerning how and
why the Respondent discharged Hesler to be totally unreliable
and indicative of pretext. Augustiniak attempted to cast his role
as one of approving Schoonover’s decision, brought to him by
used as background evidence of an employer’s animus. CSC Holdings,
LLC, 365 NLRB No. 68, slip op. at 4 (2017). Moreover, conduct that
exhibits animus but that is not independently alleged or found to violate
the Act nevertheless may be used to shed light on the motive of other
conduct that is alleged to be unlawful. Brinks, Inc., 360 NLRB 1206,
1206 fn. 3 (2014). Accordingly, it is proper for me to rely upon the No-
vember 2016 warning as evidence of animus.
BEMIS COMPANY, INC. 27
Rutt, to discharge Hesler. But McMeins’ credited testimony
shows Augustiniak was not a passive observer in the decision-
making process. Moreover, Augustiniak did not even testify as
to why Hesler was discharged. He also did not describe what he,
Rutt, and McMeins said to one another when discussing Hesler’s
discharge. Instead, when asked point blank during his direct ex-
amination what Rutt told him, ostensibly in seeking his approval,
about Hesler’s termination, Augustiniak only response was:
I think our conversations were that this is in line with what we
have been doing, you know, followed the process. The process
was approved as—as it was followed. It was progressive dis-
cipline process throughout the – the stages of that process. Eve-
rything was followed, documented.
He also gave a nonsensical and nonspecific answer as to why
McMeins, as the department manager, could not overrule
Schoonover’s recommendation to discharge Hesler, then contra-
dicted himself later by saying a supervisor’s recommended dis-
cipline could not proceed without department manager approval.
Augustiniak could not explain with clarity what criteria the Re-
spondent even used to determine when discipline was warranted
for defective bags. He first denied that McMeins spoke to him
about the need for a defect rate, then said he could not recall if
McMeins had asked him about it. To say Augustiniak’s testi-
mony in this regard was unconvincing is a significant understate-
ment.67
For all these reasons, I conclude the General Counsel also has
met the burden of showing the Respondent’s animus.
Because the General Counsel has met his initial Wright Line
burden, the burden shifts to the Respondent to prove that it would
have discharged Hesler, even in the absence of her protected ac-
tivity. See, e.g., Mesker Door, 357 NLRB 591, 592 (2011); Don-
aldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). The
Respondent cannot meet its burden merely by showing that it had
a legitimate reason for discharging Hesler; rather, it must demon-
strate that it would have taken the same action in the absence of
the protected conduct. Bruce Packing Co., 357 NLRB 1084,
1086 (2011); Roure Bertrand Dupont, Inc., 271 NLRB 443, 443
(1984). If the evidence establishes that the reasons given for the
Respondent’s action are pretextual—that is, either false or not in
fact relied upon–the Respondent fails by definition to show that
it would have taken the same action for those reasons, and its
Wright Line defense necessarily fails. Libertyville Toyota, supra
at 1301; Golden State Foods Corp., 340 NLRB 382, 385 (2003).
I have concluded that the Respondent’s reasons for discharg-
ing Hesler were a pretext, because her job performance issues
were seized upon by Augustiniak to discharge her and rid the
Respondent of a strong union supporter. Thus, the Respondent
defense fails. However, even if pretext was not established, the
outcome would be the same. The Respondent argues it would
have discharged Hesler irrespective of her protected activity, be-
cause of repeated issues with production quality.68 I agree that
the record evidence establishes Hesler had multiple quality is-
sues prior to her discharge. She produced 1,575 defective bags
67 Tr. 2060–2062, 2076–2080, 2084, 2107–2108.
68 Although the Respondent contends it discharged Hesler solely due
to “quality” issues, its November 15, 2016 verbal warning to her contains
on November 16, 2016; 43 defective bags on June 30, 2017; and
180 defective bags on July 21, 2017. By and large, Hesler ad-
mitted to being responsible for the defective bags. Moreover,
before discharging Hesler, the Respondent followed its estab-
lished progressive discipline policy, issuing her a verbal warn-
ing, written warning and final warning within a 1-year period
before terminating her. Considering this evidence, the Respond-
ent had a legitimate business reason for discharging Hesler.
Nonetheless, that alone does not render Hesler’s discharge
lawful. The Respondent did not produce sufficient evidence, in-
deed any evidence, that it previously discharged employees pur-
suant to its progressive discipline policy in the same manner it
discharged Hesler. The Respondent’s own summary of its dis-
ciplinary actions for 2015–2017, entered into evidence by the
General Counsel, shows that, prior to Hesler’s discharge, it did
not strictly adhere to the progressive discipline steps numerous
times, either repeating steps or not discharging employees who
were eligible under the policy. The Respondent did not explain
the criteria it used, if any, for determining when it would issue a
corrective action to an employee instead of actual discipline;
when it would repeat or skip a step-in progressive discipline for
an employee; and why it ultimately discharged the four other em-
ployees it did in addition to Hesler. In the absence of all this
information, it is impossible to determine if the Respondent
would have discharged Hesler, even absent her union activity.
Moreover, two other operators, Egbert and Glosser, ran Machine
75 on the same order leading to the Respondent’s discharge of
Hesler. Both also produced defective bags. But the Respondent
did not discharge, or even discipline, the two employees. Alt-
hough Rutt contemporaneously claimed to the union representa-
tives that the two received corrective actions because of a lack of
prior discipline, the Respondent’s summary does not show any
corrective actions issued to the two employees in 2017. In addi-
tion, Egbert received a verbal warning on July 26, 2016, less than
a year prior to the July 12, 2017 defective bag issue. Thus, the
next step in the progressive discipline policy for her was written
warning, not corrective action.
As to its shifting burden, the Respondent argues that the Gen-
eral Counsel did not demonstrate any employee on the same or
similar disciplinary track as Hesler was not terminated. Of
course, the burden at this juncture is on the Respondent to show
the inverse, that it previously discharged employees in the same
manner it terminated Hesler. In any event, the limited evidence
in the record establishes that the Respondent did not always dis-
charge similarly-situated employees. The Respondent also stip-
ulated to the fact that it disciplined some employees for quality
issues resulting in customer complaints, but not others. To ex-
plain this, the Respondent claims that any inconsistencies in its
discipline of employees for quality issues were due to it only dis-
ciplining employees when the root cause of the issue was known.
The Respondent cites to one paragraph of Augustiniak’s testi-
mony, as well as confusing and unclear testimony from Hesler
about a different alleged quality issue for which the Respondent
did not discipline her. I find that testimony insufficient to
no such issues. Rather, it states Hesler was disciplined for leaving her
shift early, leaving her machine to converse with other employees, and
gossiping about her supervisor and another employee.
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
establish the Respondent had a practice of not disciplining em-
ployees, if it did not know the root cause of a quality issue.69
I conclude the Respondent’s discharge of Hesler violates Sec-
tion 8(a)(3).70
C. Did the Respondent Refuse to Furnish Relevant Information
to the Union?
(Complaint Paragraph 17)
The General Counsel’s complaint alleges that the Respondent
violated Section 8(a)(5), by refusing to furnish the Union with
relevant information requested on August 8.
In his written request, Johnson asked the Respondent to pro-
vide the following items: (1) a list of all operators who worked
on the order resulting in Hesler’s discharge; (2) a list of work
orders with defects and the action taken; (3) records of all em-
ployees logging in and out at the start and end of shifts, as well
as for breaks, for one year; and (4) all write ups for violations of
the Respondent’s cell-phone policy for one year. The first three
items related to Hesler’s discharge, while the fourth related to
Lewis’ discharge. The Respondent never provided items (1), (2),
and (4). Regarding item (3), the Respondent provided a partial
response, but not the logs for all departments or for the entire
time period requested.
An employer has a statutory obligation to provide to a union
that represents its employees, on request, information that is rel-
evant and necessary to the union’s performance of its duties as
the exclusive collective-bargaining representative. Endo Paint-
ing Service, 360 NLRB 485, 485 (2014), citing to NLRB v. Acme
Industrial Co., 385 U.S. 432, 435–436 (1967) and NLRB v. Truitt
Mfg. Co., 351 U.S. 149, 152 (1956). Information concerning
wages, hours, and other terms and conditions of employment for
unit employees is presumptively relevant to the union’s role as
the bargaining representative. A-1 Door & Building Solutions,
356 NLRB 499, 500 (2011). All of the Union’s requests sought
information on the Respondent’s treatment of other employees
who engaged in the conduct resulting in the discharges of Hesler
and Lewis. The requested information would enable the Union
to evaluate possible disparate treatment of Hesler and Lewis.
Requests for prior discipline of employees are presumptively rel-
evant. Grand Rapids Press, 331 NLRB 296, 299 (2000). In ad-
dition, information that would allow the Union to investigate
possible disparate treatment is relevant. Postal Service, 307
NLRB 1105, 1109–1110 (1992). Thus, the Respondent was ob-
ligated to furnish the requested information to the Union.71
The Respondent argues that Rutt asked the Union for clarifi-
cation of its information request, but Johnson never responded.
However, the Respondent’s confusion related to the Union’s
claim that the company had not fully responded to information
69 Tr. 981–982, 2080, 2319.
70 Having found that the Respondent’s discharge of Hesler violates
Section 8(a)(3), and given the associated make-whole remedy, it is un-
necessary, and I therefore decline, to reach the General Counsel’s alle-
gation that the Respondent violated Sec. 8(a)(5) by failing to bargain
with the Union over Hesler’s discharge. (Complaint paragraphs 14(e)
and 15.) Napleton Cadillac of Libertyville, 367 NLRB No. 6, slip op. at
1 fn. 2 (2018).
71 My conclusion would remain the same, irrespective of whether the
Respondent had a continuing obligation to bargain over the discharges
requests allegedly made prior to, not after, the discharges of the
four employees. In Johnson’s August 10 letter to Rutt, he stated
“…the Union requested information in at least three out of the
four cases. In some instances, Bemis replied to the Union in re-
sponse to its information request and in some instances it did not.
Bemis then terminated all four employees.” Rutt responded by
asking for the specifics of those information requests.72 None of
this dialogue had anything to do with the Union’s August 8 writ-
ten requests for information. No ambiguity exists in those re-
quests and Rutt never asked for any clarification of them. In-
deed, Rutt’s initial response to the August 8 requests was “I will
be gathering the requested information and forward to you by the
end of next week.” Rutt’s confusion was over the Union’s sub-
sequent contention that the Respondent discharged Hesler,
Lewis, and two other employees, before responding to infor-
mation requests made prior to the discharges. But that confusion
did not eradicate Rutt’s obligation to provide the information re-
quested by Johnson in writing on August 8.
The Respondent’s refusal to provide all of the information re-
quested by the Union violates Section 8(a)(5).
D. Did the Respondent’s Discharge of McMeins Violate
Section 8(a)(1)?
(Complaint Paragraphs 6(c) and 6(d))
The General Counsel’s complaint alleges that the Respondent
discharged McMeins for refusing to commit unfair labor prac-
tices, in violation of Section 8(a)(1). Specifically, the General
Counsel contends that McMeins was terminated because he re-
fused to support the pretextual discipline and discharge of Hes-
ler.
Although supervisors generally are excluded from coverage
under the Act, an employer’s discharge of a supervisor for refus-
ing to commit an unfair labor practice is unlawful. Parker-Robb
Chevrolet, Inc., 262 NLRB 402 (1982). The impact of such a
discharge on employees’ Section 7 rights, coupled with the need
to ensure that even statutorily excluded individuals may not be
coerced into violating the law, compels that supervisors be pro-
tected despite the general statutory exclusion. Id. at 404.
McMeins spoke with Augustiniak prior to the Respondent dis-
ciplining Hesler on June 30 and discharging her on July 28. At
the first meeting, McMeins said he did not think the proposed
discipline of Hesler was warranted. He specifically objected to
reliance on Hesler taking excessive bathroom breaks and not log-
ging in and out of her machine properly. When Augustiniak
asked him why he was protecting Hesler, McMeins denied it and
said he was just looking at the facts. During the discussion, nei-
ther Augustiniak nor McMeins mentioned Hesler’s union activ-
ity. At the end of the meeting, Augustiniak overruled McMeins
after implementation, pursuant to Total Security Management Illinois 1,
364 NLRB No. 106 (2016). As the employees’ bargaining representa-
tive, the Union has a continuing interest in knowing whether the Re-
spondent engaged in disparate treatment. Moreover, at the time of Hes-
ler’s discharge, the Union and the Respondent still were negotiating a
discipline provision for their initial contract and disparate treatment in-
formation was relevant to the Union’s bargaining function in that regard
because, as discussed below, the Respondent did not want to include a
just cause requirement for discipline in the contract.
72 GC Exh. 407, pp. 5, 7, 9; Tr. 1683–1684.
BEMIS COMPANY, INC. 29
and decided Hesler should be given the final warning. Following
the meeting, McMeins told Rutt he though Schoonover was tar-
geting Hesler, but did not explain why he thought she was doing
so. Nonetheless, McMeins issued the discipline to Hesler that
same day. He told Hesler he felt she was being singled out, but
again did not say why. McMeins also said he did not agree with
the entire discipline but had to stand by it, implying his superior
Augustiniak made the decision to issue it. At the July 13 meeting
to discuss Hesler’s proposed termination, McMeins initially told
Augustiniak he could not determine the defect rate for her work
on the July 12 order and thus could not conclude that discipline
was warranted. Augustiniak disagreed that determining the de-
fect rate was necessary, again accused McMeins of protecting
Hesler, and said he wanted to proceed with Hesler’s discharge.
When he asked McMeins if he could agree to that decision,
McMeins initially said no. Then Augustiniak asked whether
McMeins could agree to it, if Hesler had a history of poor per-
formance and walked away from her machine. McMeins said
yes. Again, neither Augustiniak nor McMeins discussed Hes-
ler’s union activity. Eight days following the second discussion,
the Respondent discharged McMeins, allegedly for his lack of
communication and leadership style. At that point, the Respond-
ent had not yet discharged Hesler.
In evaluating the application of Parker-Robb to these circum-
stances, the Board’s decision in Pontiac Osteopathic Hospital,
284 NLRB 442 (1987), is instructive. In that case, two employ-
ees engaged in protected concerted activity, when they wrote a
fake newsletter with satirical articles complaining about the em-
ployer’s relationship with its employees and criticizing a super-
visor. The nursing director showed a copy of the newsletter to a
supervisor of one of the employees, who recognized the em-
ployee’s handwriting. The nursing director decided to discharge
the employee. The employee’s supervisor was present when the
nursing director informed the employee she was being dis-
charged. After the discharge, the supervisor told the nursing di-
rector that she did not think the incident warranted discipline.
The nursing director responded that the supervisor had to support
all administrative decisions. Subsequently, the employer’s ex-
ecutive director told the supervisor not to openly disagree with
administrative decisions. The supervisor responded to him that,
while she disagreed with the decision to discharge the employee,
she had not done so openly. Nonetheless, the employer fired the
supervisor. Although it found the employee’s discharge violated
Section 8(a)(1), the Board held that the supervisor’s discharge
was not unlawful. The Board drew a distinction between the dis-
charge of a supervisor for refusing to commit an unfair labor
practice and for failure to support management action amounting
to an unfair labor practice. The Board explained:
When an employer asks a supervisor to commit an unfair labor
practice, the supervisor is forced to choose between violating
the law or disobeying the employer’s request–a choice that
73 The General Counsel’s reliance on FlorStar Sales, Inc. is mis-
placed, as no exceptions were filed in that case to the administrative law
judge’s unfair labor practice findings. 325 NLRB 1210, 1210 fn. 2
(1998). Thus, the decision is not binding precedent. Even if it was, the
employer there instructed a manager to persuade employees against the
union and he would be held responsible if he did not. The employer later
could lead to discipline or discharge. Consequently, in such sit-
uations, an employer is able to pressure a supervisor into vio-
lating the law on its behalf. On the other hand, when a supervi-
sor, acting on his or her own initiative, chooses to express dis-
approval of a management policy, the supervisor is not coerced
at all (i.e., he or she has not been forced to choose between vi-
olating the law or risking the consequences of the employer’s
wrath). Admittedly, the discharge in either situation may have
a secondary effect on the employees’ exercise of their Section
7 rights, but there is no need to protect the supervisor from co-
ercion when the supervisor is acting on his or her own initiative.
The facts in Pontiac Osteopathic Hospital are strikingly sim-
ilar to this case. McMeins disagreed with Augustiniak’s conclu-
sions that Hesler should be disciplined and discharged. On his
own initiative, McMeins told Augustiniak he did not think the
June 30 discipline of Hesler was warranted. He said his position
was based on the “facts.” Despite not thinking the discipline was
warranted, McMeins still issued it to Hesler. When discussing
Hesler’s potential discharge, McMeins, again on his own initia-
tive, told Augustiniak he could not determine if discipline was
warranted, without an objective measure of Hesler’s perfor-
mance. Nonetheless, McMeins eventually agreed that Hesler’s
discharge would be appropriate, if it was determined that she had
a history of poor performance and again walked away from her
machine. Moreover, McMeins did not refuse to commit an un-
fair labor practice. McMeins never said, either contemporane-
ously or at the hearing, that he disagreed with the discipline and
discharge, because he thought Augustiniak was really basing
them on Hesler’s union activity. Cf. Ampersand Publishing, 357
NLRB 452, 496–497 (2011) (supervisor’s discharge was unlaw-
ful, where supervisor refused to issue a reprimand because he felt
it was retaliation for the employee’s support of the union);
Greenwich Air Services, 323 NLRB 1162, 1162 (1997) (dis-
charge of supervisor violated the Act, where supervisor refused
to participate in an employee’s termination, after being told it
was being done because the employer had proof the employee
was actively involved in a union); Trus Joist MacMillian, 341
NLRB 369, 389–390 (2004) (where supervisor refused to give
employee a failing rating on an appraisal and said the refusal was
due to his belief the proposed rating was motivated by a desire
to retaliate against the employee for his union activity, subse-
quent discharge of the supervisor was unlawful).
McMeins deserved a better fate here. He defended an em-
ployee he supervised from what he viewed as unwarranted dis-
cipline and called for her to be evaluated based upon objective
factors. But the record evidence does not establish that he
thought Augustiniak’s treatment of Hesler was motivated by
Hesler’s union activity. Thus, his conduct falls into the category
of failure to support management action amounting to an unfair
labor practice.73 The Parker-Robb exception does not apply and
the Respondent’s discharge of McMeins was lawful.74
discharged the supervisor for not being tough enough as a manager. The
Respondent here gave no such instructions to McMeins.
74 Were it necessary, I would conclude that Augustiniak’s stated rea-
son for discharging McMeins was a pretext and McMeins was dis-
charged because he repeatedly refused to support Augustiniak’s desire to
discipline and discharge Hesler. The sequence of events from June 30 to
30 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IV. THE RESPONDENT’S LAYOFFS AND JOB ELIMINATIONS IN JUNE
AND JULY 2017
FINDINGS OF FACT
A. The Temporary Layoffs, Voluntary and Involuntary
In the first 5 months of 2017, the Respondent’s sales volume
was down 15 to 20 percent from its budgeted number. Corporate
gave Augustiniak an edict to bring costs down which, coupled
with the poor sales, required a workforce reduction. The Re-
spondent decided to lay off employees both in manufacturing op-
erations and in “indirect” positions not involved directly in the
manufacturing process. Both bargaining unit and supervisory
employees were affected.75
On June 15, Rutt told Johnson and Zaputil that the Respond-
ent’s business was running soft, so the Respondent was going to
seek volunteers for layoffs and move other employees around.
That same day, the Respondent began soliciting employees for
voluntary layoffs. It also posted a memorandum from Augustin-
iak and Rutt announcing that it had offered the extrusion depart-
ment employees voluntary layoffs in 2-week increments. The
memo stated the voluntary layoffs were due to “decreased cus-
tomer volume” in extrusion. The memo also said that the layoffs
would be based on (plant) seniority, highest to lowest. The initial
2-week period ran from June 26 to July 10. Zaputil ended up
being one of the employees who took a voluntary layoff. When
she signed up for it, Zaputil received a “Voluntary Layoff Infor-
mation Sheet” from the Respondent. In the frequently-asked-
questions section of that document, one of the questions was
“How will Mandatory layoff be determined?” The answer
stated: “If we do not receive enough employees to sign up for
Voluntary lay off, we will require individuals to be off.” (Em-
phasis in the original.) The answer further stated mandatory
layoffs would be based on seniority, while accounting for the
Respondent’s need to maintain enough operators to run its ma-
chines and meet customer demands.76
On June 28, Stephan, the Respondent’s president, and Rutt de-
termined that twelve more employees had to be laid off, includ-
ing seven extruder operators and five treater operators. At some
July 21 makes clear that Augustiniak’s discharges of McMeins and Hes-
ler were linked. He discharged McMeins just 1 week after the meeting
where he opposed Hesler’s discharge and the day after Rutt informed the
Union that the Respondent intended to discharge Hesler. Augustiniak
himself told McMeins in the meeting to discuss Hesler’s June 30 disci-
pline that “protecting Linda Hesler could jeopardize your standing at
Centerville,” because of Hesler’s union support. Augustiniak held true
to his word shortly thereafter.
75 Tr. 2066–2069.
76 Tr. 239–247, 1589–1594; GC Exhs. 10, 11, 501. Where conflicts
exist, I credit Johnson’s testimony regarding the conversation with Rutt
on June 15. Compared to Zaputil’s testimony about the discussion, John-
son’s recall was more detailed and his demeanor when testifying more
assured.
77 Tr. 167–171, 1233–1243, 1596–1599. In making the finding that
Rutt first notified the Union of involuntary layoffs and the three employ-
ees who were being laid off on July 7, I credit Johnson’s uncontroverted
testimony. (Tr. 1596–1597.) The record evidence is far from clear as to
the sequence of events regarding the involuntary layoffs. Rutt could not
recall his discussions with Johnson and Zaputil about the layoffs, without
the aid of having his memory refreshed by his prior affidavit. (Tr. 1233–
point thereafter, Rutt told Zaputil and gave her the names of five
treater operators at the bottom of the seniority list. The Respond-
ent then solicited volunteers for the additional layoffs, but only
two treator operators volunteered. On July 7, the last workday
in the first 2-week voluntary layoff period, Rutt spoke to Johnson
and Zaputil. Rutt told the two that the Respondent now would
implement involuntary layoffs of the remaining three treator op-
erators at the bottom of the seniority list: Elizabeth Nichols, Jeff
McClurg, and Brian Shives. Rutt said it would be for a short
period of time, possibly 2 weeks. That same day, the Respondent
notified Nichols and McClurg of their layoffs.77
Soon after it implemented these temporary layoffs, the Re-
spondent had an uptick in business. As a result, on July 24, Rutt
advised Johnson and Zaputil that the Respondent was recalling
McClurg and Shives from their layoffs, but not Nichols. Be-
cause Nichols was an extrusion operator trainee at the time of the
layoffs (although counted as one of the treater operator layoffs),
Rutt said Nichols was not qualified to be recalled to that job clas-
sification. Johnson and Zaputil argued that Nichols should have
been brought back as a treater operator. Rutt said he would look
into it.78
On August 3, Rutt advised Johnson that the Respondent was
bringing Nichols back and she should have been recalled after
the initial 2-week involuntary layoff. Rutt stated that the Re-
spondent wanted to reimburse Nichols for her missed time and
shift differential for the 2 weeks she should not have remained
on layoff. Johnson agreed to the proposal. At the time, the Un-
ion was unaware that Nichols had not been recalled. After Nich-
ols returned, she met with Rutt, who told her he made a mistake
by failing to recall her with the other two employees. Nichols
asked Rutt about obtaining overtime pay for the same period.
Ultimately, the Respondent paid her 2 days of overtime in addi-
tion to her regular pay.79
B. The Permanent Layoffs of Four Employees and Elimination
of Two Job Classifications
On July 7, Rutt also advised Johnson and Zaputil that the Re-
spondent was eliminating certain jobs and four employees would
1243.) The limited testimony Rutt did provide did not establish the date
between June 28 and July 7 when he told Zaputil about the number of
employees who were to be laid off and the names of the five treater op-
erators. Rutt’s testimony and bargaining notes suggest he discussed the
“mandatory layoff” with Zaputil on July 5, but do not provide further
details. Zaputil only could recall discussing voluntary layoffs with Rutt.
