Georgia Pacific Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1998

325 N.L.R.B. 867 (N.L.R.B. 1998)

867
325 NLRB No. 165
GEORGIA-PACIFIC CORP.
1 In adopting the hearing officer’s finding that the Employer en-
gaged in objectionable conduct by describing the employee bonus as
one developed for the Employer’s nonunion plants, we do not rely
on employee George Lee Sr.’s testimony that he assumed that the
employees would lose their bonuses if they voted for the Union.
2 In the absence of exceptions, the Board adopts, pro forma, the
hearing officer’s recommendation that the Petitioner’s Objections 4,
5, 6, and 6a be overruled.
3 We find no significance in Boykin’s testimony that his reference
to the nonunion plants was how he customarily started off his expla-
nation of the bonus plan.
4 Thus, our colleague’s contention that the statements were made
6 weeks before the election is an approximation.
Georgia-Pacific Corporation, Building Products
Manufacturing/Sales Softwood Lumber Divi-
sion, Central Division, El Dorado Sawmill and
United Paperworkers International Union,
AFL–CIO, Petitioner. Case 26–RC–7927
June 10, 1998
DECISION AND DIRECTION OF SECOND
ELECTION
BY CHAIRMAN GOULD AND MEMBERS LIEBMAN
AND HURTGEN
The National Labor Relations Board, by a three-
member panel, has considered objections to an election
held August 27, 1997, and the hearing officer’s report
recommending disposition of them. The election was
conducted pursuant to a Stipulated Election Agree-
ment. The tally of ballots shows 69 for and 73 against
the Petitioner, with 3 challenged ballots, an insufficient
number to affect the results.
The Board has reviewed the record in light of the
exceptions and briefs, and has adopted the hearing of-
ficer’s findings1 and recommendations,2 and finds that
the election must be set aside and a new election held.
The hearing officer found that the Employer en-
gaged in objectionable conduct when plant manager
Herman Boykin described the Employer’s bonus plan
as one ‘‘that was developed for [the Employer’s] non-
union plants in the Central Division.’’ Boykin de-
scribed the bonus plan in this fashion while announc-
ing, at two employee safety meetings prior to the elec-
tion, that employees would be receiving a quarterly
bonus. We agree with the hearing officer that Boykin’s
statement is objectionable.
It is well settled that an employer violates the Act
by making statements to employees suggesting they
will be automatically excluded from a benefit as soon
as they become represented by a union. See, e.g.,
Hertz Corp., 316 NLRB 672, 693, 695 (1995) (state-
ment that 401(k) plan ‘‘applies to non-union weekly
and bi-weekly salaried employees’’ violative of Sec-
tion 8(a)(1) of the Act). Applying this standard, we
find that Boykin’s statement to employees is objection-
able because it reasonably suggests that employees
would be foreclosed from participating in the bonus
plan if they were represented by a union. Boykin made
this statement while announcing the payment of a
quarterly bonus to employees during safety meetings,
thus linking the notion of the bonus plan’s existence
to a nonunion workforce. Indeed, although Boykin
made no direct reference to the Union’s organizing
campaign, neither did he attempt to place this state-
ment in a different context.3 In these circumstances,
we find that employees could reasonably infer that the
plan’s existence was contingent upon the workforce re-
maining nonunion.
Our dissenting colleague would find that Boykin’s
statement is not objectionable. According to him,
Boykin’s statement was merely a benign explanation
of the plan’s ‘‘historical terms.’’ We disagree. Boykin,
without making any other references to the historical
origins of the plan, commented that the plan was ‘‘de-
veloped for non-union plants in the Central Division’’
(emphasis added). By using the word ‘‘for’’ in this
context, the statement, by its terms, suggests something
more than an innocent historical reference, i.e., that the
bonus plan was not for unionized plants.
Our colleague also contends that we have failed to
consider Boykin’s statement within the ‘‘entire con-
text’’ of which it was made. He contends that this con-
text consists of the following factors: (a) the fact that
the election was approximately 6 weeks away; (b) that
there was no other discussion about the Union at the
safety meetings where Boykin made this statement; (c)
that Boykin was responding to employee-raised bonus
questions; and (d) the historical framework and the tra-
ditional way in which Boykin described the benefit.