(Tr. 247.)
78 Tr. 357–362, 1244–1247, 1602–1604. The testimony likewise is
confusing as to why the Respondent treated Nichols as a treater operator
for purposes of the layoff, but then as an extrusion operator for her recall.
It also is unclear as to the argument the Union was making as to why she
should have been recalled. However, no question exists that the Union
felt Nichols should have returned at the same time as the other two treater
operators.
79 Tr. 171–174, 1607; GC Exh. 406. At their meeting on this date,
the Respondent agreed to the Union’s proposal to extend the 2-week vol-
untary layoffs in extrusion to 4 weeks. They also agreed involuntary
layoffs would occur, if not enough employees volunteered. This agree-
ment occurred after the Respondent laid off McClurg, Nichols, and
Shives. (Tr. 416–418; R. Exh. 1, p. 23953.)
BEMIS COMPANY, INC. 31
be permanently laid off. Those employees were Coty Gearin,
Tyler Lewis, Kent Morlan, and Chet Varner. Morlan was an ink
controller and Lewis a maintenance laborer. Morlan had been
employed at the plant since 1980 and performed the job duties of
ink controller since 1990. The union representatives asked Rutt
about moving the employees somewhere else in the plant, rather
than laying them off. Rutt responded that there was a hiring
freeze and they were not going to move anyone. Johnson asked
that the permanent layoffs be done by seniority, not job classifi-
cation. Rutt responded that the job eliminations were a corporate
decision and the Respondent was going in a different direction.
Johnson then asked Rutt to negotiate on how the job eliminations
would play out. Rutt responded that he would discuss it with the
people being let go. When Johnson again asked Rutt how the
eliminations would be done, Rutt said he would get back to John-
son. This was the Respondent’s first notification to the Union of
the job eliminations.80
On that same July 7 date, the Respondent implemented the
permanent layoffs of the four employees and eliminated the job
classifications of ink controller and maintenance laborer. Mor-
lan was advised he was being let go in a meeting with Augustin-
iak and Rutt. Augustiniak told Morlan that business was bad and
the Respondent was not getting any orders. He said the Re-
spondent had to make cutbacks and get rid of some positions,
and Morlan’s was one of them. During the meeting, Rutt gave
Morlan a “Separation, Release and Waiver Agreement” (the
“separation agreement”) for Morlan’s consideration. The sepa-
ration agreement offered Morlan the opportunity to be covered
by the Respondent’s “Supplemental Unemployment Benefit
Plan” (the “SUB plan”), governed by the federal Employee Re-
tirement Income Security Act (ERISA). The SUB plan provides
payments to involuntarily terminated employees to bridge the
gap between their unemployment compensation and weekly base
pay. The separation agreement specifically called for Morlan to
receive 2 weeks of severance pay from the Respondent, then 8
weeks of payments from the SUB plan. In exchange, Morlan
had to waive any and all claims arising out of his employment
with the Respondent, including his permanent layoff. The other
three employees who were permanently laid off with Morlan also
received the proposed separation agreement. Employees in Cen-
terville were covered by the SUB plan for an unspecified time
period before the union election.81
On July 10, the Respondent issued a memorandum from Au-
gustiniak and Rutt to all employees entitled “Cost Reduction Ac-
tions” announcing the layoffs. The memorandum stated the re-
ductions will “reduce labor expenses” to “align our cost structure
with the current volume.” On that same date, Gearin, Lewis, and
Varner signed separation agreements. Morlan never did.82
Approximately 1 month after the Respondent laid off Morlan,
Rutt called him and offered him a job as an expediter in the fin-
ishing area. Morlan accepted the job, went in for one day, and
then rescinded his acceptance.83
80 Tr. 256–258, 370–372, 1240–1243, 1596–1599; GC Exh. 12, p. 3.
81 Tr. 799–802, 1902–1909; GC Exhs. 35–38; R. Exh. 9.
82 GC Exh. 13.
83 Tr. 803–805.
84 Tr. 795–799, 822–828.
Morlan’s job function as the ink controller was “formulating
new ink colors.” When new customers requested colors for their
bags, Morlan created an ink formula to match each color. Mor-
lan used a digital color matching system, called “X-Rite,” to de-
velop the ink formulas. Morlan manually measured out batches
of ink in different proportions in a small cup. Each time he added
a color, Morlan logged the addition to the formula. After each
addition, Morlan utilized an instrument which allowed X-rite to
compare his manual sample to the requested color and determine
if they matched. When the process was completed, he wrote
down the entire ink formula and retained it in a three-ring binder.
Morlan’s coworker, Shawn Bradshaw, was an ink maker/ink
blender in the ink room at the same time. Bradshaw also started
working at the plant in 1980, but after Morlan did. Bradshaw’s
job function was to “blend ink to proper colors.” He prepared
ink for the daily production schedule, so that it would be ready
for use by the press helper. To do so, Bradshaw would pick a
job and determine what colors were needed on it. He went to
Morlan’s office and pulled the ink formulas. Bradshaw then
manually made the needed colors, by dispensing different inks
into a 5-gallon bucket with a mixer on it. Bradshaw also utilized
the X-Rite system to insure a color match, before putting the
completed gallons on a shelf for press helpers to pick up. Morlan
and Bradshaw worked in two different areas, adjacent to one an-
other.84
About a year prior to Morlan’s permanent layoff, the Re-
spondent bought a new system for ink dispensing called “Nova
Flow.” This system permitted ink formulas to be electronically
stored and colors to be automatically made and dispensed via at-
tached ink drums. When the new system arrived, the Respondent
was not taking advantage of all the features the machine offered.
Instead, the system was just being used as a pump to dispense
ink. Even though all of the Respondent’s 2,000 ink formulas had
been entered into the system, the formulas did not include sol-
vent as an ingredient, a necessary step to finalizing a color for
print. Thus, the Respondent had Morlan redo the ink formulas
in the system to account for the inclusion of a solvent. Once
Morlan did so, Bradshaw utilized Nova Flow for his day-to-day
ink making. Instead of getting Morlan’s paper ink formula and
manually making the ink, Bradshaw could call up the formula on
Nova Flow and automatically dispense it into the gallons. Nova
Flow also had an ink inventory tracking system. Prior to the ma-
chine’s arrival, Morlan was responsible for tracking inventory
and reordering ink when needed. Morlan no longer performed
that work, once he finished upgrading Nova Flow with the proper
ink formulas.85
As for the union sentiments of the two employees, Morlan
tried to stay neutral. However, he perceived Bradshaw to be one
of the most antiunion people in the plant. Morlan heard Brad-
shaw make comments and “sounds of disgust” in the break room
when Bradshaw observed an employee wearing a prounion shirt.
Prior to the union election, Bradshaw purchased hats with his
85 Tr. 795–799, 808–813, 822–828, 831–857; R. Exhs. 3, 15. With
respect to the job duties of Morlan and Bradshaw, I credit Morlan’s un-
contradicted testimony. Neither Cozart, Morlan’s manager, nor any
other supervisor of Morlan testified. Bradshaw also did not testify.
32 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
own money saying “vote no,” gave the hats to other employees,
and wore his own “vote no” hat for 3 weeks prior to the election.
He acted as the Respondent’s observer at the election, wearing
his “vote no” hat. In the fall of 2017 after Morlan’s layoff, Brad-
shaw passed out fliers in the lunch room, allegedly detailing the
wages and benefits Des Moines employees lost because of the
Union. It also included his criticisms of the Union’s conduct in
negotiations and a call for employees to sign a petition to get rid
of the Union.86
LEGAL ANALYSIS
A. Did the Respondent’s Permanent Layoffs Violate
Section 8(a)(5)?
(Complaint Paragraphs 14(a), 14(c) and 14(d))
The General Counsel’s complaint alleges the Respondent vi-
olated Section 8(a)(5) by: permanently laying off Gearin, Lewis,
Morlan, and Varner on July 7, 2017; eliminating the ink control-
ler and maintenance laborer job classifications; and bypassing
the Union and dealing directly with the four employees by solic-
iting them to sign severance agreements in connection with their
layoffs.87
The law is well settled that an employer violates Section
8(a)(5) when it unilaterally changes represented employees’
wages, hours, and other terms and conditions of employment
without providing their bargaining representative with prior no-
tice and a meaningful opportunity to bargain over the changes.
Lincoln Lutheran of Racine, 362 NLRB 1655, 1656 (2015), cit-
ing to NLRB v. Katz, 369 U.S. 736, 742–743 (1962). Where, as
here, parties are engaged in negotiations for a collective-bargain-
ing agreement, an employer’s obligation to refrain from unilat-
eral changes extends beyond the mere duty to provide notice and
an opportunity to bargain about a particular subject matter. It
encompasses a duty to refrain from implementation at all, absent
overall impasse on bargaining for the agreement as a whole.
RBE Electronics of S.D., Inc., 320 NLRB 80, 81 (1995); Bottom
Line Enterprises, 302 NLRB 373, 374 (1991).
On July 7, Rutt notified Johnson and Zaputil that the Respond-
ent was permanently laying off Gearin, Tyler Lewis, Morlan, and
Varner. Johnson asked Rutt to negotiate over how the layoffs
would be done, to which Rutt responded that he would discuss
the matter with the people being let go. The Respondent laid off
all four employees the same day. The decision to lay off unit
employees is a change in terms and conditions of employment
and a mandatory subject of bargaining. Mercedes-Benz of Or-
lando, 358 NLRB 1729, 1750 (2012), reaffd. 361 NLRB 1238
(2014); Tri-Tech Services, 340 NLRB 894, 894–895 (2003).
Thus, absent extraordinary situations involving “compelling
economic circumstances,” an employer must provide notice to
and bargain with the union representing its employees concern-
ing both the layoff decision and the effects of that decision. Pan
American Grain Co., 351 NLRB 1412 (2007); Lapeer Foundry
& Machine, Inc., 289 NLRB 952, 954 (1988) (citations omitted).
86 Tr. 249–253, 805–808; GC Exh. 502.
87 The complaint does not allege the Respondent eliminated the job
classifications occupied by Gearin and Varner, because employees re-
mained in their job classifications following the layoffs.
The Respondent did neither. Its notice to the Union of the layoffs
was inadequate, because it occurred on the same day as the
layoffs and provided no meaningful opportunity to bargain. See,
e.g., Tramont Mfg., LLC, 365 NLRB No. 59, slip op. at 6–7
(2017); Toma Metals, Inc., 342 NLRB 787, 787 fn. 4 (2004).
Even had it been sufficient, the Respondent did not provide the
Union with the opportunity to bargain, because Rutt outright re-
fused to negotiate over the layoffs when Johnson requested he
do so.
The Respondent argues that it had no bargaining obligation
concerning the permanent layoffs, because they were part of an
established past practice. In Raytheon Network Centric Systems,
365 NLRB No. 161, slip op. at 16 (2017), the Board held that an
employer’s past practice, irrespective of how it was developed,
constitutes a term and condition of employment that permits the
employer to take actions unilaterally, where the actions do not
materially vary in kind or degree from what had been customary
in the past. The burden of proof is on the party asserting the
existence of a past practice. Caterpillar, Inc, 355 NLRB 521,
522 (2010), quoting Sunoco, Inc., 349 NLRB 240, 244 (2007).
To meet this burden, the party must show the prior action was
similar in kind and degree and occurred with such regularity and
frequency that employees could reasonably expect the practice
to continue or recur on a regular and consistent basis. Ibid.; see
also Consolidated Communication Holding, Inc., 366 NLRB
No. 152, slip op. at 4 (2018). The Respondent has fallen well
short of establishing it had a past practice of permanently laying
off employees. The only record evidence the Respondent relies
upon is one page of testimony given by press operator Bryan
Newman, a witness called by the General Counsel.88 Newman
stated that he moved into his press helper job in 2013, because
the plant manager determined he no longer needed Newman’s
services in the department in which he was working. The plant
manager gave Newman the option of going to another depart-
ment or “out the door.” This bare testimony of one employee
does not establish a past practice. It does not even involve the
permanent layoff of an employee. The Respondent offered no
evidence of any prior, permanent layoffs.
Accordingly, the Respondent’s permanent layoffs of Gearin,
Tyler Lewis, Morlan, and Varner violated Section 8(a)(5).
As to the Respondent’s elimination of the bargaining unit po-
sitions of ink controller and maintenance laborer, the General
Counsel pursues a unilateral change theory to establish this vio-
lation. Following a union’s certification and before an initial
contract is reached, an employer must provide the union with no-
tice and the opportunity to bargain over the elimination of a unit
job classification. See, e.g., FiveCap, Inc., 332 NLRB 943, 943
fn. 2, 950–951, 955 (2000); Plymouth Locomotive Works, 261
NLRB 595, 602–603 (1982). No dispute exists that the Re-
spondent eliminated the ink controller and maintenance laborer
positions. Aside from the non-meritorious Raytheon argument
described above, the Respondent offers no defense to this com-
plaint allegation.89 As a result, I also conclude the Respondent
88 Tr. 770.
89 In its brief, the Respondent states its decision to eliminate the po-
sitions was lawful, because it “goes to the heart of managerial control of
an operation.” The Respondent did not elaborate. If the Respondent
BEMIS COMPANY, INC. 33
violated Section 8(a)(5) by unilaterally eliminating the two posi-
tions, without providing the Union with notice and an oppor-
tunity to bargain.
Finally, regarding the direct dealing allegation, the General
Counsel contends the Respondent unlawfully solicited the four
employees to sign the severance agreements in connection with
their permanent layoffs. An employer engages in direct dealing
when: (1) the employer communicates directly with union-rep-
resented employees; (2) the discussion was to establish or change
wages, hours, and terms and conditions of employment or to un-
dercut the union’s role in bargaining; and (3) the communication
was made to the exclusion of the union. El Paso Electric Co.,
355 NLRB 544, 545 (2010) (citations omitted.
The record evidence establishes, and the Respondent does not
contest, the first and third elements. As to the first, the Respond-
ent offered the severance agreement to the four employees di-
rectly, resulting in three of the employees signing it. As to the
third, the Union was not a part of the discussions between the
Respondent and the employees concerning the severance agree-
ment. In fact, Rutt told Johnson he would address the layoffs
with the employees themselves, rather than bargain with the Un-
ion. He did not even advise Johnson and Zaputil that the Re-
spondent was going to offer the severance agreements to the em-
ployees.
The Respondent’s asserted defense goes to the second crite-
rion. It contends that offering SUB plan benefits to separated
employees was an established past practice. Thus, the Respond-
ent contends, by offering the benefits to the four permanently
laid off employees, the Respondent did not establish or change
their terms and conditions of employment. Again, I find the rec-
ord evidence insufficient to establish a past practice of offering
SUB plan benefits, given Dees’ limited and nonspecific testi-
mony on the topic. Dees testified that the SUB plan is offered to
employees who are involuntarily terminated, “typically” due to
a plant closure or downsizing. She also stated the plan was in
effect at the Centerville facility prior to the union election in May
2016, but did not specify for how long. From the Respondent’s
2016 tax filing with the Internal Revenue Service, it appears the
effective date of the plan was April 1, 2013. However, Dees did
not confirm that, for the Centerville plant or otherwise. Dees
also did not describe the total number of separated employees to
whom the Respondent has offered these benefits since the plan’s
inception or the circumstances of the employees’ departures.90
Even if the Respondent had a past practice of offering the SUB
plan benefits, the complaint alleges the Respondent engaged in
direct dealing by offering the separation agreement, not the SUB
plan benefits. The record evidence similarly falls short of estab-
lishing a past practice in that regard. Dees testified only that, if
intended to invoke First National Maintenance Corp. v. NLRB, 452 U.S.
666 (1981), I find that decision inapplicable to this case. In First Na-
tional Maintenance, the Supreme Court held that certain managerial de-
cisions amounting to a change in the scope and direction of a business
were core entrepreneurial decisions, which would require an employer to
bargain only if the benefit for labor-management relations outweighed
the burden placed on the conduct of the business. But here, the Respond-
ent implemented the layoffs and job classification eliminations for eco-
nomic reasons, meaning they were a mandatory subject of bargaining.
The only possible application of First National Maintenance would be
an employee wanted the supplemental unemployment benefits
after being terminated, the employee was required to “sign the
separation agreement and waiver form that they’re presented at
the time of their termination.” She did not state whether the Re-
spondent has used the same separation agreement in the past, in-
cluding whether it always included severance pay and continua-
tion of benefits for 2 weeks prior to the SUB plan going into ef-
fect. On this record evidence, the Respondent has not estab-
lished that its offering of the severance agreement to the four
permanently laid off employees in July 2017 was similar in kind
and degree and occurred with such regularity and frequency as
to constitute a past practice. Absent that showing, the Respond-
ent’s offer of the severance agreement to the four employees was
an attempt to establish terms and conditions of employment. Ac-
cordingly, all the criteria to demonstrate direct dealing have been
established and the Respondent’s offer violates Section 8(a)(5).
B. Did the Respondent’s Temporary Layoffs Violate
Section 8(a)(5)?
(Complaint Paragraph 14(b)
The General Counsel’s complaint also alleges the Respondent
violated Section 8(a)(5) by temporarily laying off McClurg,
Nichols, and Shives, and “others unknown to the General Coun-
sel at this time” on June 26, 2017. As a preliminary matter, it is
unclear from the allegation and the General Counsel’s brief
which layoffs the government is alleging were unlawful. The
June 26 alleged date corresponds to the start of the first 2-week
voluntary layoff of employees. But the Respondent imple-
mented the temporary, involuntary layoffs of McClurg, Nichols,
and Shives on July 7. The General Counsel’s brief suggests that
both the voluntary and involuntary layoffs are at issue. I will
presume that to be the case.
As noted above, the layoff of unit employees is a mandatory
subject of bargaining. Moreover, where, as here, a company ef-
fectuates a layoff due to a decline in business, the issues of
whether those layoffs should be affected, whom to include in
such layoffs, and what if any benefits should be given to laid off
employees also are mandatory subjects of bargaining. Ross
Fence, Inc., 359 NLRB 225, 229 (2012), reaffd. 361 NLRB 1198
(2014), citing to Dickerson-Chapman, Inc., 313 NLRB 907, 942
(1994). An employer also is required to bargain over the effects
of the layoffs, which mandates that the employer provide a union
with notice of the layoffs before they occur. Geiger Ready-Mix
Co. of Kansas City, 315 NLRB 1021, 1021 fn. 8 (1994), enfd. 87
F.3d 1363 (D.C. Cir. 1996). The recall of employees from a
layoff likewise is a mandatory subject of bargaining. Wilming-
ton Fabricators, Inc., 332 NLRB 57, 65 (2000).
I conclude the Respondent failed to provide the Union with
to Morlan’s layoff, because the Respondent contends, in defense to the
General Counsel’s allegation that his layoff also violated Sec. 8(a)(3),
that the ink controller position was eliminated as a result of a technolog-
ical change. As discussed in detail below, I find that the introduction of
the Nova Flow system did not render Morlan’s job obsolete. Even if it
had, the ability to automatically create ink from electronically stored for-
mulas, rather than doing it manually, is not a change in the scope and
direction of the Respondent’s business. Mi Pueblo Foods, 360 NLRB
1097, 1098 (2014).
90 Tr. 1902–1910; R. Exh. 9.
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adequate notice and an opportunity to bargain over both the vol-
untary and involuntary layoffs. To begin, the Respondent de-
cided it needed to lay off employees due to a decline in business.
Because the decision was motivated by economic conditions, the
layoffs and their effects were mandatory subjects of bargaining.
On June 15, Rutt informed Johnson and Zaputil that the Re-
spondent was going to voluntarily lay off some employees and
transfer other employees around. The Respondent began solic-
iting for volunteers the same day. Rutt made no mention at that
time of needing to implement involuntary layoffs, if not enough
employees volunteered. On June 28, the Respondent made the
decision to lay off 12 additional employees, including five treater
operators, and again sought volunteers. When he informed
Zaputil of that decision at some point thereafter, Rutt again made
no mention of involuntary layoffs. The first time the Union re-
ceived specific notice of the Respondent wanting to involuntarily
lay off employees and the names of the three employees was on
July 7, when Rutt told Johnson and Zaputil that information. The
Respondent implemented the layoffs the same day. Rutt’s con-
duct fairly can be described as merely informing the union of a
course of action the Respondent would take, meaning the layoffs
were presented as a fait accompli. Viejas Casino & Resort, 366
NLRB No. 113, slip op. at 8–9 (2018); Ciba-Ceigy Pharmaceu-
tical Division, 264 NLRB 1013, 1017–1018 (1982), enfd. 722
F.2d 1120 (3d Cir. 1983). Once the Respondent did so, the Un-
ion was relieved of any obligation to object. Burrows Paper
Corp., 332 NLRB 82, 83 (2000); Intersystems Design Corp., 278
NLRB 759, 759–760 (1986). That conclusion is further solidi-
fied by the Respondent advising the Union of the voluntary and
involuntary layoffs on the same days it began seeking volunteers
or implemented the layoffs. The Respondent did not provide the
Union with a meaningful opportunity to bargain.
The Respondent defends against this allegation by again in-
voking Raytheon and arguing that its conduct was in conform-
ance with an existing past practice for temporary layoffs. The
Respondent relies upon a letter from February 2, 2004, notifying
Hesler that she accepted a voluntary layoff due to business con-
ditions requiring a reduction in force.91 That one employee once
accepted a voluntary layoff some 14 years ago is not a past prac-
tice. The Respondent also relies upon the “Voluntary Lay Off
Information Sheet” signed by Zaputil, which stated the Respond-
ent would implement mandatory layoffs if not enough employ-
ees volunteered for them. It also stated the mandatory layoffs
would be done by seniority, except where the Respondent deter-
mined it needed to retain a certain number of employees in each
job classification to meet production. The notion that one em-
ployee receiving and signing this document establishes a past
practice as to voluntary or involuntary layoffs is nonsensical.92
Although Rutt and Zaputil testified that voluntary layoffs had
been done numerous times and were the preferred method of ad-
dressing overstaffing, such generalized testimony does not es-
tablish a past practice. To show a past practice similar in kind
and degree to the temporary layoffs, the Respondent had to es-
tablish it regularly laid off employees in response to business
91 R. Exh. 16.
92 That the Respondent stated in the sheet given to employees who
took a voluntary layoff that the company would involuntarily lay off
slowdowns; when it did so, it first offered voluntary layoffs to
employees; and, if an insufficient number of employees volun-
teered, the Respondent then involuntarily laid off employees.
The Respondent also had to demonstrate it used seniority to de-
termine who would be laid off. The record evidence falls well
short of doing so. See, e.g., Eugene Iovine, Inc., 353 NLRB 400,
400 (2008), reaffd. 356 NLRB 1056 (2011) (past practice of
layoffs was not established, where no showing was made of
when, how frequently, or under what circumstances unilateral
layoffs occurred); Litton Microwave Cooking Products, 300
NLRB 324, 413–414 (1990) (General Counsel failed to establish
employer had past practice of permitting employees to volunteer
for layoffs, where evidence consisted of only two voluntary
layoffs in first three years the facility was open). Therefore, the
Respondent has not demonstrated that its voluntary layoffs from
June 26 to July 7 or its involuntary layoffs of McClurg, Nichols,
and Shives on July 7 continued an existing term and condition of
employment and maintained the status quo. The temporary
layoffs violate Section 8(a)(5).
C. Did the Respondent’s Layoff of Morlan or its Refusal to
Recall Nichols Violate Section 8(a)(3)?
(Complaint Paragraphs 8(b) and 8(c))
The General Counsel’s complaint alleges that the Respond-
ent’s layoff of Morlan on July 7 also violated Section 8(a)(3).
The theory advanced is that the Respondent chose Morlan for
layoff and retained Bradshaw, even though Morlan had greater
seniority, because Bradshaw was an antiunion employee. The
complaint also alleges the Respondent’s failure to recall Nichols
from her temporary layoff on July 24 also violated Section
8(a)(3), because it was motivated by Nichols’ union activity.
The Respondent and General Counsel agree that these allega-
tions must be evaluated under Wright Line.
The General Counsel’s legal theory as to Morlan’s discharge
appears novel. Indeed, the General Counsel cites to no Board
decision in which a violation has been found under similar cir-
cumstances. However, Section 8(a)(3) broadly prohibits dis-
crimination “to encourage or discourage membership in any la-
bor organization.” An employer’s decision to retain an em-
ployee facing layoff because the employee opposed a newly-cer-
tified union would discourage other employees’ membership in
and support of a union. Thus, I conclude the legal theory is via-
ble. The question is how to apply Wright Line in these circum-
stances, because Morlan admittedly engaged in no union activ-
ity. The first two elements of the General Counsel’s burden must
focus on whether Bradshaw engaged in antiunion activity and
whether the Respondent was aware of that activity. The third
element would remain the same, requiring a showing the Re-
spondent had animus towards the union or its employees’ union
activity. Then, under the burden shifting model, the Respondent
has to demonstrate it would have retained the antiunion em-
ployee, even if the employee was not opposed to the union.
Applying that standard to Morlan’s layoff, the General Coun-
sel has met the required initial burden. Although the testimony
employees if it did not get enough volunteers also does not constitute
notice to the Union that it would do so.
BEMIS COMPANY, INC. 35
concerning Bradshaw’s activity was not extensive, it sufficiently
demonstrates he engaged in antiunion activity of which the Re-
spondent was aware. This included acting as the Respondent’s
observer at the election; wearing a “Vote No” hat that he printed
himself and distributing the same hat to other employees; hand-
ing out flyers criticizing the Union’s performance in bargaining
in the lunch and break rooms; and making comments critical of
other employees who wore union insignia. The Respondent’s
animus towards the Union has amply been demonstrated as dis-
cussed above, including by numerous unfair labor practices oc-
curring close in time to Morlan’s layoff.
Thus, the burden shifts to the Respondent to demonstrate it
would have laid Morlan off, absent Bradshaw’s antiunion activ-
ity. To do so, the Respondent contends Morlan was laid off be-
cause the Nova Flow system eliminated his job. I do not agree.
The main duty of Morlan’s job was to create ink formulas based
on color requests from new customers. He manually added dif-
ferent inks to match a color request and used X-Rite to verify
when he had done so. In contrast, prior to Nova Flow, Brad-
shaw’s job was to blend ink to proper colors. Specifically, he
dispensed ink manually from the drums into 5-gallon containers
using the formulas created by Morlan, so the ink could be used
in the actual bag manufacturing process. When it first purchased
Nova Flow, the only function the Respondent utilized in the soft-
ware was ink dispensing. After Morlan entered all his existing
ink formulas into the system and included solvent, the colors
were automatically blended. Thus, Nova Flow eliminated Brad-
shaw’s, not Morlan’s, job. Bradshaw was the one dispensing
inks to blend them into proper colors for manufacturing bags.
Nova Flow could do that automatically, because it dispensed the
different portions of ink necessary to create a color from a for-
mula entered into the system.
To support its contention that Morlan’s job was eliminated by
Nova Flow, the Respondent relies on this testimony93 from Mor-
lan:
Q: As the formulas got entered into the Nova Flow system, and
as the Company began to utilize the other additional functions
with that system, you ended up with less and less to do, right?
A: Not in particular. I mean, it’s – it’s – as far as – besides the
technology of the Nova Flow, even going back to 1990, we do
the same process: The formulation would be made, and it
would be – back then it would be put into a rolodex, where they
would mix by hand.
Q: Right.
A: Once you got it done, it was done.
Q: Right. So you’ve gone from a rolodex with handwritten
cards with formulas –
A: Yeah.
Q: – on them, okay, to a machine that literally, you know, a
utility guy in another room can just tap the screen, and the ink
will be dispensed? (Indicating.)
A: I suppose so, yes.
93 Tr. 846.
94 Tr. 2069–2071.
95 In reaching this conclusion, I note the lack of testimony from the
“press area supervisor” who, according to their job descriptions, super-
vised both Morlan and Bradshaw. That supervisor could have testified
This testimony confirms that the only change in Morlan’s job
from Nova Flow was how he stored the ink formulas he cre-
ated—previously in writing and then electronically in Nova
Flow. It also confirms that Nova Flow automated Bradshaw’s
ink making/dispensing. Even Augustiniak described Nova Flow
as an “ink mixing machine” that would retain ink formulas and
allow dispensing of ink with a push of a button. Nonetheless,
Augustiniak contended the Nova Flow system rendered Mor-
lan’s job obsolete, even though he was not an ink dispenser.94 I
do not credit that testimony and find Nova Flow eliminated
Bradshaw’s job. As a result, the Respondent’s asserted reason
for laying off Morlan is a pretext, meaning it cannot sustain its
Wright Line burden. The permanent layoff of Morlan likewise
violates Section 8(a)(3).95
Moving on to the Respondent’s initial failure to recall Nichols
from her temporary layoff, I find no violation of the Act oc-
curred. As described above, the General Counsel has met the
initial Wright Line burden regarding Respondent’s adverse ac-
tions against Nichols. However, the Respondent demonstrated
that it would not have recalled Nichols from the temporary
layoff, even absent her union activity. Johnson’s credited testi-
mony establishes that Rutt made a mistake when not recalling
Nichols. Rutt had laid her off as a treater operator, but then mis-
takenly treated her as an extrusion operator for purposes of the
recall. Rutt caught the mistake and advised Johnson of it at a
time when the Union was unaware Nichols had not been recalled.
The Respondent then fully reimbursed Nichols for the mistake,
including agreeing to her request to include overtime pay when
reimbursing her for lost wages. Because Rutt’s action was a mis-
take, it would have occurred with or without Nichols’ union ac-
tivity.
V. THE RESPONDENT’S CHANGES TO WORK SCHEDULES AND
SENIORITY PREFERENCES IN JANUARY 2018
FINDINGS OF FACT
The Respondent’s downturn in business during the first half
of 2017 was short lived. In September, the Respondent learned
that it could be awarded a large contract from National Beef. On
October 12, Rutt emailed Johnson prior to their scheduled
weekly meeting to advise him of Rutt’s desire to discuss “both
near term and long term challenges” to the expected National
Beef contract. Rutt identified “staffing and scheduling” as
longer-term challenges, then stated specifically that the Re-
spondent expected to “need to operate the entire facility 24/7 in
order to meet the orders resulting” from the contract. Rutt fur-
ther stated to Johnson that he would like to “begin discussions
with [Johnson] over how and when we would move to 24/7, how
we would structure shifts and the manner in which we would
staff those shifts.” At this time, the employees in the finishing
and press departments worked traditional 8-hour days and 40-
hour workweeks. Employees in the extrusion department al-
ready were on a 24/7 schedule with 12-hour shifts. At their
concerning the job duties of both employees before and after Nova Flow.
Bradshaw also was absent from the hearing, despite his being aligned
with the Respondent in opposition to employees being represented by the
Union. I do not, however, draw any adverse inferences as a result.
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meeting that day, Johnson asked Rutt for options besides 12-hour
shifts when the Respondent went to a 24/7 schedule. Rutt re-
sponded that he would set up a meeting with himself, Johnson,
interim plant manager Randy Flynn (who replaced Augustiniak),
and employees to discuss alternatives. Rutt told him he would
not do anything with the schedules until after the sit down.96
At some point between October 12 and November 3, Rutt re-
signed his employment and Michael Livingood took over as the
Respondent’s human resources manager in Centerville. On No-
vember 8, Livingood met with Johnson at the Respondent’s fa-
cility in Des Moines. Livingood raised the need to change em-
ployees shifts when the Respondent went to a 24/7 schedule.
Johnson proposed the Respondent keep 8-hour shifts and adopt
a continuous operation model being used at the Des Moines fa-
cility. Livingood told him he would take the idea back to his
management team. Livingood and Johnson also discussed the
shift-bidding process to fill four open positions in the extrusion
department. They agreed to use department seniority. After the
meeting, Livingood sent Johnson an email summarizing their
meeting discussion. He detailed four steps for filling open ex-
trusion operator positions. The first step was that shift prefer-
ence would be based upon department seniority. He also stated
that Johnson had requested 8-hour shifts on a continuous opera-
tion like in Des Moines when Respondent went to 24/7 opera-
tions in Centerville. On November 9, Johnson responded to Liv-
ingood’s email. Johnson stated: “The steps for filling open op-
erator look good.” As to the 24/7 schedule, Johnson told Liv-
ingood the Union was not asking for the Des Moines model ex-
actly, but a different model than going to 12-hour shifts.97
On November 14, Livingood sent an email to Johnson to “fol-
low up on our conversations and email exchanges last week on
the 24/7 schedule in addition to our process for open positions.”
The email continued with a section entitled “Filling Open Posi-
tions.” The text thereafter was the same four step process con-
tained in Livingood’s November 8 email, except all references
to Extrusion Operator were eliminated. Livingood explained the
change to Johnson by saying: “We intend on using this process
for filling open jobs associated with the National Beef Crew up
as well.” As a result, department seniority would be used for
employee shift preference selection. Livingood stated the Re-
spondent “believes this outlined process is consistent with the
language the parties have been negotiating” in bargaining for an
initial contract. Regarding the 24/7 continuous operation, Liv-
ingood advised Johnson that the Respondent rejected his
96 Tr. 290–292, 1629–1634; GC Exh. 410, p. 2. I credit Johnson’s
testimony about his discussion with Rutt on October 12. Zaputil corrob-
orated the testimony and Rutt did not testify about this meeting.
97 Tr. 1637–1640, 1986–1994; GC Exhs. 411, 412. I do not credit
Johnson’s testimony that he reiterated to Livingood his request for a
meeting with Flynn and employees to discuss different options for work
shifts in a 24/7 operation. Zaputil did not corroborate that testimony and
Livingood made no mention of it in his summary of their discussion.
98 GC Exh. 414. In contract negotiations around this time, the Re-
spondent and the Union both proposed using department seniority for
shift preference, even though it previously had been done using plant
seniority. (GC Exhs. 816, 823, 832.)
99 Tr. 1697–1700, 1996–2002; GC Exh. 414, p. 4. In making the
findings of fact about the discussions between Livingood and Johnson
“suggestion” of implementing 8-hour work shifts. Livingood
stated the Respondent “will be moving forward” with a 12-hour
shift schedule and included schedules for employees in each de-
partment. Livingood concluded: “Our intent is to post these
schedules by November 20, 2017, effective January 1, 2018.”98
Later that same day, Livingood and Johnson spoke by phone,
with Zaputil and other representatives on both sides present. The
two again discussed the extrusion support operators and how to
move people back into that position using department seniority.
Following the meeting, Livingood and Johnson spoke twice on
the phone one-on-one the same day. Johnson suggested moving
forward with the National Beef scale up using the same process
they had been discussing for the open extrusion operator posi-
tions, as Livingood had proposed. Johnson said they could see
what problems, if any, arose using that process and address them
at that time. Livingood followed up with a second email to John-
son summarizing their discussions that day. Livingood thanked
Johnson for offering his suggestion for the National Beef scale
up. He also reiterated that the Respondent would move to a 24/7
operation effective December 31, and would begin canvassing
employees for their preferred shifts using the four-step process
they previously agreed to for the open extrusion operator posi-
tions. Johnson read both of Livingood’s emails the evening of
November 14.99
On November 15, the Respondent announced to employees
that the Centerville plant would be moving to a 24/7 operation.
The announcement also set forth the four-step process to which
Livingood and Johnson agreed, and stated shift preference would
be determined by department seniority. Livingood gave Zaputil
a copy of the announcement. On the same date, the Respondent
began canvassing employees for their preferred new shifts from
the options outlined in Livingood’s morning email to Johnson on
November 14. In a sidebar during contract negotiations that day,
Johnson asked Livingood when they were going to get their
meeting with the plant manager and employees to go over shift
options for the 24/7 operation. Livingood reiterated that the Re-
spondent was going forward with 12-hour shifts plant wide. Nei-
ther Johnson nor Zaputil said anything to Livingood about using
department seniority for employee shift selection.100
At a second sidebar around the end of November, Johnson told
Livingood the Union was getting blowback from some employ-
ees, because the Respondent was using department seniority in-
stead of plant seniority for the shift preference canvass. Johnson
proposed that the Respondent reset department seniority to plant
on November 14, I do not credit Johnson’s testimony that the only matter
the two discussed was the process for filling the open extrusion operator
positions. In doing so, I rely upon Livingood’s contemporaneous docu-
mentation detailing their discussions, which is the best evidence. Both
Johnson and Livingood provided sometimes vague and uncertain testi-
mony on this subject. Moreover, Johnson did not address or testify about
his subsequent calls with Livingood. I find it inherently improbable that
Livingood would not have discussed expanding the process for filling
extrusion operator positions to the entire National Beef scale up, because
he specifically mentioned that topic in the email he sent to Johnson that
morning before those discussions.
100 Tr. 292–293, 1646, 2003–2007; R. Exh. 20.
BEMIS COMPANY, INC. 37
seniority for shift selection, then use department seniority going
forward. On December 12, Livingood rejected the proposal to
use plant seniority for employee shift selection. Livingood cited
the fact the Respondent already had canvassed and started as-
signing employees to new shifts using department seniority.101
In late November following the shift preference canvass, Liv-
ingood met with Zaputil and employees on restricted, 8-hours-
per-day work schedules. He told the employees that, when the
Respondent moved to 12-hour shifts, they would be working 4
days in the first week and 3 days in the second week. They
would be assigned to a 12-hour shift, but only work 8 hours on
those days. Thus, their hours would be reduced from 80 to 56
every 2 weeks. Zaputil asked why the employees could not just
work a straight, 40-hour-a-week schedule without being as-
signed to a specific shift. Livingood told her that would be fa-
voritism. Before announcing this to the employees, Livingood
had not discussed it with Johnson or Zaputil. Subsequently on
December 14, Livingood spoke to Johnson about the restricted
employees. Livingood said only that the Respondent would not
force them to work more than 8 hours a day or 40 hours a week
and that they could sign up for extra shifts to make up for the
hours they had lost. Once the restricted employees started to
work their new schedules, the Respondent required them to call
into its payroll system each day they worked and report being
absent for four out of the 12-hours of the shift they were not
working.102
On December 31, the Respondent implemented 12-hour shifts
for all employees at the Centerville facility.
LEGAL ANALYSIS
A. Did the Respondent’s Changes to Employees’ Work
Schedules Violate Section 8(a)(5)?
(Complaint Paragraph 14(f))
The General Counsel’s complaint alleges the Respondent uni-
laterally announced altered work schedules for employees from
primarily 5-days-per-week, 8-hours-per-shift to continuous op-
erations 7-days-per-week, 12-hours-per-shift on November 15,
then unilaterally implemented those changes on January 1, 2018.
Employees’ work schedules are a mandatory subject of bar-
gaining. See, e.g., Green Apple Supermarket of Jamaica, Inc.,
366 NLRB No. 124, slip op. at 22–23 (2018); Indiana Hospital,
315 NLRB 647, 655–657 (1994). Thus, the same unilateral
change framework described above applies to this allegation.
The Respondent could not change employees’ work shifts from
8 hours to 12 hours or their number of workdays per pay period
from 10 to 7, without providing the Union notice and an oppor-
tunity to bargain.
The Respondent first notified the Union of the move to 24/7
operations and the need to “begin discussions” over the structur-
ing and staffing of shifts on October 12. After being notified,
101 Tr. 327–328, 1702–1704, 2009–2013; GC Exh. 416.
102 Tr. 37–38, 99–107, 294–296, 2013–2015.
103 The Respondent’s other arguments on this issue likewise lack
merit. First, the Respondent claims the parties repeatedly discussed the
need to move to a continuous shift operation. But the General Counsel’s
complaint does not allege that the move to a 24/7 schedule was unlawful,
only the move to 12-hour shifts. A 24/7 operation is not limited to oper-
ating 8- or 12-hour shifts. Second, the Respondent again argues that its
Johnson asked Rutt on that date for options besides 12-hour
shifts. They agreed to a meeting with the plant manager and em-
ployees to discuss those options. After Rutt resigned his em-
ployment, Livingood next discussed the potential new shifts with
Johnson on November 8. On that date, Johnson proposed staying
with 8-hour shifts and adopting a continuous operating model
used in Des Moines. The next day, Johnson clarified that the
Union was amenable to any different model that did not involve
12-hour shifts. On November 14, the Respondent rejected the
Union’s request to stick with 8-hour shifts. Livingood told John-
son the Respondent would be moving forward with 12-hour
shifts, begin canvassing employees for their shift preferences
within a week, and implement the new schedules at the begin-
ning of the following year.
Against this factual backdrop, the Respondent argues it met
the bargaining obligations it had over the shift schedule changes.
I do not agree. To begin, the Union never agreed to 12-hour
schedules. Johnson continually objected to that model and asked
for alternatives. Despite the lack of agreement, the Respondent
announced to the Union on November 14 that it was going to 12-
hour schedules and provided the new schedules it intended to
use. Prior to then, the parties met only two times, on October 12
and November 8. The Respondent rejected one proposal John-
son made involving 8-hour schedules and called it a day on bar-
gaining. It did so some 6 weeks prior to when it intended to
move to a 24/7 operation. That left plenty of time to continue
negotiations, albeit with greater urgency than the Respondent
had displayed to that point. After rejecting Johnson’s call for
some form of 8-hour shifts, the Respondent did not make any
counterproposals. Instead, it simply advised the Union it was
moving forward with 12-hour shifts and began canvassing em-
ployees for their shift preferences. Once again, the Respondent
merely informed the Union of what it would do, presenting the
change as a fait accompli. In any event, because contract nego-
tiations were ongoing, the Respondent was not free to implement
the schedule changes absent the Union’s consent.
The impact of the Respondent’s unilateral change on the af-
fected employees’ day-to-day lives was pronounced. Instead of
working 8 hours a day, 5 days a week, they now were required
to work 12 hours a day, 3 days the first week and 4 days the next.
Before implementing such a drastic change to their work lives,
the law required the Respondent to provide the employees’ bar-
gaining representative with a meaningful opportunity to bargain.
These facts do not come close to establishing the Respondent did
so. Accordingly, I conclude the Respondent violated Section
8(a)(5) when it unilaterally changed employees’ work schedules
from 8 to 12-hour shifts and from 10 workdays to 7 per pay pe-
riod.103
I find the Respondent’s unilateral change to the schedules of
restricted employees likewise violates Section 8(a)(5). The
change was permissible under Raytheon, because it had an established
past practice of changing employees’ work schedules. The only evidence
relied upon by the Respondent in that regard is that extrusion department
employees already were working 12-hour shifts. The Respondent of-
fered no evidence concerning how those employees came to be working
those shifts. This showing again falls well short of establishing a past
practice.
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
record evidence establishes that Livingood told the employees
about the changes to their schedule at the end of November, with-
out previously mentioning it to Johnson or Zaputil. Moreover,
when he got around to discussing it with Johnson 2 weeks later,
Livingood did not offer to bargain over it, but merely informed
him of the Respondent’s plan of action. Any objection made by
the Union on either date would have been futile. The Respond-
ent provided the Union with no meaningful opportunity to bar-
gain over this change either, which resulted in the affected em-
ployees having their work hours reduced by 30 percent. This
unilateral change also was unlawful.104
B. Did the Respondent’s Change in Seniority Preferences for
Shift Bidding Violate Section 8(a)(5)?
(Complaint Paragraph 14(g))
The General Counsel’s complaint also alleges that the Re-
spondent unilaterally announced changes to its seniority prefer-
ence policies for shift bidding on November 15, then unilaterally
implemented those changes on January 1, 2018. The allegation
is premised upon the Respondent utilizing department seniority,
rather than plant seniority, to determine which shifts employees
would be assigned, once the plant moved to a 24/7 operation.
Like work schedules, seniority is a mandatory subject of bargain-
ing. See, e.g., The Sheraton Anchorage, 363 NLRB No. 6, slip
op. at 34 (2015); L & L Wine and Liquor Corp., 323 NLRB 848,
852–853 (1997).
The analysis of this complaint allegation requires a determi-
nation as to whether the Respondent and the Union reached
agreement to use department seniority for shift bidding. I find
that they did. On November 9, Johnson agreed to Livingood’s
proposal to use a four-step process for open extrusion operator
positions. One of the steps was that employees would choose
their shift preference by department seniority. On November 14,
Livingood proposed expanding that process to employees’ selec-
tion of shifts for the National Beef scale up. Based upon my
credibility determination described above, Johnson agreed to
that proposal that same day and said the parties could address
any issues with implementation as they arose. The local agree-
ment to use department seniority was consistent with the Union’s
and the Respondent’s proposals in contract negotiations at that
time. After complaints from some employees to the use of de-
partment seniority, Johnson sought to change the agreement ap-
proximately 2 weeks later. Nonetheless, having already reached
104 The General Counsel did not specifically advance this theory of a
violation. The complaint allegation on this issue states: “About Novem-
ber 15, 2017, Respondent announced altered schedules of employees
from primarily 5-days-per-week, 8-hours-per-shift, to continuous opera-
tions 7 days a week on 12 hour shifts and implemented the changes on
about January 1, 2018.” I find the allegation language sufficiently broad
to encompass the change to the restricted employees’ work schedules.
Even if it was not, the requirements to find an unalleged violation are
met, because the issue is closely connected to the subject matter of the
complaint and was fully litigated by the parties. Pergament United Sales,
296 NLRB 333, 334–335 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). As
to the first requirement, the unilateral change to restricted employees’
workdays and shifts is closely related to the complaint allegation, be-
cause the change occurred as part of the move to a 24/7 operation, 7 days
a week. As to the second, the General Counsel elicited testimony on this
issue from employee Ruth Husted, Lowe, and Zaputil. (Tr. 37–38, 99–
an agreement, the Respondent was entitled to reject Johnson’s
proposal. Accordingly, I find the Respondent did not violate
Section 8(a)(5) in this regard and recommend dismissal of this
complaint allegation.
VI. BARGAINING BETWEEN THE RESPONDENT AND THE UNION FOR
A FIRST CONTRACT
A. Did the Respondent Fail to Meet with the Union at Reason-
able Times, in Violation of Section 8(d) and 8(a)(5)?
(Complaint Paragraph 16(b))
FINDINGS OF FACT
The Respondent and the Union began bargaining for an initial
Centerville contract on August 23, 2016. At the time of the hear-
ing in August 2018, the parties had not reached an agreement,
but negotiations remained ongoing. As of April 26, 2018 (the
date the General Counsel issued the complaint), the parties had
reached a total of only eight tentative agreements on the follow-
ing subjects (with the date the agreement was reached): recogni-
tion (November 1, 2016), probationary period (January 18), em-
ployee safety (April 2), labor agreement (May 3), leave of ab-
sence for union business (June 14), general leave of absence
(September 13), grievance and arbitration procedure (April 16),
and seniority (April 18, 2018).105
The Respondent’s chief negotiator is John Haberman, the as-
sociate general counsel for litigation and labor/employment. Ha-
berman has been employed by the Respondent for 18 years. He
reports to the Respondent’s general counsel and to its chief hu-
man resources (HR) officer. His job duties are “high level” and
include managing global litigation, counseling the HR group on
employment and labor issues, and managing labor relations. He
supervises three “direct reports:” the director of labor relations,
a litigation attorney, and a paralegal. The labor relations director
handles the day-to-day labor relations work, including typically
contract negotiations. Haberman works from the company’s
headquarters in Neenah, Wisconsin, more than 400 miles from
Centerville.
The Union’s chief negotiator has been Philip Roberts, an in-
ternational representative of the Graphic Communications Con-
ference of the International Brotherhood of Teamsters. He has
been in that position for 30 years. Roberts frequently negotiates
contracts on behalf of local unions affiliated with the interna-
tional. He has done so between 250 and 300 times. Roberts is
107, 294–296.) The Respondent’s counsel cross examined Lowe and
Husted and questioned Livingood about the issue. (Tr. 79–80, 115–119,
2014–2015.) That latter testimony all went to the Respondent’s position
that it continued to honor the restricted employees’ limitation to 8 hours
of work per day. Furthermore, Livingood’s testimony establishes the
violation, because it is insufficient to demonstrate the Respondent pro-
vided notice and an opportunity to bargain over the schedule changes.
Because it questioned multiple witnesses on this issue, the absence of
this allegation from the complaint did not prejudice the Respondent.
Kankakee County Training Center for the Disabled, Inc., 366 NLRB No.
181, slip op. at 3–4 (2018) (finding allegations closely connected and
matter fully litigated, where allegations shared the same issue and facts
and a respondent witness provided essential details to finding the unal-
leged violation).
105 GC Exh. 522.
BEMIS COMPANY, INC. 39
stationed near Nashville, Tennessee, almost 600 miles from Cen-
terville. The closest major metropolitan area to Centerville is
Des Moines, Iowa, a little under 100 miles away. Roberts at-
tended all the sessions and Haberman attended all but the first
two days. The two did almost all the talking in those meetings.
The Union’s bargaining team included Johnson and Zaputil. At
various times, it also included Debbie Bullock, a Centerville em-
ployee who also served as the local union’s secretary/treasurer,
and Elizabeth Nichols, until she left the Respondent’s employ.
The Respondent’s team typically included whomever was the
Centerville plant manager at the time, as well as both local and
corporate human resources representatives.106
1. Bargaining Sessions During the Union’s Certification Year
Following the Union’s certification on May 13, 2016, Roberts
emailed on June 8, 2016 a request for bargaining and for infor-
mation to Amy Foran, then the Respondent’s director of labor
relations. Foran initially was going to handle the negotiations
for the Respondent. On June 13, 2016, the two agreed that the
first bargaining sessions would take place on August 23−24,
2016, and September 14−15, 2016, in Centerville. Negotiations
took place at two different hotels near the Respondent’s facility.
Although no formal ground rules were adopted, bargaining days
typically began at 9 a.m. and ran until 5 p.m.107
The parties’ first negotiation sessions took place as scheduled
on August 23−24, 2016. Thereafter, the Respondent asked to
reschedule the September 14-15, 2016 bargaining dates. Haber-
man had met with Foran after the bargaining dates in August and
decided she had too much on her plate to handle the Centerville
negotiations. Haberman himself took over the negotiations for
the Respondent.108 The parties did not meet again until Novem-
ber 1, 2016, approximately 10 weeks after the initial dates. The
two sides met for three full days, the only time they would meet
for that duration. At the end of negotiations on November 3,
Haberman and Roberts discussed the diminishing returns from
bargaining on the third day. Due to the cancelled September
2016 dates, Roberts also asked to meet more frequently than
once a month. They agreed to the following bargaining dates
going forward: November 29 (half day)-30, 2016; December
20−21, 2016; January 17−18; and February 7−8. Those sessions
all took place except January 17, which the parties agreed to can-
cel due to a snowstorm.109
At the end of bargaining on January 18, Roberts sent Haber-
man an email proposing three-day bargaining sessions in 4 con-
secutive weeks in February and March. At the time, the parties
already had scheduled February 7−8 for bargaining. Haberman
responded that, other than the two previously scheduled dates,
February and early March were “bad.” Haberman instead pro-
posed March 8, as well as March 29 and 30. When Roberts asked
to tack on an additional day to March 8, Haberman declined and
noted that one member of the Respondent’s bargaining team was
106 Tr. 867–869, 884–889, 2110–2115, 2121–2123. I take adminis-
trative notice of the distance between the various locations from Google
maps (https://www.google.com/maps). Bud Antle, Inc., 359 NLRB
1257, fn. 3 (2013), reaffd. 361 NLRB 873 (2014).
107 Tr. 2194–2195.
108 Foran left the company in mid-2017 and the director of labor rela-
tions position remained vacant until mid-2018. While that position was
not even available for March 8. Roberts responded: “Let me
know about the dates as soon as you can. I have to believe there
are other dates we can secure over the span of time we offered.”
Haberman did not respond.110
At the February 8 bargaining session, Roberts told Haberman
they could meet every week to get a contract done. The parties
agreed to three, two-day bargaining sessions, one each in March
(previously scheduled), April, and May. However, at the time,
the next bargaining session was scheduled for March 29, 7 weeks
out. On February 10, Roberts sent an email to Haberman con-
firming the agreed upon dates and stating:
Additionally, you agreed to review your groups (sic) schedules
to add a third (or fourth) day to any or all of the above listed
dates. Please advise us at your earliest convenience on which
additional dates you can offer. Also, due to the difficulty of
coordinating dates among all the participants, we requested that
you review your schedules after the May 3rd date and offer
multiple additional dates that you are available to meet. We
hope you share our interest in completing this negotiation in a
timely manner. However, we are disappointed in the time
elapsing between the most recent scheduled dates and urge you
to advise us if other dates open up in your groups schedules.
Haberman did not immediately respond. On February 24, Rob-
erts emailed him again and noted he had not heard from Haber-
man about additional meeting dates. Haberman then sent a writ-
ten letter back to Roberts on February 27, telling Roberts his “in-
nuendo” that the Respondent was unnecessarily delaying nego-
tiations or obstructing progress on reaching an agreement was
“getting tiresome.” Haberman detailed the history of the parties’
bargaining dates. He noted the Union declined the Respondent’s
offer to meet on March 8, because the Union felt single days of
bargaining were not sufficiently productive to justify the travel
to Centerville. He concluded by saying the Respondent would
notify the Union, if it could add a third day to the scheduled ses-
sions in April and May. Haberman also offered to meet for two-
day sessions on May 31−June 1 and June 13−14. Roberts agreed
to the newly offered dates. The parties met as scheduled on
March 29−30, April 12−13, and May 2−3. At the May 2 meet-
ing, Haberman told Roberts that Foran was leaving the company
and Rutt would be replacing Bray as human resources manager.
When Roberts asked for additional bargaining dates, Haberman
said he would have to look at the dates after Rutt came aboard.111
On May 13, the Union’s certification year expired. In the 8½
months from August 23, 2016, until May 13, the parties negoti-
ated for a total of 18 days in nine different trips to Centerville.
Thus, they averaged approximately 2.1 days of bargaining each
month. Three trips and 6 days of bargaining occurred in the last
month preceding the end of the certification year. All of the
meetings in Centerville encompassed 2 days of bargaining, ex-
cept for the 3-day session at the beginning of November 2016
vacant, Haberman also handled two other contract negotiations in 2018.
(Tr. 2128.)
109 Tr. 929, 1414–1415, 2222–2223.
110 GC Exh. 521, pp. 48–52.
111 Tr. 960−961, 1031, 1035; GC Exh. 521, pp. 57, 63, 65–67.
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and the one-day session in January where an additional, sched-
uled day was cancelled due to a snowstorm. The longest time
between sessions was 10 weeks from August 24 to November 1,
due to Haberman replacing Foran as the Respondent’s lead ne-
gotiator. The second longest was 7 weeks from February 8 to
March 29, a period Haberman told Roberts was “bad” for avail-
able dates. However, Haberman offered March 8 as a bargaining
date which Roberts declined, feeling it was too expensive and
not a good use of time given the travel. The remaining bargain-
ing sessions occurred within 2 to 4 weeks of each other.
2. Bargaining Sessions from May 13, 2017, to April 26, 2018
After bargaining on June 1, the parties had only one future
session scheduled, for June 13 and 14. On June 2, they agreed
to bargain again on July 25 and 26. Roberts offered three addi-
tional sets of bargaining dates: June 27−29, July 6−7, and July
10−11. Haberman did not respond. On June 14 and July 14,
Roberts made additional requests for more bargaining dates to
Haberman, who again did not respond.112
At the end of bargaining on July 26, Haberman offered August
22−23, September 12−13, and October 10−11, all of which Rob-
erts accepted. After they agreed to these dates, Roberts asked
the same day for September 26−27 or September 27−28, and Oc-
tober 3−4 or October 4−5. Roberts said he thought it was “cru-
cial that we try to move this along.” Haberman did not respond
to that request. At the session on September 12, Roberts offered
the end of September dates again. The next day, he reiterated
that offer and also offered the full weeks of October 16, 23, 30,
and November 13. In doing so, Roberts stated: “As we dis-
cussed, we have been working for a year now to reach an agree-
ment and we should accelerate our availability so that we can
meet as often as we can in order to get this done.” Haberman
responded by agreeing to bargain November 15−16, as well as
offering November 29−30. Roberts accepted those dates and
asked for additional dates prior to then. On October 29, Roberts
emailed Haberman, noted the parties only had two confirmed
bargaining sessions going forward, and asked for dates from the
Respondent prior to the upcoming holidays.113
On October 31, a unit employee filed a decertification petition
with the Board.
On November 9, Roberts reiterated his October 29 request to
Haberman and asked for additional bargaining dates in Decem-
ber. Haberman responded the next day, referring to the upcom-
ing November 15−16 and 29-30 negotiation dates and stating:
“We have four days set aside in the next few weeks, 2 days be-
fore the holiday season and 2 days after the holiday season be-
gins. Additionally, I have a new negotiating team with recent
departures from Bemis Company. I propose we discuss addi-
tional dates after we see how the next few meetings proceed.”
Roberts responded the same day, telling Haberman “[r]espect-
fully, I disagree. I understand you have turnover on your com-
mittee, but dates are hard to nail down. Progress so far had (sic)
been very slow, and I do not anticipate that two more 2-day
112 GC Exh. 521, pp. 82, 85, 87.
113 GC Exh. 521, pp. 89–91, 113, 115–117, 138.
114 GC Exh. 521, pp. 139–142.
115 Haberman also testified generally that another reason the Respond-
ent gave the Union for not being available on requested bargaining dates
sessions will be sufficient. I would renew my request that we
agree to two more sets of dates in December.” Haberman re-
sponded the same day, stating: “I appreciate your position, how-
ever I am unprepared to provide dates at this time. If you would
like to propose dates, the Company will take them under advise-
ment. That being said, I am doubtful the Company will be pre-
pared to meet in December, much less twice in December.” Rob-
erts concluded the day’s back and forth by emailing Haberman
that he did not accept the idea that they could not meet in De-
cember. He told Haberman he could offer dates or make himself
available per Haberman’s schedule.114
On November 15 and 16, the parties met as scheduled. At the
end of the day on the latter date, Roberts again asked via email
if the Respondent had any bargaining dates to offer for Decem-
ber. Haberman replied: “The Company does not have any dates
to propose. If the union would like to propose dates, the Com-
pany will review the dates offered and respond whether it has
any availability. As mentioned in email to you last week, I am
doubtful the Company will have availability due to schedules
and the holidays.” That same day, Roberts offered the following
dates for future bargaining: December 12−13 or 13−14, Decem-
ber 19−20 or 20−21, and December 27−28. Getting no response
from Haberman, Roberts emailed him again on November 21
and asked for two sets of dates of two to three days in January.
Haberman responded the next day, reiterating to Roberts that
“[w]ith respect to December, the Company is unavailable on the
dates you provided . . .principally due to work schedules, but also
due to vacations scheduled over the last week of December.”
Haberman himself had to travel to Brazil for a full week for
work, then was out a 2nd week that month for different contract
negotiations.115 On November 27, Haberman sent an additional
email to Roberts, in which he again detailed the parties’ bargain-
ing dates history, this time for all of 2017. Haberman noted the
Respondent offered two separate sets of dates in November “in
anticipation that its December schedule would preclude a meet-
ing opportunity in December.” Haberman pledged that the Com-
pany would continue to meet with the Union regularly in 2018.
He also suggested to Roberts that, “[r]ather than focus on putting
dates on the calendar, the Company recommends that the union
focus instead on making the most of our scheduled meetings and
that it be prepared for the times we schedule, including having
proposals ready and being prepared to discuss those proposals.”
Roberts responded the next day, telling Haberman the Union be-
lieved a more intensive schedule was required to reach an initial
agreement.116
The Respondent and the Union bargained again on November
29 and 30. Near the end of the session, Haberman emailed Rob-
erts and told him the Company was available to meet on January
10−11, 2018. Roberts agreed to those dates, while asking if they
could bargain for three days and if Haberman had another set of
January dates to offer. In response, Haberman wrote:
The Company proposes the parties wait to see the progress
was the unavailability of either the plant manager or human resources
manager. (Tr. 2228–2229.) He noted the two managers had quarterly
management meetings at headquarters.
116 GC Exh. 521, pp. 156–162.
BEMIS COMPANY, INC. 41
made over the rest of today and during our next two sessions in
January before setting additional negotiation sessions. If the
union would like to offer other dates, the Company will con-
sider the dates offered however this is to advise you that I pres-
ently have the two weeks following our next two sessions held
for other matters that require my attention. With respect to fu-
ture dates and your suggestion to consider three days in a row,
I remind you of the parties’ earlier concerns about stringing to-
gether more than two days in a row based on the diminishing
returns of additional days beyond the second day. If you are
interested in reconsidering that earlier position, the Company
request (sic) that you also reconsider your earlier reluctance to
meet on single days.
Roberts responded the same day and agreed to meet on a couple
of single, additional days in January, if that was the only way the
Respondent could meet.117
The parties met on January 10 and 11, 2018, as scheduled. As
had become routine at this point, Roberts emailed Haberman
near the end of the session asking to get additional dates for fur-
ther bargaining. Roberts noted that his schedule was flexible for
the remainder of January and February. He asked Haberman to
provide as many dates as possible, so they could get the contract
resolved. Haberman responded the same day, offering February
1−2, 2018, and February 19−20, 2018, which Roberts ac-
cepted.118
After the first February session, Roberts sought to schedule
additional dates beyond the ones then on the books. Haberman
again replied that, if the Union had dates to offer, the Respondent
would review them and respond. He also said that, without plant
manager Randy Flynn available at that time, he could not provide
any certain dates. Roberts responded by offering the following
3- and 4-day periods: February 28, 2018−March 2, 2018; March
5−9, 2018; March 12−16, 2018; March 21−23, 2018; and March
26−28, 2018. Haberman replied on February 7, 2018, agreeing
to March 15−16. Haberman did not accept any additional dates,
because he had to attend the Respondent’s global leadership con-
ference during 1 week and a continuing legal education confer-
ence in another week. He followed up via email on February 12,
telling Roberts that the Respondent did not have dates to offer at
that time, but would be prepared to discuss them when the parties
met to bargain the following week.119
Near the end of the bargaining day on February 20, 2018, Rob-
erts emailed Haberman, noted that March 15−16, 2018, were the
only bargaining dates scheduled, and asked for additional dates
the Respondent was available. He again noted the Union was
willing to bargain for three consecutive days. Haberman
117 GC Exh. 521, pp. 164–166.
118 GC Exh. 521, pp. 191, 193, 195.
119 GC Exh. 521, pp. 219–224; Tr. 2226–2228. Haberman testified
that, in mid- to late-2017, he developed a habit of telling the Union he
did not have any specific dates to provide when Roberts asked generally
for dates, and instead asked Roberts to provide him with specific pro-
posed dates for bargaining. (Tr. 2219–2220.) Haberman said he did this
“for a variety of reasons,” but did not say what those reasons were.
120 GC Exh. 521, pp. 235, 238, 240, 244–245.
121 Tr. 2222–2223.
122 In finding that the parties bargained for 42 days during the alleged
time period, I rely on the Respondent’s and the Union’s
responded the same day, offering a two-day period made up of
half days on April 16 and 18, 2018, as well as a full day of bar-
gaining on April 17, 2018. Roberts accepted the offer, while also
asking that the Respondent schedule other dates earlier than
those April dates and noting his prior offer of numerous March
dates. On February 27, 2018, Roberts renewed his request for
more dates prior to April 16, 2018. On March 3, 2018, Haber-
man responded and said: “I was out of the office all last week
with limited access to email. In response to your email . . ., the
Company continues to be available March 15-16 but is not avail-
able on the other March dates provided by the Union.”120
In the 11½ months from May 13, 2017, when the Union’s cer-
tification year ended to April 26, 2018, the Respondent and the
Union bargained for a total of 26 days during 13 different trips
to Centerville. Thus, they bargained for an average of 2.3 days
per month. All of the sessions included 2 days of bargaining.
The Respondent did not agree to any of the Union’s requests for
3-day bargaining sessions, because of Haberman’s concern
about diminishing returns and because it was “very difficult” for
Haberman to find a full week where he could be out of the office,
given the additional two days of travel to get to Centerville.121
The periods of time between trips ranged from 2 to 6 weeks.
LEGAL ANALYSIS
The General Counsel’s complaint alleges the Respondent vi-
olated Section 8(d) and 8(a)(5) by refusing to meet with the Un-
ion at reasonable times from November 1, 2016 through April
26, 2018, the date the complaint in this case issued.
Section 8(d) of the Act requires that an “employer and the rep-
resentative of the employees . . . meet at reasonable times and
confer in good faith with respect to wages, hours, and other terms
and conditions of employment. . . .” The Board considers the
totality of the circumstances when determining whether a party
has satisfied its duty to meet at reasonable times. Garden Ridge
Management, Inc., 347 NLRB 131, 132 (2006), citing to Calex
Corp., 322 NLRB 977, 978 (1997), enfd. 144 F.3d 904 (6th Cir.
1998).
By any objective measure, the number of times the Respond-
ent and Union have met to bargain is substantial. During the 18-
month period in question, the Respondent and the Union bar-
gained for 42 days during 21 trips to Centerville.122 The parties
averaged 1.2 trips to Centerville and 2.3 days of bargaining per
month.
However, the reasonable times inquiry is not limited solely to
an examination of the number of sessions held and the totality of
the circumstances here paints a much different picture. First and
contemporaneously written bargaining notes, both of which were orga-
nized by date. (GC Exh. 520; R. Exh. 24.) The Respondent repeatedly
claims the parties met 55 or 56 times from August 2016 to April 2018,
even though the total was 44 days. The Respondent cites to a comment
in the General Counsel’s opening statement and a statement by Roberts
in response to an unrelated question. (R. Br., pp. 3, 79, 84, 97, 99, 101,
105; Tr. 13, 1206.) Stating something repeatedly does not make it so.
The General Counsel’s opening statement is not evidence. Moreover,
Roberts did not specify the time period covered by his assertion that 55
or 56 meetings occurred. The parties continued to bargain after the issu-
ance of the complaint in this case, which may account for the inflated
figure.
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
foremost, the parties are reaching tentative agreements at a gla-
cially slow pace. For all that bargaining, the Respondent and the
Union have signed off on only eight tentative agreements. The
majority address minor subject matters and/or involve minimal
text. Prior to the end of the certification year, the parties agreed
to provisions on union recognition (which already was mandated
by the Board election), a probationary period for new employees,
safety, and a “labor agreement” stating the contract was between
the Respondent and the Union. In the second year of bargaining,
they agreed to leaves of absence for union business, general
leaves of absence, grievance and arbitration, and seniority. The
seniority provision defines the term, but does not address how
seniority will apply, if at all, to layoffs, transfers, or other job
actions. The grievance and arbitration provision sets forth the
procedure to be followed. It does not include a process for dis-
ciplining employees. It also does not include just cause or any
other standard by which employee discipline is to be evaluated
by an arbitrator. Not one of the tentative agreements addresses
economics. Thus, while at first glance 2.3 bargaining dates a
month appears sufficient to meet the statutory requirement, the
average is cast in a different light given the inconsequential pro-
gress the parties have made towards reaching a whole agree-
ment.123 The Board has found an employer failed to meet at rea-
sonable times in circumstances where the parties made signifi-
cantly greater progress than has been made here. See Garden
Ridge Management, supra at 131–132 (parties met 20 times in
11 months and reached 28 tentative agreements); Calex Corp.,
supra at 978 (parties met 19 times in 15 months and reached
agreement on 75 percent of the contract).
Given this lack of productivity, the need for a more aggressive
bargaining schedule is obvious. Recognizing this, Roberts re-
peatedly asked Haberman to add bargaining dates, either 2-day
sessions or more days to already-scheduled sessions. He repeat-
edly noted the slow progress of the negotiations. Yet, at every
turn, the Respondent rejected those requests. The communica-
tion back and forth between Roberts and Haberman regarding
additional dates establishes that, overall, the Respondent was
willing to meet with the Union only once per month for 2 days.
It also establishes that Haberman did not want to schedule future
bargaining dates until the parties were at or near the end of their
already-scheduled sessions. When Roberts asked for more dates,
Haberman often did not respond, told Roberts he did not have
dates to offer but invited Roberts to propose dates, or offered one
session of 2-days further out from whatever the last scheduled
dates were at the time.
Moreover, the parties held only one, 3-day bargaining session
at the beginning of negotiations. The Respondent thereafter re-
fused to bargain for more than 2 days at a time. Although it ap-
pears the Union initially agreed a third session day was not pro-
ductive, Roberts began requesting 3-day sessions 5 months into
negotiations, thereby indicating he had changed his mind.
123 I also note Haberman was verbose when testifying at the hearing,
a speaking style that is reflected in his own notes of the bargaining dis-
cussions. (R. Exh. 24.) Haberman acknowledged he spoke “a little bit
more in depth” during negotiations. (Tr. 2206.) Roberts stated that Ha-
berman sometimes “would take off on quite extended discussions of dif-
ferent subjects” when bargaining. (Tr. 957–958.) Haberman’s speaking
Haberman said he would consider going to 3-day bargaining ses-
sions, but only if the Union would agree to also meet on single
days. He did not explain why. The undesirability of travelling
2 days to get to and from Centerville to meet for one bargaining
day is readily apparent. Furthermore, even if a third bargaining
day resulted in diminishing returns, the progress still would be
greater than not meeting at all. Haberman otherwise provided no
explanation as to why a third day could not be added to the bar-
gaining sessions.
As to the reasons for not agreeing to more dates, Haberman at
first rarely offered any explanation, other than to say dates were
“bad.” Towards the tail end of the two-year period when the
Union’s requests for more dates increased, Haberman told Rob-
erts work schedules and holidays prevented further meetings; he
was unavailable because of other matters which required his at-
tention; he had been out of the office and could not respond; or
members of his negotiating team were new or unavailable. Ha-
berman is in a high-level position with the Respondent and had
numerous job duties occupying his time. He undoubtedly had
difficulty finding more than one 2-day period to negotiate this
contract per month. But the “busy negotiator” defense to an al-
legation that a party failed to meet at reasonable times long has
been rejected by the Board.124 See, e.g., People Care, Inc., 327
NLRB 814, 825 (1999), citing to Lawrence Textile Shrinking
Co., 235 NLRB 1178, 1179 (1978).
In sum, the Respondent’s repeated refusal to agree to addi-
tional bargaining dates likewise supports a finding that it failed
to meet at reasonable times. See, e.g., Regency Service Carts,
Inc., 345 NLRB 671, 672–673 (2005) (despite 29 bargaining ses-
sions in 32 months, employer failed to meet at reasonable times,
in part due to consistent refusal to agree to dates offered by the
union and preferring to meet after the last date provided by the
union); Lancaster Nissan, Inc., 344 NLRB 225, 227–228 (2005)
(employer turned deaf ear to union’s repeated requests for addi-
tional meetings and would schedule no more than two meetings
per month); Garden Ridge Management, supra (employer re-
jected without explanation eight requests from a union to meet
more frequently); People Care, supra (employer’s negotiator
available only once per month and refused to set times for future
meetings in advance, saying he could only agree on a date at the
next session).
To defend against this allegation, the Respondent principally
relies upon the sheer number of bargaining dates, but that num-
ber, standing alone, is not dispositive. The Respondent also
notes that both Roberts and Haberman acknowledged the diffi-
culties of negotiating a first contract and having to travel to and
from Centerville for bargaining. That a first contract typically
requires greater effort to reach agreement means the parties must
be open to the need for additional bargaining dates, not locked
into a particular number of days per month as the Respondent
was here. Moreover, like the busy negotiator defense,
style likely contributed to the parties’ lack of productivity, which also
supports the conclusion that 2.3 bargaining days a month was insufficient
to meet the statutory requirement in the circumstances of this case.
124 The Respondent concedes that it often could not accommodate the
Union’s requests for additional days of bargaining, due to “competing
work schedules, vacations, and holidays.” (R. Resp. Br., p. 28.)
BEMIS COMPANY, INC. 43
geographic inconvenience does not take precedence over the
statutory demand that the bargaining process take place with ex-
pedition and regularity. Caribe Staple Co., 313 NLRB 877, 893
(1994).
The Respondent arbitrarily limited bargaining to an average
of 2 days per month, despite reaching only eight tentative agree-
ments in 1½ years and leaving almost all of the significant issues
outstanding. It steadfastly refused the Union’s repeated requests
for more bargaining dates. The Respondent either offered no ex-
planation or the “busy negotiator” defense for its refusals to meet
more often. As a result, the Respondent violated Section 8(d)
and 8(a)(5) by failing to meet at reasonable times to reach a first
contract.125
B. Did the Respondent Engage in Surface Bargaining in
Violation of Section 8(a)(5)?
(Complaint Paragraph 16(c))
FINDINGS OF FACT126
1. The Initial Bargaining Sessions
At the opening meeting on August 23, 2016, the Union pre-
sented a partial, non-economic proposal to the Respondent. The
provisions included one on non-discrimination, whereby the par-
ties would agree not to discriminate against any employee be-
cause of race, color, creed, religion, age, sex, sexual orientation
or national origin, with regards to working conditions. It also
included one on family and medical leave (FMLA), whereby the
Respondent would acknowledge its obligations under federal
law and not require employees to substitute paid leave when on
FMLA leave. Another provision addressed past practices, stat-
ing that all existing benefits and practices that were more favor-
able than any of the contract’s terms would remain in effect for
the life of the agreement, unless the Respondent and the Union
agreed to a change. A discipline and discharge provision re-
quired a showing of just cause to discipline an employee. Fi-
nally, the Union proposed a management-rights’ clause stating
the Respondent “retains the right to manage its business, to make
all decisions, and to take whatever action it deems necessary in
connection therewith, except as subject to the provisions of this
contract.” The Respondent, through Foran, provided counter-
proposals to some of the Union’s proposals on August 24. One
of the counterproposals was on management rights, stating:
A. Except as specifically limited by the express language in
this Agreement, all management rights, powers, authority and
functions, whether heretofore or hereafter exercised, and re-
gardless of the frequency or infrequency of their exercise, shall
remain vested exclusively in the Company. It is expressly rec-
ognized that such Company rights, powers, authority, and func-
tions include, but are by no means limited to, the following
which shall not be subject to arbitration.
125 In reaching this conclusion, I do not rely on or find meritorious the
General Counsel’s argument that the Respondent repeatedly was late to
bargaining sessions.
126 At the hearing, the bargaining notes of both Roberts and Haberman
were entered into the record as substantive evidence. Mack Trucks, 277
NLRB 711, 725 (1985). I rely heavily on those contemporaneous notes,
B. The full and exclusive control, management and operation
of its business and its facility.
C. The determination of the scope of its activities, products to
be produced, processed or manufactured, and the methods per-
taining thereto, the location of such production, processing or
manufacturing; the materials and products to be acquired or uti-
lized; the machinery and equipment to be utilized, and the lay-
out thereof.
D. The determination of the number of employees and the as-
signment of duties thereto; the staffing of machinery and sup-
port processes; the number of crews and crew positions and the
right to change, increase or reduce the same; the right to fill or
not fill vacancies; the direction of the working forces, including
but by no means limited to hiring, selecting and training of em-
ployees, and suspending, scheduling, assigning, discharging,
laying off, recalling, promoting, retiring, demoting, and trans-
ferring employees.
E. The right to establish, change, combine or eliminate shifts,
schedules of work and production schedules and standards; the
right to establish, change, combine or eliminate jobs, positions,
job classifications and descriptions; the right to establish wage
rates for new or changed jobs or positions; the right to establish,
change, or eliminate incentive or bonus compensation; the right
to establish, modify, add or eliminate polices and work rules;
the right to make and enforce safety and security rules and rules
of conduct.
F. The right to introduce new or improved procedures, meth-
ods, processes, facilities, machinery and equipment or make
technological changes; the right to maintain order and effi-
ciency; the right to transfer any work; the right to contract or
subcontract any work.127
For the November 1−3 bargaining dates, Haberman took over
for Foran as the Respondent’s chief negotiator. In recent years
before then, Haberman had not done much contract negotiating,
although it was a core part of his job when he first started work-
ing for the Respondent. Haberman withdrew all counterpro-
posals Foran previously provided the Union. He spent the morn-
ing of November 1 giving an overview of the entire company
and recent changes made at corporate, utilizing portions of a
presentation the Respondent made to its investors in March
2015. Haberman then discussed how it was a new relationship
between the Respondent and the Union at Centerville, meaning
it made sense to start out with a relatively basic contract setting
the framework of the relationship. Haberman told Roberts he
was a minimalist, whose view of a collective-bargaining agree-
ment was something which could be written on the inside of a
matchbook cover. He said he did not like to burden a contract
with verbiage. Haberman also told Roberts it was very important
to the Respondent that it retain flexibility and agility to move
particularly Haberman’s very detailed ones, in reaching the findings of
fact in this section. Although both Roberts and Haberman testified cred-
ibly concerning negotiations, their recall was limited, given the number
of sessions and amount of elapsed time.
127 GC Exhs. 701, 703.
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees to the right jobs. Haberman stated he understood
flexibility sometimes created tensions with a union, but the Re-
spondent wanted to be able to react to the marketplace. In addi-
tion, he identified as a priority that employees have accountabil-
ity for their job duties and expectations, including giving the Re-
spondent flexibility to remove them from their jobs. Roberts re-
sponded that employees wanted transparency from the company,
including knowing what the work rules and job expectations
were. He said employees had concerns about policies changing
in the middle of the night.128
The Respondent also responded to some of the Union’s initial
proposals. Regarding the Union’s non-discrimination and
FMLA proposals, Haberman told Roberts he did not like to put
language in a contract that was duplicative of statutory law. Ha-
berman said he did not want employees to get two bites at the
apple. Roberts responded that the grievance procedure would be
more expedient for employees than going the statutory route.
They also discussed seniority, with Haberman saying the Cen-
terville plant primarily used plant seniority, not department or
classification seniority. He added that the Respondent’s last
layoffs were in 2008 and 2013. He said the Respondent sought
volunteers for those layoffs before involuntarily laying off any
employees. As to the Union’s past practices proposal, Haberman
told Roberts his position was that, unless it was set out in the
contract, the Respondent would be able to make any changes.
He said the Company would provide advanced notice for
changes to economic conditions. On November 3, the Union
also sought the Respondent’s approval to post the Union’s sum-
mary of what occurred during bargaining that month. Haberman
and Foran required the Union to make three changes to the sum-
mary before agreeing to post it.129
As negotiations progressed, one significant area of dispute
was promotions and transfers. During the next bargaining ses-
sion on November 29 and 30, 2016, the Union presented a pro-
posal on that topic. Haberman told Roberts he was willing to
discuss promotions and transfers, but did not think it was appro-
priate to include the subject in the contract. He said the Respond-
ent currently evaluated job bids based on employee qualifica-
tions, a process that worked well and was important to the com-
pany. He stated the Respondent’s approach was worth preserv-
ing, but he also wanted to retain the leeway to modify the ap-
proach if needed. Roberts noted the Union heard a resounding
message from employees that the promotions and transfers pro-
cess was something they wanted addressed. Haberman acknowl-
edged vocal concerns of favoritism in the finishing department,
but said the Respondent addressed and resolved them. Roberts
said the best way to resolve the situation was a mutually-agreed-
upon process memorialized in the contract. He added that em-
ployees would not be receptive to leaving the subject out of the
contract for the Respondent to administer on its own. Haberman
responded that he was open to discussing the issue and maybe
part of the process could be memorialized. Roberts said a lack
128 Tr. 912–913, 915–916, 918, 2138–2142; GC Exh. 520 (pp. 4–6);
R. Exh. 24 (pp. 24491–24498).
129 Tr. 919–921, 924–926, 1202; GC Exhs. 39–41, 520 (pp. 7–8, 11);
R. Exh. 24 (pp. 24501–24502, 24509).
of transparency fostered conspiracy theorists and employees
needed a basic sense of fairness.130
2. Bargaining During Winter 2016–2017
At the start of bargaining on December 20, 2016, Paul Kubicek,
the Respondent’s senior director of corporate safety and health,
made a presentation on Bemis’ safety record that took the entire
morning. This occurred after Haberman became upset at Rob-
erts’ suggestion in an earlier session that the Respondent did
not have a good safety record in Centerville. The Respondent
also presented a written proposal on promotions and transfers,
which stated:
The company has an internal policy on filling open positions.
This policy will be provided to the union and is available in the
HR Office. In the event the Company believes it necessary to
make changes to this policy, it will give the union advance no-
tice of its intent to modify the policy and an opportunity to meet
and discuss any proposed changes.
The Respondent did not provide the Union with the actual pol-
icy, because it did not have one at the time. Haberman proposed
that employees could see the policy to address Roberts’ stated
desire for transparency. He proposed that the Respondent retain
the right to modify the policy during the contract, in case the
policy did not allow the company to get the right people in the
right places. Roberts told Haberman that the Union would not
agree to let the Respondent keep a unilateral right to change this
policy. Roberts said one of the reasons employees voted the Un-
ion in was because they felt promotions and transfers had not
been done fairly in the past. He said the Union had a mandate to
get language in the contract protecting employees’ ability to
move to other jobs, including promotions. In addition, the Re-
spondent provided a counterproposal on discipline to the Union.
That proposal stated:
The company shall have the right to discipline and discharge
any employee, including union representatives. In the event of
discharge, the Company shall notify the Union within twenty-
four (24) hours after such discharge of the reasons therefore.
Regarding layoffs, the Union presented a counterproposal
whereby the Respondent would offer voluntary layoffs to em-
ployees, prior to implementing involuntary layoffs. In response,
Haberman told Roberts that he wanted to keep voluntary layoffs
outside the contract, so that the Respondent could use them at its
discretion based on the circumstances at the time. Finally, Rob-
erts told Haberman that seniority issues were very important to
the membership. He noted employees were upset with how the
Respondent had applied seniority to layoffs and promotions in
the past. Roberts said employees also had given the Union a
mandate to get seniority memorialized, so that everyone knew
their rights.131
At the January 18 bargaining session, the Respondent submit-
ted an updated discipline proposal, which stated:
130 GC Exhs. 707, 709; R. Exh. 24 (pp. 24551–24552); Tr. 1370–
1371.
131 Tr. 926, 935–943, 1305–1316, 1370–1371, 2148–2152; GC Exhs.
710 (p. 2), 715, 717; R. Exh. 24, p. 24373–24374.
BEMIS COMPANY, INC. 45
The company has an internal policy on discipline under which
it has the right to discipline and discharge any employee. This
policy will be provided to the union and is available in the Hu-
man Resources Department. In the event the Company be-
lieves it necessary to make changes to this policy, it will give
the union advance notice of its intent to modify the policy and
an opportunity to meet and discuss any proposed changes.
In the event of discharge, the Company shall notify the Union
as soon as possible, but in no event later than twenty-four (24)
hours after such discharge of the reasons therefore.
The Respondent also provided the Union with its disciplinary
policy. The overview stated: “It is Bemis Company policy to
ensure that all employees are treated fairly and with dignity and
respect. In that regard Bemis Company has a process for admin-
istering discipline.” The policy went on to describe a progressive
discipline process with four steps, any of which the Respondent
could bypass. The policy contained a significant amount of lan-
guage that was the same as the Respondent’s progressive disci-
pline system in its existing employee handbook. Roberts told Ha-
berman the Respondent’s discipline proposal maintained at-will
employment and it was important to the Union and employees
that the agreement have just cause as a basis for discipline. Rob-
erts noted employees were not satisfied with the Respondent’s
record on discipline. Haberman said this was a first-time agree-
ment and he did not want to agree to something that might not
work. He said the Respondent may want to change the policy
along the way, if it was not working. Roberts responded that the
Union had never been “unreasonable people” and they could
come to some sort of mutual agreement if an issue arose. But
Roberts also said he was not interested in leaving discipline out-
side the contract and to the Respondent’s discretion.132
The parties also discussed the requirement in the Union’s pro-
posal that the Respondent notify the Union when it issued any
discipline to an employee. Haberman told Roberts privacy was
a big concern for the Respondent. He said he did not think most
employees wanted the Union to know or to have it be public
knowledge when they were being disciplined. He told Roberts,
if the Union wanted that information, it could request the infor-
mation from the Respondent. Either at that time or on a subse-
quent date, Roberts told Haberman that, without notification of
employee discipline, the Union would risk missing the deadline
to file a grievance.133
The Union also submitted a written proposal for an interim
grievance procedure, pending the parties’ agreement on a full
contract. The proposal was modeled upon a dispute resolution
policy of the Respondent, which had not been implemented pre-
viously in Centerville. The proposal called for the Union to re-
ceive notification of employee discipline, as well as a process by
which a peer review panel made up of employees appointed by
the Respondent and the Union would conduct a hearing to deter-
mine if the discipline fairly applied the company’s policies,
132 Tr. 947–953, 1376, 1392–1399; GC Exhs. 16 (p. 24), 728 (p. 2),
729.
133 Tr. 953; GC Exh. 724.
134 Tr. 1319–1320; GC Exh. 733.
135 GC Exhs. 16 (pp. 46–47), 736, 742, 743.
rules, and practices. The Union made the proposal, because of
disciplinary issues occurring at the plant at that time. The Union
wanted an agreement on an interim procedure which complied
with the Board’s decision in Total Security Management Illinois
1, 364 NLRB No. 106, slip op. at 9 fn. 22 (2016).134
At or shortly after bargaining on February 7, the Respondent
submitted multiple proposals on promotions and transfers. For
the first time, the Respondent also provided the Union with its
promotions and transfers policy. This policy, like the one for
discipline, also borrowed language from the Respondent’s exist-
ing handbook provision for job postings.135
On February 8, Haberman sent Roberts the Respondent’s
counterproposal, entitled “interim conflict resolution policy.”
During bargaining, Haberman told Roberts the Respondent had
gone as far as it was willing to go on the issue and intended to
implement the proposal on February 20. Then on February 12,
Roberts sent an email to Haberman, which stated:
During our most recent bargaining session for a labor agree-
ment covering the Company’s Centerville, IA [p]lant, we spent
a substantial amount of time attempting to reach an Interim
Grievance and Arbitration procedure under “Total Security[.]”
Unfortunately, we were unable to reach a mutual agreement on
an Interim Grievance & Arbitration procedure. We would ad-
vise you the Union will not raise objections if you utilize the
modified Bemis Dispute Resolution Procedure represented by
your final proposal to the Union on February 8, 2017. You
stated that it is your intention to roll this out in the plant to be-
come effective February 20, 2017. However, the Union ex-
pressly reserves its rights under “Total Security” [i]n respect to
the “pre-imposition” bargaining rights regarding discretionary
discipline as outlined in the decision.
On February 15, Haberman responded via email:
Upon reflection, the company has decided against implement-
ing its Conflict Resolution Policy. To the extent there are dis-
ciplinary matters moving forward, we will continue to operate
under the NLRB’s rules.
On February 27 and in response to Roberts’ requests to continue
bargaining over an interim procedure, Haberman wrote the Re-
spondent preferred to maintain the status quo and operate under
Total Security until the parties reached agreement on a complete
contract. Haberman later told Roberts that he had pulled the Re-
spondent’s interim conflict resolution proposal, because of the
lack of trust between management and labor at the Centerville
facility.136
3. The Spring 2017 Bargaining Sessions
The parties next met for negotiations on March 29 and 30.
The Respondent submitted counterproposals, including on disci-
pline. The only change the Respondent made was to add “cov-
ered by this Agreement” to the end of the sentence which stated:
“The company has an internal policy on discipline under which
136 Tr. 961–964, 1111, 1208, 1319–1326; GC Exhs. 521 (pp. 58–59,
64), 740. Given these facts, I find that the parties did not reach an agree-
ment on the interim grievance procedure. Roberts’ testimony on that
issue was inconsistent.
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it has the right to discipline or discharge any employee.” Haber-
man noted the lack of substantive changes in the language and
said he knew the Union did not like the fact the Respondent was
proposing to keep the provision out of the collective-bargaining
agreement. He said the parties had a “philosophical disagree-
ment” in that regard.137
The parties also discussed the “Labor Agreement” provision.
The Union’s second proposal on August 24, 2016, stated:
This agreement is made and entered into by and between the
Centerville, Iowa Plant of Bemis Company, Inc., its successors
or assigns (hereinafter referred to as the “Company”) and
Graphic Communications Conference/International Brother-
hood of Teamsters Local #727, (hereinafter referred to as the
“Union”), for the purpose of establishing terms and conditions
of employment and preventing or adjusting misunderstandings,
is (sic) set forth in the following Articles.
On March 29, the Respondent provided a counterproposal, stat-
ing:
This agreement is made and entered into by and between the
Centerville, Iowa Plant of Bemis Company, Inc. (“Com-
pany”) and Graphic Communications Conference/Interna-
tional Brotherhood of Teamsters Local #727-S, (“Union”).
Haberman told Roberts he would not agree to the Union’s pro-
posal to include “for the purpose of establishing terms and con-
ditions of employment and adjusting misunderstandings or disa-
greements regarding the terms of this Agreement, as set forth in
the following Articles” to the end of the sentence. Haberman
said adding that language could give the Union additional rights
beyond the body of the contract. He said the agreement itself
should set the terms and conditions, including any changes.138
The topic of union access to the plant also arose at this session.
The Union’s initial proposal on August 23, 2016, stated: “The
employer will allow Union representatives reasonable access to
the plant for the purposes of Union business.” As of March 29,
the Respondent’s counterproposal was:
Where necessary for the investigation and/or proper disposi-
tion of a complaint raised under Article ___ - Grievance
and Arbitration Procedure of this Agreement, a local or
international union representative may visit the plant during
working hours. When a visit is desired, the union representa-
tive must make application to the Human Resources Man-
ager. Such visits shall be held to the minimum time neces-
sary and shall not interfere with business operations. A visit
will not be unreasonably denied.
The Union submitted a counterproposal the same date, which
sought to add the ability for its representatives to visit the plant
“to conduct the business of the Union” and “to meet with repre-
sentatives of the Company.” On March 30, the Respondent re-
jected the sought changes and resubmitted its prior counterpro-
posal. In explaining the rejection, Haberman said the additions
137 GC Exhs. 744 (p. 10), 749 (p. 9); Tr. 969.
138 GC Exhs. 520 (p. 41), 702 (p. 2), 744 (p. 2), 745; Tr. 964–965.
139 By this time, Zaputil and Bray had begun their weekly meetings
where Bray would present the Respondent’s intended discipline of em-
ployees to her.
did not need to be in the language, because the Union could con-
duct its business outside of the plant. He added that the Union’s
vice president and the Respondent’s human resources manager
were building a good relationship, meeting and talking (about
discipline).139 Haberman said, as the relationship grew, the par-
ties could add language. He reiterated his earlier statement that
this was a first contract and they should get a framework. Rob-
erts responded that they had no established relationship at this
point and the Union was more comfortable with defining the pa-
rameters of the relationship. Shortly thereafter, Roberts said the
Union believed it was best for the relationship to have specifics
in the contract. Haberman responded that approach was “like
having a prenuptial agreement before you get married; you’re
saying the relationship won’t work.” At the end of the discussion
that day, Haberman addressed the Union’s proposal for a past
practice provision, saying he did not think either a past practice
or a zipper clause was appropriate. Haberman said the Respond-
ent did not have past practices moving forward, that the collec-
tive-bargaining agreement was the way to move forward. He
said, to the extent the Respondent wanted to change the status
quo, the NLRB had a process which had to be followed.140
The parties also addressed the Union’s proposal for a bulletin
board at the Centerville facility. The Union’s initial August 23,
2016 proposal called for a bulletin board in a mutually satisfac-
tory place, with the Union retaining sole authority regarding
what items could be placed on it. As of the March 29 session,
the Union’s counterproposal called for the Respondent to pro-
vide union bulletin boards in each department and at the main
entrance. The Union retained the authority to determine what
could be posted but would meet with the Respondent and discuss
if the posting should be modified or removed. On March 30,
Haberman told Roberts at bargaining that he was not interested
in having separate bulletin boards and the Union had other ways
of communicating with its members. Haberman said separate
boards differentiated between union and nonunion employees.141
On the Union’s security/check off proposal, Haberman told
Roberts the Respondent was not interested in collecting dues
money for the Union. He said the Union had other ways to col-
lect it. He added, if the law changed, the Respondent would sit
down and talk to the Union to the extent required by law.142
In its counterproposal on grievance and arbitration, the Re-
spondent added the following language:
Section 2. Matters Excluded from Grievance Procedure.
Should an unfair labor practice charge be filed by the Union or
the Employee involving the subject matter of a grievance or
should the grievance allege matters that could be presented as
an unfair labor practice charge, then any such grievance, re-
gardless of its stage in the grievance procedure, shall no longer
be processed and shall not be subject to final and binding arbi-
tration but shall proceed exclusively before the National Labor
Relations Board. In addition, any interpretation of this arbitral
exclusion shall not be subject to final and binding arbitration,
140 GC Exhs. 701 (p. 16), 744 (p. 15), 745 (p. 3–4), 749 (p. 14); R.
Exh. 24, pp. 24452–24453.
141 Tr. 965–967; GC Exhs. 701 (p. 10), 703 (p. 5), 745 (pp. 4–5).
142 Tr. 967.
BEMIS COMPANY, INC. 47
but shall be within the exclusive jurisdiction of the federal
court.
The Union objected to this proposal limiting employee access to
the grievance procedure.143
Finally, the Respondent included a no-strike, no-lockout pro-
posal for the first time.144 The proposal stated:
Section 1. During the term of this Agreement there shall be no
strikes, sympathy strikes, work stoppages, slowdowns, boy-
cotts, intentional interruption of production, delays or suspen-
sion of work of any nature, and no other acts that interfere with
the Company’s operations or the production or sale of its prod-
ucts or services by the union, its officers, agents or members,
or by the employees.
Section 2. During the term of this Agreement there shall be no
lockout of any employees by the Company.
Section 3. The union agrees that it will make every effort pos-
sible to discourage, prevent and end any strike or proscribed
activity and will inform all employees who participate in such
activity that it is their individual responsibility to comply with
this Agreement.
Section 4. Any or all employees participating in any such ac-
tivity proscribed herein shall be discharged.
The Respondent and the Union next met for negotiations on
April 12 and 13. On the first day, the Union provided counter-
proposals on discipline, as well as promotions and transfers.
Again, both proposals were drafted as articles contained in the
collective-bargaining agreement. On April 13, the Respondent
submitted a counterproposal on promotions and transfers, with
language which was substantively identical to its initial proposal
on December 20, 2016. The April 13 proposal simply changed
“HR Office” to “Human Resources Department” and added a
phrase clarifying that the referenced internal policy was “appli-
cable to all employees covered by this Agreement.” However,
substantive changes were made to the promotions and transfers
policy, which would remain outside the contract. At bargaining
that day, the two chief negotiators extensively discussed the im-
pact of keeping the Respondent’s internal policies outside the
contract. According to his notes, Haberman first stated: “The
policies are subject to bargaining under NLRB act, if we changed
during the contract.” When Roberts countered that it actually
meant he could just change the policies at his will, Haberman
initially disagreed. He told Roberts that, by referencing the pol-
icies in the contract, the Respondent was making any changes
subject to the grievance and arbitration procedure to determine
if they were done fairly and correctly. He also contended that
employees could grieve whether the Respondent had followed
the policies. But shortly thereafter, Haberman acknowledged the
Respondent’s proposals only required it to “meet and discuss,”
not bargain, over any changes145
When the discussion turned to discipline, Haberman said the
143 Tr. 1121–1122, 1336; GC Exh. 744, p. 11.
144 GC Exh. 744, p. 13. The Respondent made the same no-strike
proposal on August 24, 2016 when Foran was the negotiator, but Haber-
man pulled that proposal on November 1, 2016. (GC Exh. 703, p. 9.)
Respondent recognized that one of the reasons why employees
“narrowly” voted the Union in was due to issues the Respondent
had with administering discipline. He acknowledged the com-
pany had “not been perfect” and continued to work to improve.
But he stated he had reviewed the Respondent’s disciplinary rec-
ords and only 15 percent of the employees were in the discipli-
nary progression. He said the company was not arbitrarily hand-
ing out discipline all over the place. Haberman told Roberts
there were workplaces all over the world which did not have re-
view of issued discipline and things go fine. He said the Re-
spondent did not have a discipline counterproposal and it was
comfortable with its own proposal and language, i.e. keeping the
discipline policy out of the contract. Haberman also agreed with
Roberts’ contention that the Respondent could make changes to
the policy without the Union’s consent. However, he contended
the Respondent was giving the Union an opportunity to provide
input and voice its concerns regarding the changes. Roberts
called that “window dressing” giving the Respondent unilateral
control.146
At bargaining on May 2 and 3, the Respondent made a coun-
terproposal on promotions and transfers. The language now
specified that the Respondent would give the Union no less than
30 days of advance notice of any proposed changes to the policy.
Haberman said the company “wouldn’t unilaterally make
change(s) and do it over night and spring it on employees.” But
when Roberts responded that the Respondent’s proposal still did
not require an agreement with the Union to change the policy,
Haberman replied, “That’s correct.” Roberts said the Respond-
ent was asking the Union to waive its right to bargain over any
changes. Haberman confusingly responded: “NLRB talks about
bargaining outside of the contract with a new contract. We
would abide by all rules of the NLRB.” He did not elaborate
further.
Roberts noted that nothing was more critical to employees on
the floor than promotions and discipline. He told Haberman the
Union might be fine if the contract language required mutual
agreement between the parties for any changes to the policy.147
Roberts also suggested for the first time that the parties move
on to economics. He noted that the parties’ positions on none-
conomic issues were fairly rigid at that point and it might be time
to set them aside. Haberman responded that he wanted some
time to talk about expanding into economics.148
Bargaining resumed on May 31 and June 1. Roberts renewed
his request that the parties get into economics. In response, Ha-
berman noted the Respondent had provided the Union with a full
response, it’s fifth noneconomic proposal, at the May 3 session.
He said the Respondent had not prepared anything on economics
but would not reject any Union offering. Haberman told Roberts
the Respondent was unlikely to have a response to any econom-
ics proposal the Union submitted at that time. He noted the par-
ties’ next scheduled bargaining dates were in 2 weeks and the
Respondent would be able to start working on it then. He said
145 GC Exhs. 710 (p. 2), 752, 753, 754 (p. 2), 755; R. Exh. 24, pp.
24295–24296; Tr. 1024–1027.
146 R. Exh. 24, pp. 24297–24298.
147 GC Exh. 758, p. 7; R. Exh. 24, pp. 24462–24463; Tr. 1748.
148 R. Exh. 24, p. 24474; Tr. 1033.
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the Respondent would expect to have a full economic proposal
at the as-yet unscheduled meetings thereafter. Haberman told
Roberts he wanted to maintain their focus on noneconomics.149
The parties again discussed their latest proposals on disci-
pline. The Respondent’s counterproposal extended the notice
period for changes to the discipline policy from 30 to 45 days.
Haberman said his hang up with the Union’s latest proposal was
that, at the end of the day, the Union would get final say on any
discipline policy changes. Haberman had the same concern over
the Union’s proposal on promotions and transfers. Roberts
asked where the just cause requirement was in the Respondent’s
discipline proposal. Haberman responded that the Respondent’s
policy reflected a commitment to treat employees fairly and with
dignity and respect. He also said, if the Respondent went directly
to discharge, the Union could challenge it. Roberts asked how
that would be possible without a just cause requirement.150
The parties also discussed their grievance and arbitration pro-
cedure proposals. In prior discussions, Haberman and Roberts
disagreed multiple times concerning whether the sources of ar-
bitrators to hear grievances should be the American Arbitration
Association (AAA) or the Federal Mediation and Conciliation
Service (FMCS). Roberts told Haberman that AAA was very
expensive and FMCS provided essentially the same list of arbi-
trators at a much lower cost. The Union was concerned that, if
the cost was too high, employees’ access to arbitration would be
restricted. Haberman said that AAA provided a higher quality
of arbitrator, to which Roberts responded that the parties could
specify to FMCS what qualifications they wanted in an arbitra-
tor. At one point, Roberts asked Haberman what the cost of a
AAA panel was. Haberman responded $400, but Roberts had
researched it and told him it was closer to $1,400. He told Ha-
berman that corporate would be highly upset the first time they
got an arbitration bill from AAA. Haberman said he would have
to check on the AAA cost. At the May 31-June 1 session, Rob-
erts reiterated the Union’s position that using AAA for arbitra-
tors was too expensive and FMCS provided a perfectly workable
solution. Haberman confirmed that
Roberts’ prior estimation of the cost of a AAA arbitrator was
accurate.151
The Respondent also reiterated that it wanted to retain discre-
tion over voluntary layoffs and not put that subject in the con-
tract. Haberman noted the Respondent had offered a continua-
tion of benefits to employees for the most recent layoff but did
not want that in the agreement either.152
Finally, Haberman informed Roberts the Respondent was
having difficulty establishing employees’ department seniority
dates, because of records issues from prior owners and a human
resources computer system change. He said the Respondent
might not be able to identify all jobs previously held by employ-
ees. The parties discussed different scenarios for identifying
149 R. Exh. 24, p. 24475.
150 R. Exh. 24, pp. 24483–24484; GC Exhs. 767, 772 (p. 2); Tr. 1041,
2152–2153.
151 R. Exh. 24, p. 24475; Tr. 1038–1040, 1339–1340. At other points
in their discussions on this topic, the Union proposed specifying an al-
ternative source of arbitrators in addition to AAA or agreeing on a per-
manent panel. (Tr. 1141−1142, 1564–1565.) Haberman replied that the
Respondent’s proposal did not preclude the parties from doing either of
prior jobs held by employees. Plant and department seniority
lists were important to the Union, because it wanted to maintain
the status quo at both levels.153
At the next bargaining sessions on June 13 and 14, the Union
presented its initial economic proposal. In addition, the Re-
spondent presented a modified promotions and transfers pro-
posal. The Respondent changed the requirement that it “meet
and discuss” proposed changes to its policy with the Union to
“meet and confer…in an attempt to reach an agreement on its
proposed changes.” The Respondent also added the requirement
that it post the new policy for 15 days and distribute it to em-
ployees, prior to implementation. The Respondent made the
same changes, including changing “meet and discuss” to “meet
and confer,” in its revised discipline proposal. When Roberts
asked Haberman if “meet and confer” meant bargaining, Haber-
man told him no, it did not rise to the level of bargaining or re-
quire an agreement by the parties or a ratification vote of the un-
ion membership.154
At the same sessions, the parties discussed their seniority pro-
posals. Haberman rejected the idea of including anything in the
contract requiring the Respondent to post an employee seniority
list. Haberman stated he had not heard this was a problem and
thus it did not need to be addressed in the contract. Haberman
also said he was deleting text from the Respondent’s seniority
proposal stating the language would apply to layoffs and promo-
tions. He explained, if seniority applied to a specific subject like
layoffs, there would be language in the layoffs provision. Ha-
berman told Roberts he was not going to put language in the sen-
iority provision that the Union might argue later granted it a right
he did not intend to give it. Roberts said the Union was sticking
with its position that the language should be in both areas. Fi-
nally, when Roberts asked for a full employee seniority list to
ensure that any contract agreement did not upset the status quo,
Haberman said the Respondent was still working on it.155
4. The Summer 2017 Bargaining Sessions
Six weeks later, the Respondent and the Union met on July 25
and 26 to continue bargaining. At the start, Haberman detailed
the current status of the negotiations. He noted the parties had
exchanged noneconomic proposals back and forth at the prior
session. He said the Union had provided its initial economic pro-
posal then, which the Respondent did not have a chance to go
over with Roberts at that session. He noted that five specific
noneconomic proposals were discussed in the prior session. He
appeared to be referring to discipline, promotions and transfers,
grievance and arbitration, leave of absences for union business,
and seniority. He said the Respondent needed a “clear explana-
tion” from the Union on its proposals in those five areas. Haber-
man and Roberts rehashed their prior arguments over whether
discipline and promotions/transfers should be inside or outside
those things, even if that language was not included in the contract. He
also suggested the parties could use FMCS for routine labor arbitrations.
(Tr. 1341–1342.)
152 Tr. 1040.
153 Tr. 1108.
154 GC Exhs. 785–787; Tr. 1145–1146, 1358–1360.
155 R. Exh. 24, p. 24440; Tr. 1047–1049.
BEMIS COMPANY, INC. 49
the contract. They also argued over whether discipline should
be subject to a just cause standard. Haberman said, if the Re-
spondent did agree to just cause, the provision would not be in
the contract, only in the discipline policy. Roberts also stated the
Respondent was not prepared to get into economics, to which
Haberman responded they planned on doing so. Roberts said
they had 22 meetings and were stuck in a little circle. Near the
end of the day on July 26, the Respondent submitted its first eco-
nomic proposal. The proposal was a partial one, covering the
subjects of work week, overtime, safety shoes, break periods,
jury duty, leaves of absence, tool allowance, holidays, health in-
surance, and dental insurance. It did not include proposals on
wages, retirement, shift differential, and bereavement leave.156
At the September 12 and 13 bargaining sessions, the Respond-
ent submitted its second economic proposal. The Respondent
added provisions on wages, bereavement leave, and short-term
disability. Its wage proposal was not substantive but stated that
an as yet unattached appendix would set forth employees’ wage
rates for the duration of the contract.157
5. The Fall 2017 Bargaining Sessions
During bargaining on October 10 and 11, the Respondent pre-
sented its first, complete economic proposal. For wages, the Re-
spondent added that it would “meet with the Union annually to
discuss modification” of the wage rates set forth in the appendix.
Haberman told Roberts wage increases were likely and the Re-
spondent would let the Union know every year what they would
be. Haberman said they were not willing to agree to specified
wage increases in the contract. The Respondent also proposed
that it would retain the ability to unilaterally determine or change
employee schedules, overtime, and holidays. As for noneco-
nomics, the Respondent proposed for the first time an attendance
policy outside the contract, pursuant to which employees could
receive a documented verbal warning at five occurrences. At the
time, the Respondent’s existing attendance policy in its em-
ployee handbook did not impose such discipline until an em-
ployee with more than one year of service had eight occurrences
and employees with less than one year of service had six occur-
rences. The parties discussed how the Respondent’s proposal
was more restrictive than its existing policy.158
At the November 15−16 bargaining sessions, the Union made
a counterproposal on voluntary layoffs which stated: “When re-
ducing the work force in a department, the Company may elect,
but shall not be required, to offer Optional Layoffs.” The Re-
spondent rejected the proposal on November 29. Haberman said
he did not see the Union’s language as necessary. He added that,
in the future, the Respondent would sit down and talk with the
Union if the company felt a voluntary layoff was a good option,
just as it had the prior summer. Roberts asked Haberman
whether he felt the Respondent would have to bargain over the
terms of a voluntary layoff going forward or if the Union would
be waiving its right to bargain without any contract language on
the subject. Haberman responded that the company would need
156 R. Exh. 24, pp. 22892–22894; GC Exhs. 782–786, 790; Tr. 1110–
1113.
157 GC Exh. 821.
158 GC Exhs. 16 (p. 12), 827 (pp. 2, 8, 10), 828 (p. 2); Tr. 1121–1123,
1207, 2209.
to talk about it with the Union but not come to an agreement,
unless it violated some other term of the contract. Roberts noted
the Union’s concern that, with the Respondent’s proposed man-
agement rights clause, the Union would lose its right to bargain
on this subject. Haberman responded that a general principle of
labor law was, if a contract had a management rights clause, any
subject not in the contract did not exist. But he said again that
the Respondent would have to talk about any change in policy
that effected terms and conditions of employment. Shortly there-
after, Haberman said his position was, if a subject was not in the
contract, the Respondent could unilaterally change it. However,
he then stated inconsistently that “I think the law indicates that
just because isn’t in the contract does not mean we do not meet.
Does not mean we get to do what we want[.]” At this point, the
Respondent’s management rights proposal was the same as its
initial one proposed in August 2016. It granted the Respondent
numerous rights, including “suspending, scheduling, assigning,
discharging, laying off, recalling, promotions, retiring, demot-
ing, and transferring employees.” It also gave the Respondent
the authority to change employees’ work schedules, eliminate
job classifications, establish wage rates for new or changed po-
sitions, and establish or change incentive and bonus compensa-
tion.159
During the same meetings on November 29 and 30, Roberts
asked Haberman if the Respondent made any changes to its dis-
cipline proposal. Haberman replied no. The two argued again
over a just cause standard for discipline. Haberman stated that,
even without just cause in the contract, arbitrators would ap-
proach a termination challenge with a mind towards the just
cause question. He rejected the Union’s position that arbitrators
would not automatically use a just cause standard, if it was not
contained in the contract. Haberman claimed the Respondent
could not change its discipline policy arbitrarily. He added that,
if the company did not follow the policy and treated employees
disparately, the grievance and arbitration provision provided em-
ployees with a remedy. He concluded by saying, if the Respond-
ent did not follow its own policy, an arbitrator “is going to whack
us!” Haberman and Roberts also repeated their discussion from
earlier negotiations about whether the Respondent would notify
the Union of employee discipline. Haberman stuck to his posi-
tion that the Respondent was not going to share that information,
due to concerns over employee privacy.160
Beyond discipline, the Respondent rejected the Union’s pro-
posal to put promotions and transfers language in the contract,
with an additional mid-term reopener requiring mutual agree-
ment to modify the provision. The parties also discussed the Re-
spondent’s proposal limiting the Union to challenge a matter
with either a grievance or an unfair labor practice charge. Ha-
berman said he was not particularly married to it but wanted to
wait and see if the new Board General Counsel would change or
drop some of the prior General Counsel’s directives regarding
deferral to arbitration. Haberman and Roberts also repeated
159 GC Exhs. 841 (p. 4–5), 842 (pp. 5–6); R. Exh. 24, pp. 22468–
22469, 22471–22472; Tr. 1147, 1772–1773.
160 Tr. 1128–1137, 1140–1145, 1766–1767, 1779–1780; GC Exhs.
450 (p. 64), 520 (pp. 102–103); R. Exh. 24, pp. 22466, 22470.
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
earlier arguments on a number of topics, without any changes to
their respective positions. The first was the Union’s desire for
its own bulletin board at the Centerville facility. Haberman
again said the Union had other ways to communicate with its
members, such as social media, and mentioned service to cus-
tomers. Roberts said he did not understand how it related to cus-
tomers. When Roberts said he was talking about two separate
boards, one company and one union, Haberman responded that
it would separate the employees. Next, Haberman again told
Roberts that the Union’s nondiscrimination language did not be-
long in the contract, because it was statutory. He said the same
thing regarding the Union’s military leave proposal. Finally, the
two rehashed earlier discussions on voluntary layoffs and
whether an outside-the-contract policy would be subject to griev-
ance and arbitration.161
6. Bargaining from January 1 to April 26, 2018
Following the Respondent’s implementation of the 12-hour
schedule facility-wide on December 31, the parties discussed
seniority at length during meetings on January 10−11 and Feb-
ruary 1−2, 2018. The Respondent provided the Union with a
seniority list on January 10 with plant and department senior-
ity.162 It wanted the Union’s agreement on the list prior to post-
ing it in the plant. The Union reviewed it and noticed discrepan-
cies with certain employees. When the Union asked for an elec-
tronic version of the list, Haberman responded he wanted agree-
ment on the form of the list, not the specific dates for each em-
ployee. He said the parties could work on discrepancies at a later
date. The Union disagreed and wanted the dates resolved before
any agreement on the contract provision governing seniority.163
Prior to the complaint in this case issuing, the Respondent and
the Union last met to bargain on April 17 and 18, 2018.164 On
these dates, the parties reached tentative agreements on seniority
and the grievance and arbitration procedure. In the seniority TA,
the Union agreed to the Respondent’s demand that the provision
not state the job actions, including layoffs, to which seniority
would apply. Thus, the provision simply defined how seniority
would be determined. Prior to the TA, the Respondent made 13
seniority proposals. By the time the parties reached the TA, the
Union also had withdrawn its voluntary layoff proposal because,
as Roberts framed it, “we had gotten nowhere with it.” For griev-
ance and arbitration, the Union agreed to the Respondent’s de-
mand that employees could not submit certain disputes to both
the NLRB and to an arbitrator. It also agreed to the Respondent’s
proposal that AAA arbitrators be used. With respect to prior ten-
tative agreements which the parties reached, the Union acceded
to the Respondent’s demand that the recognition clause make no
reference to the contract “establishing terms and conditions of
161 Tr. 1137–1140, 1148–1151, 1326–1330, 1776–1777.
162 The parties dispute when the Respondent first provided the Union
with a full departmental seniority list for all unit employees. I find that
this occurred at the January 10, 2018 session. Although it did provide
other seniority lists prior to that date, those lists contained only plant sen-
iority dates or department seniority dates solely for extrusion department
employees. (GC Exhs. 406, 417; R. Exhs. 1, 7; Tr. 1560.)
163 Tr. 1158–1176.; GC Exh. 849.
164 At the hearing, the Respondent attempted to put into evidence tes-
timony concerning negotiations between the parties after April 26, 2018.
employment” or “adjusting misunderstandings” related to the
agreement. On promotions and transfers, the Respondent sub-
mitted its eleventh proposal, which stated:
The company has an internal policy on filling open positions
applicable to all employees covered by this Agreement. This
policy will be provided to the union and is available in the Hu-
man Resources Department. In the event the Company be-
lieves it necessary to make changes to this policy, it will give
the union no less than forty-five (45) calendar days advance
notice of any proposal to modify the policy. During this time
the Company will offer the union an opportunity to meet and
confer over the Company’s proposed changes in an attempt to
reach an agreement on the proposed changes. Before imple-
menting any new policy, the Company will post the policy for
an additional fifteen (15) calendar days and distribute it to em-
ployees.
At this time, the Respondent’s most recent contract proposal on
discipline was submitted on November 29. It stated:
The company has an internal policy on discipline under which
it has the right to discipline and discharge any employee cov-
ered by this Agreement. This policy will be provided to the
union and is available in the Human Resources Department. In
the event the Company believes it necessary to make changes
to this policy, it will give the union no less than forty-five (45)
calendar days advance notice of any proposal to modify the
policy. During this time the Company will offer the union an
opportunity to meet and confer over the Company’s proposed
changes in an attempt to reach an agreement on the proposed
changes. Before implementing any new policy, the Company
will post the policy for an additional thirty (30) calendar days
and distribute it to employees.
In the event of discharge, the Company shall notify the Union
as soon as possible, but in no event later than twenty-four (24)
hours after such discharge of the reasons therefore.
As of this session, the Respondent’s only full economics pro-
posal was the one it made on October 10. In addition, the com-
pany’s most recent proposal on wages came more than two
months earlier on February 2, 2018. At that point, the Respond-
ent modified the proposal to require it to negotiate, rather than
discuss, with the Union an adjustment to employees’ wages each
year.165 The Respondent’s proposals on scheduling, overtime,
and holidays never changed from the initial proposal on October
10, in which the Respondent retained unilateral control over
those subjects. The Respondent also continuously sought to
keep its policies on discipline, promotions/transfers, attendance,
tool allowance, and voluntary layoffs outside the contract.
I sustained the General Counsel’s objection and did not allow the testi-
mony. (Tr. 2131–2137.) I reaffirm that ruling now, because evidence of
negotiations outside of the bad-faith time period alleged by the General
Counsel is irrelevant. See National Automobile and Casualty Insurance
Co., 199 NLRB 91, 91 fn. 2 (1972). However, I did allow the Respond-
ent to make an offer of proof using a question-and-answer format. (Tr.
2255–2261; R. Exhs. 25 and 26, rejected.)
165 The Union did not submit a full economics counterproposal to the
Respondent at any point after October 10. (Tr. 2210.)
BEMIS COMPANY, INC. 51
Haberman’s explanation to the union representatives for this ap-
proach was that he was going to be a “hard sell” and they would
have to help him understand why it was necessary to put a sub-
ject into the contract.166
LEGAL ANALYSIS
The duty to bargain in good faith under Section 8(d) of the Act
requires both the employer and the union to negotiate with a
“‘sincere purpose to find a basis of agreement,’” Atlanta Hilton
& Tower, 271 NLRB 1600, 1603 (1984) (quoting NLRB v. Her-
man Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960)). Although
the statute cannot compel a party to make a concession, an em-
ployer is, nonetheless, “‘obliged to make some reasonable effort
in some direction to compose his differences with the union, if
[Section] 8(a)(5) is to be read as imposing any substantial obli-
gation at all.’” Ibid. (quoting NLRB v. Reed & Prince Mfg. Co.,
205 F.2d 131, 135 (1st Cir. 1953), cert. denied 346 U.S. 887
(1953)). (Emphasis in original.) Therefore, “mere pretense at
negotiations with a completely closed mind and without a spirit
of cooperation does not satisfy the requirements of the Act.”
Mid-Continent Concrete, 336 NLRB 258, 259 (2001), enfd. sub
nom. NLRB v. Hardesty Co., 308 F.3d 859 (8th Cir. 2002) (quot-
ing NLRB v. Wonder State Mfg. Co., 344 F.2d 210 (8th Cir.
1965)).
In determining whether a party has violated its statutory obli-
gation to bargain in good faith, the Board examines the totality
of the party’s conduct, both at and away from the bargaining ta-
ble. Public Service Co. of Oklahoma (PSO), 334 NLRB 487,
487 (2001), enfd. 318 F.3d 1173 (10th Cir. 2003); Overnite
Transportation Co., 296 NLRB 669, 671 (1989), enfd. 938 F.2d
815 (7th Cir. 1991). From the context of the party’s total con-
duct, the Board must decide whether the party is engaging in hard
but lawful bargaining to achieve a contract that it considers de-
sirable or is unlawfully endeavoring to frustrate the possibility of
arriving at any agreement. PSO, supra.
The Board considers several factors when evaluating a party’s
conduct for evidence of surface bargaining. These include de-
laying tactics, the nature of the bargaining demands, unilateral
changes in mandatory subjects of bargaining, and efforts to by-
pass the union. Atlanta Hilton & Tower, supra at 1603. It has
never been required that a respondent must have engaged in each
of those enumerated activities before it can be concluded that
bargaining has not been conducted in good faith. Altorfer Ma-
chinery Co., 332 NLRB 130, 148 (2000).
“Although the Board does not evaluate whether particular pro-
posals are acceptable or unacceptable, the Board will examine
proposals when appropriate and consider whether, on the basis
of objective factors, bargaining demands constitute evidence of
bad-faith bargaining.” PSO, supra, citing Reichhold Chemicals,
288 NLRB 69 (1988), affd. in relevant part 906 F.2d 719 (D.C.
Cir. 1990), cert. denied 498 U.S. 1053 (1991). An inference of
bad-faith bargaining is appropriate when the employer’s pro-
posals, taken as a whole, would leave the union and the employ-
ees it represents with substantially fewer rights and less protec-
tion than provided by law without a contract. PSO, supra at 487–
166 GC Exhs. 522 (pp. 7–9.), 828, 842 (p. 7.), 864 (p. 2, 6), 874 (p. 2),
903, 907 (p. 2.); Tr. 942, 2146–2147.
488. This includes proposals that require a union to cede its rep-
resentational functions. Regency Service Carts, 345 NLRB 671,
675 (2005).
Applying this legal framework here, I conclude the totality of
the Respondent’s conduct establishes it engaged in surface bar-
gaining. At the bargaining table, the Respondent’s refusal to me-
morialize agreements; bargaining proposals giving it unilateral
control over mandatory bargaining subjects; and its refusal to
meet at reasonable times, along with other dilatory tactics,
demonstrate it did not intend to reach a collective-bargaining
agreement with the Union. Away from the table, the Respond-
ent’s numerous unilateral changes to significant terms and con-
ditions of employment and its direct dealing with employees sup-
port the same conclusion.
Starting with conduct at the bargaining table and bargaining
proposals, the Respondent insisted throughout negotiations that
its discipline and promotions/transfers policies remain outside
the contract. At the outset, Haberman informed Roberts he pre-
ferred a minimalist agreement without a lot of verbiage. He also
wanted to maintain flexibility by giving the Respondent the abil-
ity to change employees’ jobs and to discipline them. These two
areas just so happened to be ones the employees wanted ad-
dressed in the contract, because they strongly felt the Respondent
had not been treating them fairly in those areas. In the negotia-
tions over the next 18 months, the Respondent made 11 promo-
tions/transfers proposals and six discipline proposals. In all of
them, the two policies remained outside the contract. Thus, even
though the parties were negotiating policy language, any agree-
ment on that language would not be memorialized in a collec-
tive-bargaining agreement. The Board has found similar conduct
unlawful for multiple reasons. In Herald Statesman, 174 NLRB
371, 371–372 (1969), enf. denied on other grounds 417 F.2d
1259 (2d Cir. 1969), an employer stated repeatedly in bargaining
that it had policies covering mandatory subjects of bargaining,
but “was not prepared to write [them] into the contract.” The
policies covered pensions, hospital and medical benefits, sick
leave, severance pay, dismissal notice pay, and an incentive pay
plan. The Board expressed its disapproval of this approach by
stating:
We cannot agree that by engaging in such a course of bargain-
ing, Respondent was merely requesting that the Union agree to
leave certain matters to its discretion. On the contrary, it is
clear from the evidence set out above that Respondent asserted
unequivocally on several occasions that it would not include in
a contract any agreement that might be reached on certain man-
datory subjects of bargaining. Under these circumstances, any
protests by the Union would have been an exercise in futility
for to insist at this stage upon agreement to reduce the result of
any negotiations to writing would have foreclosed negotiations
on that subject. The announcement in advance of a determina-
tion not to comply with the statutory requirement to reduce any
understanding reached to a signed and binding agreement dis-
plays the absence of a good-faith intention to conclude an
agreement. Such avoidance of the statutory obligation is a vio-
lation of Section 8(a)(5). Further by stating that it would not
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
include even existing company policies in the contract, Re-
spondent foreclosed bargaining with respect to these manda-
tory areas. Such foreclosure is tantamount to a refusal to nego-
tiate about such subject matters and each instance is an inde-
pendent violation of Section 8(a)(5) of the Act. Accordingly,
we find that Respondent violated Section 8(a)(5) and (1) of the
Act by stating that it would not include in a contract any agreed
on provisions concerning pensions, hospital and medical bene-
fits, sick leave, severance pay, dismissal notice pay and incen-
tive pay plan.
The Respondent here also steadfastly refused to include policies
involving mandatory subjects of bargaining in a collective-bar-
gaining agreement, even if the Respondent and the Union ulti-
mately agreed upon the policy language. The written contract is
the goal of the bargaining process and what separates a unionized
workplace from a nonunionized one. Wanting to keep these pol-
icies outside the agreement is not, as Haberman claimed, a “phil-
osophical difference.” Rather, it is a method for the Respondent
to retain unilateral control over terms and conditions of employ-
ment. Haberman said he was a “hard sell” and would require an
explanation from the Union as to why something needed to be in
the contract. Why a mandatory subject of bargaining needs to be
addressed in a contract is self-explanatory: if the Union bar-
gained over a subject in contract negotiations and agreed to leave
it outside the contract, it was opening up the possibility of having
waived its right to bargain over the subject going forward. The
Respondent’s refusal to include these policies in a contract con-
stitutes both a lack of good-faith bargaining under Section
8(a)(5) and a failure to comply with Section 8(d)’s requirement
to execute a written contract incorporating any agreement
reached.167 Bethea Baptist Home, 310 NLRB 156, 156 (1993)
(employer’s refusal to put agreements on proposals in the collec-
tive-bargaining agreement supported finding of surface bargain-
ing).
The Respondent’s approach to discipline and promo-
tions/transfers was part of a broader attempt to retain unilateral
control over numerous, significant mandatory subjects of bar-
gaining. The Respondent’s management-rights proposal, which
never changed over the course of 18 months of bargaining,
would have granted it the right to suspend, discharge, layoff, re-
call, demote, and transfer employees, as well as eliminate their
job classifications and transfer or subcontract their work. It also
gave the Respondent the authority to unilaterally change em-
ployees’ work schedules, wage rates for new or changed posi-
tions, incentive and bonus compensation, and policies and work
rules. These rights were unfettered, “except as specifically lim-
ited by the express language” in the collective-bargaining agree-
ment. But Haberman sought to avoid those limitations with his
minimalist approach and aversion to putting language in the
167 The General Counsel did not allege the Respondent’s conduct in
this regard to independently violate the Act, as the Board found in Herald
Statesman. Thus, I rely on this conduct only as evidence of surface bar-
gaining.
168 Haberman also testified that the Respondent made a concession
regarding the seniority provision, when it agreed to Johnson’s proposal
to allow plant seniority to equal department seniority for anyone hired
prior to contract ratification, but then use department seniority moving
contract. In addition to discipline and promotions/transfers, the
Respondent sought to keep the attendance policy, tool allowance
policy, and voluntary layoff procedure outside the contract. The
Respondent’s contract proposals also gave it unilateral control
over overtime, work schedules, and the number of holidays.
Despite the litany of bargaining waivers being sought, the Re-
spondent did not, at any point in bargaining, offer any significant
carrot to the Union in return. Indeed, the only concessions the
Respondent points to in its proposals are to the discipline and
promotions/ transfers provisions. The Respondent’s final pro-
posals on these matters required it to give the Union 45 days’
notice of any changes and the opportunity to “meet and confer”
over them “in an attempt to reach an agreement.” If no agree-
ment was reached, the Respondent could implement the changes,
shortly after it notified employees of them. Thus, the so-called
concessions did not alter the bottom line: at the end of the day,
the Respondent could implement whatever changes it wanted,
absent agreement from the Union. This meant the Union still
was waiving its right to bargain to agreement or impasse on any
proposed changes. Roberts assessment that these concessions
were “window dressing” was an accurate characterization.
Agreeing to these proposals would have left the Union in a worse
position than having no contract.168
Moreover, the Respondent repeatedly sent mixed signals
about the effects of keeping the policies outside the contract. Ha-
berman made inconsistent statements, including in the same
meeting, concerning whether the Union would be waiving its
right to bargain over changes to the policies by agreeing to the
company’s proposals. On April 12, Haberman told Roberts that
the NLRB would require bargaining over any changes, even if
the policies were outside the collective-bargaining agreement.
But then, he acknowledged the contract proposal only required
the Respondent to meet and discuss any changes it wanted to
make and conceded the Respondent ultimately could make
changes without the Union’s consent. At the June 13-14 sessions
where the Respondent changed its “meet and discuss” language
to “meet and confer,” Haberman told Roberts “meet and confer”
did not rise to the level of bargaining. How he came to this con-
clusion is unknown, because Section 8(d) of the Act uses those
exact words to define what it means to bargain collectively. Par-
sons Electric, LLC, 361 NLRB 207, 212 (2014). In the earlier
April 12 meeting, Haberman acknowledged this, saying “the
NLRB would disagree,” when Roberts told him meeting and
conferring about changes was not bargaining. An objective read-
ing of the Respondent’s final contract proposals in these areas is
that it would be required to bargain with the Union for 45 days
over any proposed changes, after which it could implement them
unilaterally absent agreement. But Haberman never explicitly
set forth or agreed to that interpretation during bargaining.169
forward. (Tr. 2181–2182.) But Haberman told Roberts during negotia-
tions that the Respondent had no “dog in this hunt” on seniority and
“didn’t really care” what was used. (Tr. 1172.) Thus, the Respondent’s
willingness to agree to Johnson’s proposal cannot properly be character-
ized as a concession.
169 In justifying its insistence on keeping certain provisions outside
the contract, the Respondent argues the Union likewise made contract
proposals that left certain subjects, including health insurance and a
BEMIS COMPANY, INC. 53
Haberman also told Roberts multiple times that, if the Re-
spondent did not comply with the discipline policy, the Union
could invoke the grievance and arbitration procedure. In addi-
tion, Haberman told Roberts repeatedly that, irrespective of it not
being in the contract or policy, an arbitrator would use a “just
cause” standard in evaluating any discipline issued to an em-
ployee. He apparently based this on the statement in the over-
view section of the discipline policy that its purpose was “to en-
sure that all employees are treated fairly and with dignity and
respect.” Even so, the only way the Union could grieve the Re-
spondent’s failure to adhere to the policy and an arbitrator could
require employees to be treated “fairly” when disciplined would
be if the policy was incorporated by reference into the contract,
because it was mentioned in the Respondent’s contract language.
See, e.g., Omaha World-Herald, 357 NLRB 1870, 1870–1872
(2011); BP Amoco Corp. v. NLRB, 217 F.3d 869, 873–874
(2000). Indeed, Haberman testified at one point that:
In fact, we’ve got a grievance and arbitration provision that I
think talks about that. And even with these policies I’ve talked
about, they are essentially incorporated into the contract. There
is no way an arbitrator would ever allow us to say that our dis-
cipline policy is not subject to the grievance and arbitration pro-
vision.170
If Haberman actually did have that view and the policies were
incorporated by reference, he was spinning his wheels in negoti-
ations by continually insisting on the policies being outside the
contract and the Respondent’s intransigent position is strong ev-
idence of bad-faith bargaining. If he did not, his statements to
Roberts that the Union could grieve the Respondent’s failure to
follow its discipline policy and arbitrators would use a just cause
standard to evaluate discipline are far from certain. The tentative
agreement on grievance and arbitration allows Union challenges
only for alleged violations of the collective-bargaining agree-
ment. It also limits the arbitrator’s authority to interpretation of
specific provisions of the contract. The procedure says nothing
about internal policies outside the contract. Furthermore, the dis-
cipline policy does not contain a specific standard for evaluating
discipline issued to an employee. An arbitrator would have to
infer that the introductory statement saying the policy’s purpose
was to ensure employees were treated “fairly” was the standard
to be applied, even though the policy does not say so. The Re-
spondent’s repeated mixed signals meant the Union was never
given a clear picture as to what exactly it would be agreeing to if
the policies were kept outside the contract. They are indicative
of a lack of good faith to find middle ground and reach an agree-
ment
The Respondent also rejected numerous union proposals
which would have enabled the Union to more easily communi-
cate with employees. The Respondent would not agree to
providing the Union with notice of all employee discipline, even
though the Union is obligated to represent all employees at the
401(k) plan, outside the contract. (GC Exh. 787, pp. 7, 12; Tr. 2166–
2167.) The argument lacks merit, as the Union’s contract proposals spe-
cifically stated that the Respondent’s health insurance and 401(k) plans
would be incorporated by reference into the contract. Moreover, by do-
ing so, the Union was making the plan documents part of the contract as
facility and is entitled to that information upon request. The Re-
spondent refused to provide the Union with a bulletin board, say-
ing it would separate employees. An explanation as to how it
would do that was never provided, but the more likely scenario
is that communications on a union board might influence how
nonsupporters viewed the Union. Even before that, the Respond-
ent required the Union to obtain its approval to post anything and
demanded changes to communications before giving its ap-
proval. The Respondent also rejected expanding the Union’s ac-
cess to its facility beyond that necessary to address employee
disciplinary issues. This conduct reflects the Respondent’s de-
sire to limit the Union’s ability to obtain further employee sup-
port and to maintain the division reflected in the May 2016 elec-
tion.
The Respondent also engaged in dilatory tactics designed to
draw out negotiations for as long as possible without reaching an
agreement. First, the Respondent’s unlawful refusal to meet at
reasonable times warrants an inference of bad faith. See, e.g.,
Kitsap Tenant Support Services, Inc., 366 NLRB No. 98, slip op.
at 5–6, 8 (2018); Regency Service Carts, Inc., 345 NLRB 671,
672 (2005). The strict adherence to averaging only one bargain-
ing trip per month and the refusal to increase the number of bar-
gaining days during a trip or the number of trips as the negotia-
tions dragged on is particularly telling.
Second, the Respondent hemmed and hawed about moving on
to economics. When Roberts first suggested getting into eco-
nomics on May 3, Haberman said he “wanted some time.” At
that point, the parties already had bargained for 18 days and were
approaching the end of the Union’s certification year. Nearly a
month later on May 31, Haberman again deferred, telling Rob-
erts he wanted to maintain the focus on noneconomics. Although
he invited the Union to make an economics proposal, he prede-
termined that he would be unlikely to respond to it at that session.
He said the Respondent could start working on it at the next ses-
sion but would not have a full proposal until the following ses-
sion thereafter, some two months later. At no point did he offer
an explanation as to why the Respondent needed all this time to
draft an economics proposal. At the beginning of bargaining on
July 25−26, Haberman told Roberts he needed a “clear explana-
tion” from the Union regarding their proposals on five noneco-
nomic issues: discipline, promotions/transfers, grievance and ar-
bitration, leave of absences for union business, and seniority. At
that time, the parties had bargained for 22 days and the Union’s
positions on the issues did not lack clarity. But the next 2 days
were spent discussing noneconomics, until the Respondent fi-
nally submitted its first, partial economic proposal at the end of
the day on July 26.
Third, the Respondent continually pushed paper across the ta-
ble, submitting so-called counterproposals to the Union which
were the same as previously submitted proposals or contained no
substantive language changes. For example, during bargaining
on February 7-8, the Respondent submitted a promotions and
well, meaning the Respondent could make any changes, annual or other-
wise, that were authorized in those plan documents. Thus, the Union’s
proposals inured to the Respondent’s benefit.
170 Tr. 2163.
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
transfers proposal which changed “HR Office” to “Human Re-
sources Department.” On March 29, the Respondent added lan-
guage to the same provision stating its internal policy on filling
open positions was “applicable to all employees covered by this
Agreement.” In its June 1 proposal on the same topic, the Re-
spondent changed “Employees not selected for interviews will
be notified of the reason(s) for not being selected” to “Employ-
ees not interviewed shall be provided the reason(s) for not being
selected.” In its seniority proposal dated September 12, the Re-
spondent changed the sentence “Continued seniority in no way
confers a right to benefits unless specifically set forth in this
Agreement” to “Continued seniority shall not confer a right to
continued benefits unless specifically set forth in this Agree-
ment.” Its seniority proposal the next day added “/voluntary re-
signs” after “An employee quits.” In its third economic proposal
dated October 10, the Respondent deleted “at its sole discretion”
from the sentence “Time outside the normal workday or work-
week shall be performed as assigned by the Company at its sole
discretion.” In its November 29 grievance and arbitration pro-
posal, the Respondent changed the word “borne” to “paid for” in
a sentence concerning fees and expenses. In its February 2, 2018
layoff proposal, the Respondent changed “seniority in the depart-
ment” to “department seniority.” Finally, in its fourteenth sen-
iority proposal dated April 18, the Respondent changed the word
“that” to “the” in one sentence. It also added the word “while”
twice to its promotions and transfers policy. This conduct does
not reflect an intention to bridge the gap between the two sides
and reach an agreement.
Finally, the Respondent’s unlawful conduct away from the
bargaining table was substantial and strongly demonstrates bad
faith. The Respondent made numerous unilateral changes to em-
ployees’ terms and conditions of employment while bargaining
was ongoing. The violations included: the permanent layoffs of
four employees; the elimination of the ink controller and mainte-
nance laborer job classifications; the temporary layoffs of nu-
merous employees; changing employees’ number of work days
from 10 to 7 and work schedules from 8-hour to 12-hour shifts;
and changing the work schedules and hours of employees on re-
stricted work schedules. The unlawful change in work shifts to
12 hours is particularly noteworthy for the jarring impact on em-
ployees’ day-to-day lives. Making the move unilaterally sent a
strong message to employees suggesting the Union’s efforts on
their behalf were futile and the Union was irrelevant to their
working conditions. The Respondent also dealt directly with
employees when it offered the permanently laid off employees
severance agreements, in exchange for a waiver of claims, after
telling the Union it would deal directly with those employees on
their layoffs. Taken as a whole, the unilateral changes demon-
strate the Respondent wanted to continue doing things its own
way, despite the Union having become the employees’ bargain-
ing representative. At the table, the Respondent wished to main-
tain “flexibility” allowing it to move employees around, change
their schedules, or let them go, all the same things it was doing
171 GC Exh. 16, p. 51; Tr. 1917.
172 The General Counsel also argues that the Respondent unlawfully
applied this rule when it banned all locker room postings by employees
in March 2017. However, in its memo to employees announcing that
unilaterally at the plant. Thus, a nexus exists between the un-
lawful acts and the Respondent’s conduct in negotiations suffi-
cient to show the Respondent did not intend to bargain in good
faith. Mid-Continent Concrete, 336 NLRB 258, 261 (2001).
Moreover, the Respondent’s unlawful conduct did not end there.
The Respondent discharged Hesler due to her strong union sup-
port and permanently laid off Morlan because he was not anti-
union. It banned locker room postings to prevent Union news-
letters from being posted. It downgraded an employees’ evalua-
tion because she tried to convince another employee to support
the Union. These other contemporaneous unfair labor practices
likewise show an intent to undermine the Union and bolster the
finding that the Respondent was not negotiating in good faith.
Coal Age Service Corp., 312 NLRB 572, 572–573 (1993). Fi-
nally, much of this unlawful conduct occurred in close proximity
to the end of the Union’s certification year. The Respondent was
well aware of the Union’s margin of victory in the initial elec-
tion, with Haberman commenting to Roberts at the table about
the Union’s “narrow win” and Augustiniak telling McMeins that
it was a “very close vote.” The Respondent knew it only had to
turn a few employee votes for a decertification effort to be suc-
cessful.
When looking at the totality of the Respondent’s conduct, as
the law requires, the final portrait displays an employer who
wanted to convince its employees they were worse off for having
chosen to be represented by the Union. The Respondent attended
numerous bargaining sessions and exchanged many proposals,
but I conclude it simply was going through the motions in doing
so and did not intend to reach an initial contract with the Union.
The Respondent engaged in surface bargaining.
VII. ADDITIONAL ALLEGED EMPLOYEE HANDBOOK VIOLATIONS
(COMPLAINT PARAGRAPH 7)
Finally, the General Counsel’s complaint alleges the Re-
spondent unlawfully maintained four additional rules in its em-
ployee handbook.
A. The No-Distribution Rule
The Respondent’s handbook includes “Plant Guidelines &
Generally Accepted Work Rules.” This section’s stated purpose
is to set forth “generally acceptable behavior to create and main-
tain a safe, healthy, productive and teamwork environment at Be-
mis.” One of the guidelines is:
8. Do not post, distribute or remove notices, signs or written
material on Company property at any time without specific ap-
proval of plant management.
Dees, the Respondent’s senior HR director, testified that the
rule’s purpose was to maintain a professional work environment,
given that customers regularly visit the Centerville plant and the
Respondent is a food-grade provider.171
The General Counsel contends this rule is unlawful, because
it prohibits distribution of any written material on “company”
property at any time.172 As previously noted, prohibitions on
posting ban, the Respondent relied upon its nonsolicitation policy, not
the posting ban described here. (GC Exh. 20.) Thus, the rule cannot be
found unlawful on that basis.
BEMIS COMPANY, INC. 55
employee distribution of union literature during nonworking
times in nonworking areas are presumptively unlawful, unless
the employer can affirmatively demonstrate the restriction is
necessary to protect a proper interest. Waste Mgmt. of Arizona,
Inc., 345 NLRB 1339, 1346 (2005). In addition, any rule that
requires employees to secure permission from their employer as
a precondition to engaging in protected activity on the employ-
ees’ own time and in nonwork areas is unlawful. Chromalloy
Gas Turbine Corp., 331 NLRB 858, 858–859 (2000), citing to
Brunswick Corp., 282 NLRB 794 (1987).
Given that precedent, no question exists that the Respondent’s
maintenance of the distribution ban violates Section 8(a)(1). The
prohibition is not limited to work times and/or work areas. As
with “company time,” the term “company property” is overbroad
and can be reasonably construed by employees as applying to
nonwork areas. The rule’s requirement that employees obtain
the approval of management to distribute anything likewise ren-
ders the rule unlawful. Dees’ blanket assertion that the rule is
needed to maintain a professional work environment when cus-
tomers visit the facility is insufficient to establish a proper inter-
est, especially given the rule’s all-encompassing breadth. Dees
offered no specifics on how allowing employee distribution in
nonwork areas during nonwork time would impact, if at all, cus-
tomers visiting the facility or would make the work environment
unprofessional.173
B. The Ban on False or Malicious Statements
The plant guidelines section of the Respondent’s employee
handbook also contains this rule:
18. Do not make or publish false, vicious or malicious state-
ments concerning any employee, supervisor, the company or
its products.
Dees testified the ban on false or malicious statements is the Re-
spondent’s “golden rule” reflecting its “core value of treating
each other with respect.”174
In Boeing Co., 365 NLRB No. 154 (2017), reconsideration de-
nied 366 NLRB No. 128 (2018), the Board set forth a new ana-
lytical framework for determining whether facially neutral rules
violate Section 8(a)(1). The initial determination to be made is
whether the rules, when “reasonably interpreted,” “focusing on
the employee’s perspective,” would potentially interfere with the
exercise of Section 7 rights. If so, a balancing test is applied, to
determine if the nature and extent of the potential impact on the
Act’s rights outweighs the legitimate justifications associated
with the rule. 365 NLRB No. 154, slip op. at 3, 16.
Prior to Boeing, the Board routinely found rules prohibiting
false statements to be unlawful. See, e.g., First Transit, Inc., 360
NLRB 619, 629 (2014); LaFayette Park Hotel, 326 NLRB 824,
828 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999). However, in
Boeing, the Board held that rules “requiring employees to abide
by basic standards of civility” were lawful to maintain. 365
NLRB No. 154, slip op. at 3–4, 15. Here, the Respondent’s
guidelines, including this rule, establish acceptable behavior
173 The Respondent offers no specific defense to this allegation. It
generally defended the unlawful rule allegations by relying on Boeing
Co., 365 NLRB No. 154 (2017). As previously noted, that decision had
with a goal of creating a teamwork environment. The ban on
false statements also ensures employees treat each other with re-
spect. Accordingly, the rule provides a basic standard of civility
and is lawful.
C. The Social Media Rule
In its handbook, the Respondent also maintains a social media
policy, stating:
Employees are expected to be respectful and professional when
using social media tools. With the rise of websites like Face-
book, MySpace, and LinkedIn, the way in which employees
can communicate internally and externally continues to evolve.
We expect our employees to exercise judgment in their com-
munications relating to Bemis so as to effectively safeguard the
reputation and interests of Bemis.
Employees should:
 Communicate in a respectful and professional manner;
 Avoid disclosing proprietary information; and
Each employee is responsible for respecting the rights of their
co-workers and conducting themselves in a manner that does
not harass, disrupt, or interfere with another person’s work per-
formance or in a manner that does not create an intimidating,
offensive, or hostile work environment.
Dees testified that the Respondent wants employees to be mind-
ful of what they post on social media. She stated the Respondent
and its customers spend a lot of time and money branding their
products. She added the Respondent does not want employees
to post anything that could jeopardize either the company or its
customers. Dees provided one example of this, where an em-
ployee posted a photograph on Twitter of an upcoming customer
promotion which had not been released yet to the public. The
customer was very angry over it and the Respondent’s corporate
leaders had to explain to the customer the steps taken to insure it
would not happen again.175
The General Counsel alleges that the rule’s first paragraph is
unlawful. The paragraph’s initial sentence, instructing employ-
ees to be “respectful and professional” when using social media,
appears to be a basic standard of civility under Boeing. How-
ever, as written, the instruction applies to all social media use by
employees. The second sentence likewise references employ-
ees’ external communications outside the workplace. Because
both sentences apply to private social media activity, they signif-
icantly impact employees’ discussions about their working con-
ditions. The last sentence of the rule instructs employees to
avoid communications on social media which would harm the
reputation of the Respondent. But employees have the right to
communicate with each other about their terms and conditions of
employment. They also have the right to seek support from the
public over their working conditions. See, e.g., Boch Honda,
362 NLRB 706, 715–716 (2015); Kinder-Care Learning Cen-
ters, 299 NLRB 1171, 1171–1172 (1990). Thus, as to the initial
determination required by Boeing, all three sentences potentially
no impact on the Board’s standard for evaluating rules banning solicita-
tion and distribution.
174 GC Exh. 16, p. 51; Tr. 1918.
175 GC Exh. 16, p. 25; Tr. 1916, 1918–1919.
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
interfere with Section 7 rights. The remaining rule language
does not cure the defects. Moving to the Boeing balancing test,
the Respondent’s only justification for the rule was to protect its
and its customers’ brand. But requiring employees not to post
anything harmful to the Respondent’s reputation is an attempt to
shield the company from criticism by its employees, a protected
right. Jimmy John’s, 361 NLRB 283, 284 (2014); Southern Mar-
yland Hospital, 293 NLRB 1209, 1222 (1989). The specific ex-
ample provided by Dees could be addressed with a rule much
more narrowly written than this paragraph. The rule’s broad
reach would have a significant impact on the exercise of Section
7 activity, far outweighing the Respondent’s stated justification.
Accordingly, the first paragraph of the Respondent’s social me-
dia rule violates Section 8(a)(1).
D. The Off-Duty Access to Company Property Rule
In its handbook, the Respondent maintains the following rule
governing “off-duty access to company property.”
Employees are not to remain on or enter company property un-
less: scheduled to work, attending a company-sponsored event,
or meeting with a Supervisor or Human Resources Representa-
tive. To be on company property for any other reason will re-
quire approval by a supervisor or a member of management
from the facility.
Dees testified that this rule is necessary to keep employees safe
by knowing their whereabouts during a natural or other emer-
gency at the facility. She also said the rule protects the Respond-
ent from incurring liability, if an employee is injured while hang-
ing out in the plant parking lot.176
In Tri-County Medical Center, 222 NLRB 1089 (1976), the
Board held that a rule restricting employees access to outside ar-
eas of a facility are valid only if it (1) limits access solely with
respect to the interior of the plant and other working areas; (2) is
clearly disseminated to all employees; and (3) applies to off-duty
employees seeking access to the plant for any purpose and not
just to those employees engaging in union activity. The Board
also found that a rule which denies off-duty employees entry to
parking lots, gates, and other outside nonworking areas will be
found invalid. In Boeing Co., the Board looked favorably upon
Tri-County Medical Center, because the standard set forth
therein balanced employees’ rights with an employer’s interests
in determining whether the rule was lawful. 365 NLRB No. 154,
slip op. at 8 fn. 32 (2017). Under Tri-County, the Respondent’s
off-duty access rule is unlawful, because it does not limit access
solely with respect to the interior of the plant and other working
areas. Again, the use of the term “company property” includes
nonwork areas outside the plant. That includes parking lots, an
area Dees mentioned as being restricted.177
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a Section 2(5) labor organization and the des-
ignated exclusive collective-bargaining representative of the
176 GC Exh. 16, p. 10; Tr. 1919.
following appropriate unit of the Respondent’s employees: All
full-time and regular part-time production employees working in
extrusion, press and pre-press, and finishing departments; and all
full-time and regular part-time employees working in mainte-
nance, quality assurance, distribution, and shipping and receiv-
ing departments; excluding office clerical, sales, engineers, tem-
porary employees, and supervisors and guards as defined in the
Act, as amended.
3. The Respondent violated Section 8(a)(1) by, at all material
times, maintaining its nonsolicitation, no distribution, social me-
dia, and off-duty access to company property rules.
4. The Respondent violated Section 8(a)(1) by, on March 27,
2017, banning employee postings on their lockers, pursuant to
its unlawful nonsolicitation rule and in response to employees’
union activity.
5. The Respondent violated Section 8(a)(1) by, on April 9,
2017, stating in Elizabeth Nichols’ appraisal that her lower rating
in “Work Relationships” was due to her union activity.
6. The Respondent violated Section 8(a)(1) by, on June 23,
2017, instructing Philip McMeins, a supervisor, to engage in sur-
veillance of Nichols’ union activity.
7. The Respondent violated Section 8(a)(3) by, on April 9,
2017, downgrading Elizabeth Nichols’ appraisal due to her un-
ion activity.
8. The Respondent violated Section 8(a)(3) by, on July 7,
2017, permanently laying off Kent Morlan rather than an em-
ployee opposed to the Union.
9. The Respondent violated Section 8(a)(3) by, on July 28,
2017, discharging Linda Hesler due to her union activity.
10. The Respondent violated Section 8(a)(5) by, on June 26,
2017, unilaterally implementing voluntary layoffs of employees
and involuntarily laying off Jeff McClurg, Elizabeth Nichols,
Brian Shives, both on a temporary basis.
11. The Respondent violated Section 8(a)(5) by, on July 7,
2017, unilaterally and permanently laying off Coty Gearin, Tyler
Lewis, Kent Morlan, and Chet Varner.
12. The Respondent violated Section 8(a)(5) by, on July 7,
2017, unilaterally eliminating the bargaining unit job classifica-
tions of ink controller and maintenance laborer.
13. The Respondent violated Section 8(a)(5) by, on July 7,
2017, bypassing the Union and dealing directly with bargaining
unit employees by offering them severance agreements in con-
nection with their permanent layoffs.
14. The Respondent violated Section 8(a)(5) by, since August
9, 2017, refusing to furnish the Union with relevant information
the Union requested.
15. The Respondent violated Section 8(a)(5) by, on December
31, 2017, unilaterally changing employees’ workdays and sched-
ules, without providing the Union with notice and an opportunity
to bargain over the changes.
16. The Respondent violated Section 8(a)(5) and 8(d) by,
from November 1, 2016 through April 26, 2018, refusing to meet
with the Union at reasonable times for bargaining an initial col-
lective-bargaining agreement.
177 In his brief, the General Counsel moves to withdraw the allegation
in paragraph 7 of the complaint that the Respondent’s computer use pol-
icy violated Sec. 8(a)(1). I grant the unopposed motion.
BEMIS COMPANY, INC. 57
17. The Respondent violated Section 8(a)(5) by failing to bar-
gain in good faith with the Union for an initial collective-bar-
gaining agreement through its overall conduct from November
1, 2016 through April 26, 2018.
18. The above unfair labor practices affect commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
19. The Respondent has not violated the Act in any of the
other manners alleged in the complaint.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Among those actions and to remedy the un-
lawful discharge of Linda Hesler, as well as the unlawful perma-
nent layoffs of Coty Gearin, Tyler Lewis, Kent Morlan, and Chet
Varner, I shall order the Respondent to offer Hesler, Gearin,
Lewis, Morlan, and Varner full reinstatement to their former po-
sitions or, if the positions no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or other rights
and privileges they previously enjoyed, and to make Hesler,
Gearin, Lewis, Morlan, and Varner whole for any loss of earn-
ings and other benefits attributable to the unlawful conduct. The
Respondent must remove from its files any references to the un-
lawful discharge of Hesler and the unlawful layoff of Morlan and
notify them in writing that this has been done and that the unlaw-
ful actions will not be used against them in any way. Upon re-
quest, the Respondent must rescind its elimination of the ink con-
troller and maintenance laborer job classifications. Having
found the Respondent violated Section 8(a)(5) by unilaterally
implementing voluntary layoffs and involuntarily laying off Jeff
McClurg, Elizabeth Nichols, and Brian Shives for 2 weeks, I
shall order the Respondent to make McClurg, Nichols, and
Shives, as well as any other affected employees, whole for any
loss of earnings and other benefits attributable to this unlawful
conduct.
The make-whole remedy for the above-described violations
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New
Horizons, 283 NLRB 1173 (1987), compounded daily as pre-
scribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
In accordance with Don Chavas, LLC d/b/a Tortillas Don Cha-
vas, 361 NLRB 101 (2014), the Respondent shall compensate
the employees for the adverse tax consequences, if any, of re-
ceiving lump-sum backpay awards, and, in accordance with Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016), the Re-
spondent shall, within 21 days of the date the amount of backpay
is fixed either by agreement or Board order, file with the Re-
gional Director for Region 18 a report allocating backpay to the
appropriate calendar year for each employee. The Regional Di-
rector will then assume responsibility for transmission of the re-
port to the Social Security Administration at the appropriate time
and in the appropriate manner. In accordance with King Soop-
ers, Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859
F.3d 23 (D.C. Cir. 2017), the Respondent must compensate Hes-
ler, Gearin, Lewis, Morlan, and Varner for their search-for-work
and interim employment expenses regardless of whether those
expenses exceed interim earnings. Search-for-work and interim
employment expenses shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in New Ho-
rizons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
Having found that the Respondent violated Section 8(a)(5)
and (1) by changing the terms and conditions of employment of
its unit employees without first notifying the Union and giving it
an opportunity to bargain, I shall order the Respondent to rescind
the unlawful unilateral changes it made, upon request from the
Union. The Respondent also must make unit employees whole
for any loss of earnings and other benefits attributable to its un-
lawful unilateral changes. In this regard, backpay shall be com-
puted in accordance with Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at
the rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Cen-
ter, 356 NLRB 6 (2010). Again, the Respondent must compen-
sate affected employees for the adverse tax consequences, if any,
of receiving lump-sum backpay awards, and file with the Re-
gional Director for Region 18, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board order,
a report allocating the backpay awards to the appropriate calen-
dar years for each employee. AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016).
Because the Respondent violated Section 8(a)(5) and (1) of
the Act by refusing to bargain in good faith and violated Section
8(a)(5) and 8(d) by refusing to meet at reasonable times, I rec-
ommend that the Respondent be ordered to meet, upon request,
with the Union and bargain in good faith concerning the terms
and conditions of employment of the unit employees and, if
agreement is reached, to embody such agreement into a signed
contract.
In addition to the standard remedy of a cease-and-desist and
an affirmative bargaining order, the General Counsel seeks an
extension to the Union’s certification year. See Mar-Jac Poultry
Co., 136 NLRB 785, 787 (1962). In Mar-Jac, the Board held
that the certification year can be extended where employer unfair
labor practices impacted bargaining. In determining the length
of any extension, the Board considers the nature of the viola-
tions; the number, extent, and dates of the collective-bargaining
sessions; the impact of the unfair labor practices on the bargain-
ing process; and the conduct of the union during negotiations.
American Medical Response, 346 NLRB 1004, 1005 (2006).
Here, the Respondent engaged in surface bargaining and failed
to meet at reasonable times during a period of approximately 18
months. It also made numerous unlawful unilateral changes to
employees’ working conditions. The Respondent committed
many additional violations of the Act, due to employees’ union
sentiments or support. The purpose of these violations, in sum,
was to convince enough employees to abandon their support of
the Union, such that a decertification vote would have a different
outcome than the initial election. Thus, despite the parties meet-
ing numerous times for bargaining and reaching some tentative
agreements, the Union was not afforded a full opportunity to bar-
gain during the certification year. Under these circumstances, I
conclude that a 12-month extension to the certification year is
appropriate. HTH Corp., 356 NLRB 1397, 1403 (2011). In ad-
dition, the General Counsel requests a minimum bargaining
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
schedule of four days per months of at least six hours per day, or
another schedule agreed to by the Union. It also requests that
written bargaining progress reports be submitted every 30 days
to the compliance officer of Region 18. Because of the Respond-
ent’s dilatory tactic of failing to meet at reasonable times, I con-
clude the requested schedule and written progress reports are
proper. UPS Supply Chain Solutions, Inc., 366 NLRB No. 111,
slip op. at 4 (2018); Professional Transportation, Inc., 362
NLRB 534, 536 (2015).178
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended179
ORDER
The Respondent, Bemis Company, Inc., Centerville, Iowa, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Maintaining its rules on nonsolicitation, no distribution,
social media, and off-duty access to company property.
(b) Enforcing its nonsolicitation policy to ban employee post-
ings on their lockers, in response to employees’ union activity.
(c) Telling employees their performance appraisals were
downgraded due to their union activity.
(d) Downgrading employees’ appraisals due to their union
activity.
(e) Instructing supervisors to engage in surveillance of em-
ployees’ union activity.
(f) Permanently laying off employees due to other employees’
antiunion activities.
(g) Discharging employees due to their union activity.
(h) Laying off employees without providing the Union with
notice and an opportunity to bargain.
(i) Eliminating bargaining unit job classifications, without
providing the Union with notice and an opportunity to bargain.
(j) Bypassing the Union and dealing directly with employees
regarding their terms and conditions of employment.
(k) Unilaterally changing employees’ workdays and sched-
ules, without providing the Union with notice and an opportunity
to bargain over the changes.
(l) Refusing to provide the Union with requested information
relevant to the Union’s duties as the exclusive collective-bar-
gaining representative of unit employees.
(m) Failing to meet at reasonable times for bargaining a con-
tract with the Union;
(n) Failing to bargain in good faith with the Union as the ex-
clusive collective-bargaining representative of the employees in
the following appropriate unit (the “Unit”):
All full-time and regular part-time production employees
working in extrusion, press and pre-press, and finishing depart-
ments; and all full-time and regular part-time employees work-
ing in maintenance, quality assurance, distribution, and ship-
ping and receiving departments; excluding office clerical,
sales, engineers, temporary employees, and supervisors and
guards as defined in the Act, as amended.
178 I also find these two special remedies sufficient to address the level
of severity of the Respondent’s unfair labor practices. Therefore, I de-
cline the General Counsel’s request that the Union be reimbursed for its
bargaining expenses.
(o) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) On request, bargain in good faith and at reasonable times
with the Union as the exclusive collective-bargaining representa-
tive of the Unit employees concerning terms and conditions of
employment until a full agreement or bona fide impasse is
reached, and, if an understanding is reached, embody the under-
standing in a signed, written agreement. The Union’s certifica-
tion is extended for 12 months from the date the Respondent be-
gins to comply with this Order. Upon the Union’s request, bar-
gaining sessions shall be held for a minimum of 4 days per
month, at least 6 hours per session, or, in the alternative, on an-
other schedule to which the Union agrees. A written progress
report will be submitted every 30 days to the compliance officer
for Region 18, with a copy served on the Union.
(b) Within 14 days from the date of this Order, offer Linda
Hesler and Kent Morlan reinstatement to their former positions
or, if their jobs no longer exist, to a substantially equivalent po-
sition, without prejudice to their seniority or other rights or priv-
ileges previously enjoyed.
(c) Make Linda Hesler and Kent Morlan whole for any loss
of earnings and other benefits suffered as a result of the discrim-
ination against them, in the manner set forth in the remedy sec-
tion of this decision.
(d) Compensate Linda Hesler and Kent Morlan for the ad-
verse tax consequences, if any, of receiving a lump-sum backpay
award, and file a report with the Regional Director for Region
18, within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, allocating the backpay
award to the appropriate calendar years for each employee.
(e) Within 14 days from the date of this Order, remove from
its files any references to the unlawful discharge of Linda Hesler
and the unlawful layoff of Kent Morlan and, within 3 days there-
after, notify them in writing that this has been done and that these
unlawful acts will not be used against them in any way.
(f) Before implementing any changes in wages, hours, or
other terms and conditions of employment of unit employees,
notify and, on request, bargain with the Union as the exclusive
collective-bargaining representative of the Unit employees.
(g) Within 14 days from the date of this Order, offer Coty
Gearin, Tyler Lewis, Kent Morlan, and Chet Varner reinstate-
ment to their former positions or, if their jobs no longer exist, to
substantially equivalent positions, without prejudice to their sen-
iority or other rights or privileges previously enjoyed.
(h) Make Coty Gearin, Tyler Lewis, Kent Morlan, and Chet
Varner whole for any loss of earnings or other benefits suffered
as a result of their unlawful permanent layoffs, in the manner set
forth in the remedy section of this decision.
(i) Compensate Coty Gearin, Tyler Lewis, Kent Morlan, and
Chet Varner for the adverse tax consequences, if any, of
179 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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 purposes.
BEMIS COMPANY, INC. 59
receiving a lump-sum backpay award, and file a report with the
Regional Director for Region 18, within 21 days of the date the
amount of backpay is fixed, either by agreement or Board order,
allocating the backpay award to the appropriate calendar years
for each employee.
(j) Upon request from the Union, rescind the July 7, 2017,
elimination of the ink controller and maintenance laborer job
classifications.
(k) Within 14 days from the date of this Order, offer employ-
ees who previously held the positions of ink controller and
maintenance laborer reinstatement to their former positions with
the same wages, benefits, and other terms and conditions of em-
ployment that existed prior to July 7, 2017, or if those jobs no
longer exist, to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privileges previously
enjoyed.
(l) Make the former ink controllers and maintenance laborers
whole for any loss of earnings and other benefits suffered as a
result of the elimination of these positions, in the manner set
forth in the remedy section of this decision.
(m) Compensate the former ink controllers and maintenance
laborers for the adverse tax consequences, if any, of receiving
lump-sum backpay awards, and file with the Regional Director
for Region 18, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, a report allocating
the backpay awards to the appropriate calendar years for each
employee.
(n) Make Jeff McClurg, Elizabeth Nichols, Brian Shives, and
any other affected employee whole for any loss of earnings or
other benefits suffered as a result of their unlawful temporary
layoffs, in the manner set forth in the remedy section of this de-
cision.
(o) Compensate Jeff McClurg, Elizabeth Nichols, Brian
Shives, and any other affected employee for the adverse tax con-
sequences, if any, of receiving a lump-sum backpay award, and
file a report with the Regional Director for Region 18, within 21
days of the date the amount of backpay is fixed, either by agree-
ment or Board order, allocating the backpay award to the appro-
priate calendar years for each employee.
(p) Upon request from the Union, rescind the changes to em-
ployees’ work schedules.
(q) Make whole any employees who were adversely affected
by changes to their work schedules implemented on December
31, 2017.
(r) Rescind the “work performance” rating and narrative in
Elizabeth Nichols’ April 9, 2017 appraisal and notify her in writ-
ing that this has been done and the downgraded rating will not
be used against her.
(s) Rescind the nonsolicitation, no distribution, social media,
and off-duty access to company property rules.
(t) Furnish all current employees with inserts for the current
employee handbook that (1) advise that the unlawful nonsolici-
tation, no distribution, social media, and off-duty access to
180 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 National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
company property rules have been rescinded, or (2) provide the
language of a lawful policy.
(u) Rescind the ban on employee postings on their lockers and
advise employees that this has been done.
(v) Furnish to the Union the information requested by the Un-
ion on August 8, 2017, insofar as such information has not al-
ready been furnished.
(w) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(x) Within 14 days after service by the Region, post at its
Centerville, Iowa, facility copies of the attached notice marked
“Appendix.”180 Copies of the notice, on forms provided by the
Regional Director for Region 18, after being signed by the Re-
spondent’s authorized representative, shall be posted by the Re-
spondent and maintained for 60 days in conspicuous places in-
cluding all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by
such means. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of
these proceedings, the Respondent has gone out of business or
closed the facilities involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed
by the Respondent at any time since November 1, 2016.
(y) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Regional Director attesting to the steps
the Respondent has taken to comply.
Dated, Washington, D.C. July 1, 2019.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain a rule prohibiting you from solicitation
during nonworking times in nonworking areas or from working
areas during nonworking time.
WE WILL NOT maintain a rule prohibiting you from distributing
or posting union literature during nonworking time in nonwork-
ing areas or requiring supervisory approval to do so.
WE WILL NOT maintain a social media rule that restricts your
ability to discuss your terms and conditions of employment with
other employees or members of the public.
WE WILL NOT maintain a rule restricting your access to non-
work areas outside the plant or requiring supervisory approval to
access those areas.
WE WILL NOT ban postings on employees’ lockers pursuant to
an unlawful nonsolicitation rule or due to union literature being
posted on employees’ lockers.
WE WILL NOT downgrade employees’ performance appraisals
due to their union activity.
WE WILL NOT tell employees that their lower performance ap-
praisal ratings are due to their union activity.
WE WILL NOT instruct supervisors to engage in surveillance of
employees’ union activity.
WE WILL NOT permanently lay off employees in order to retain
employees opposed to the Union.
WE WILL NOT discharge employees due to their union activity.
WE WILL NOT lay off employees, without providing Teamsters
Local 727-S (the Union) with notice and an opportunity to bar-
gain about the layoffs and their effects.
WE WILL NOT eliminate bargaining unit job classifications,
without providing the Union with notice and an opportunity to
bargain about the eliminations.
WE WILL NOT bypass the Union and deal directly with you re-
garding your terms and conditions of employment.
WE WILL NOT refuse to furnish the Union with information it
requested that is relevant to its duties as your collective-bargain-
ing representative.
WE WILL NOT change employees’ work schedules, without
providing the Union with notice and an opportunity to bargain
over the changes.
WE WILL NOT refuse to meet with the Union at reasonable
times to bargain for a collective-bargaining agreement.
WE WILL NOT fail to bargain in good faith with the Union as
the exclusive collective-bargaining representative of the employ-
ees in the following appropriate unit:
All full-time and regular part-time production employees
working in extrusion, press and pre-press, and finishing depart-
ments; and all full-time and regular part-time employees work-
ing in maintenance, quality assurance, distribution, and ship-
ping and receiving departments; excluding office clerical,
sales, engineers, temporary employees, and supervisors and
guards as defined in the Act, as amended.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, within 21 days of the Union’s request, bargain with
the Union as the exclusive collective-bargaining representative
of bargaining unit employees concerning terms and conditions
of employment and, if an understanding is reached, embody the
understanding in a signed agreement. The Union’s certification
year is extended for 12 months from the date Bemis Company
begins to comply with this Order. Upon the Union’s request,
bargaining sessions shall be held for a minimum of 4 days per
month, at least 6 hours per day, or, in the alternative, on another
schedule to which the Union agrees. Bemis Company will sub-
mit a written progress report every 30 days to the National Labor
Relations Board, with a copy served on the Union
WE WILL offer Linda Hesler and Kent Morlan immediate and
full reinstatement to their former job or, if their jobs no longer
exist, to a substantially equivalent position, without prejudice to
their seniority or any other rights or privileges they previously
enjoyed.
WE WILL pay Linda Hesler and Kent Morlan for the wages and
benefits they lost, because we unlawfully discharged Hesler and
unlawfully laid off Morlan.
WE WILL remove from our files all references to the discharge
of Linda Hesler and the layoff of Kent Morlan and WE WILL no-
tify them that this has been done, the discharge will not be used
against Hesler in any way, and the layoff will not be used against
Morlan in any way.
WE WILL, before implementing any changes in your wages,
hours, or other terms and conditions of employment, notify and,
on request, bargain with the Union.
WE WILL, if requested by the Union, rescind any unilateral
changes we made to your terms and conditions of employment,
without providing the Union with notice and an opportunity to
bargain, including changes to your work schedule associated
with our move to a 24/7 operation in Centerville and the elimi-
nation of the ink controller and maintenance laborer positions.
WE WILL offer employees who previously held the positions
of ink controller and maintenance laborer reinstatement to their
former positions or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights and privileges they previously enjoyed.
WE WILL make you whole for any losses suffered as a result
of our unlawful unilateral changes to your working conditions,
including the work schedule changes associated with our move
to a 24/7 operation in Centerville and the elimination of the ink
controller and maintenance laborer positions.
WE WILL offer Kent Morlan, Coty Gearin, Tyler Lewis, and
Chet Varner immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to a substantially equivalent
position, without prejudice to their seniority or any other rights
or privileges previously enjoyed, to the extent we have not al-
ready done so.
WE WILL pay Kent Morlan, Coty Gearin, Tyler Lewis, and
Chet Varner for the wages and other benefits lost, because we
permanently laid them off without providing the Union with no-
tice and an opportunity to bargain over the layoffs and their ef-
fects.
BEMIS COMPANY, INC. 61
WE WILL make Jeff McClurg, Elizabeth Nichols, Brian Shives
and any other affected employees whole for the wages and ben-
efits they lost as a result of our unlawful temporary layoffs of
them in July 2017.
WE WILL rescind our unlawful nonsolicitation, no posting, so-
cial media, and off-duty access to company property rules.
BEMIS COMPANY, INC.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/18-CA-202617 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half
Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.