We find these factors do not support a finding that
Boykin’s statement was nonobjectionable.
With respect to the timing of the statement, the
record establishes that Boykin made this statement dur-
ing the critical period, at meetings held during the lat-
ter half of July 1997. The election was held the fol-
lowing month on August 27.4 We do not believe this
is too remote in time for coercive statements to affect
employee free choice. See Long-Airdox Co., 277
NLRB 1157, 1159 (1985). Further, the other factors re-
lied on by our colleague fail to place the statement in
another context. Indeed, there is no contention that
Boykin’s statement was made in response to a question
about the historical origins of the plan. Moreover, that
Boykin may have referenced the plan’s historical ori-
gins in the past fails to show that employees under-
stood that Boykin’s statement was not linked to the up-
coming election. With the petition having been filed
and the campaign underway, employees certainly could
reasonably infer that the bonus plan was contingent on
their remaining nonunion.
Our colleague also contends that because Boykin did
not specifically state that remaining nonunion was one
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868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The hearing officer finds, and my colleagues agree, that there is
no other employer conduct that warrants setting aside the election.
of the criteria for eligibility, the employees could not
reasonably infer that they would be foreclosed from
the plan if they were represented by a union. Whether
Boykin’s comment was objectionable, however, does
not turn on whether he explicitly stated that the bonus
plan is contingent upon employees remaining non-
union. Rather, it turns on whether the statement sug-
gests to employees that their participation in the plan
will be withdrawn if the Union is selected as their bar-
gaining representative. See, e.g., Lynn-Edwards Corp.,
290 NLRB 202, 204 (1988). By relying on the absence
of an explicit, direct reference to employees remaining
nonunion as a condition of eligibility, our colleague
suggests that he would find objectionable only those
statements which explicitly make clear to a virtual cer-
tainty that the benefits will be foreclosed upon union-
ization. Contrary to our dissenting colleague, we shall
adhere to existing precedent and find that Boykin’s
statement is objectionable because—in these cir-
cumstances—it reasonably suggests that the bonus plan
will exist only so long as the employees remain non-
union.
We also find unpersuasive our dissenting colleague’s
contention that the Board’s decision in Phelps Dodge
Mining Co., 308 NLRB 985, 995 (1992), enf. denied
22 F.3d 1493 (10th Cir. 1994), is inapposite. In that
case, the Board found unlawful an employer’s use of
the term ‘‘union-free’’ in connection with its quarterly
appreciation payment program for employees. The
Board adopted the administrative law judge’s finding
that the use of that term ‘‘necessarily invited . . . the
. . . inference . . . that nothing short of full ‘freedom’
from all ‘union’ entanglements would suffice to make
one eligible for ‘coverage’ under the program.’’ We
fail to see any meaningful distinction between the ref-
erence to ‘‘union-free’’ in Phelps Dodge, and Boykin’s
reference to the bonus program—within the context of
announcing quarterly bonuses—as one developed for
nonunion plants. Both statements reasonably suggest
that the benefit would be unavailable if the employees
were represented by a union. Our colleague neverthe-
less attempts to distinguish Phelps Dodge by primarily
focusing on the fact that the employer there had
changed to its ‘‘union-free’’ plan shortly before the pe-
tition had been filed. The judge’s decision, however,
which the Board adopted, did not rely on the timing
of the change in plans. Rather, as noted above, it fo-
cused on the rhetorical implications of the term
‘‘union-free.’’ Thus, our colleague’s reliance on factors
other than those relied on in that decision does not
make that case inapposite, as he contends. Rather, it il-
luminates the point that his analysis is inconsistent
with Board precedent.
Accordingly, having found that Boykin’s comments
are objectionable, we shall set aside the election and
direct that a new one be held.
[Direction of Second Election omitted from publica-
tion.]
MEMBER HURTGEN, dissenting.
Unlike my colleagues and the hearing officer, I
would overrule the Petitioner’s Objection 4(a) and cer-
tify the results of the election.
In sustaining Objection 4(a), the hearing officer
found that Plant Manager Herman Boykin informed
employees that the Employer had a bonus program for
its nonunion plants. The remarks occurred during safe-
ty meetings that were held approximately 6 weeks be-
fore the election. Relying on Phelps Dodge Mining
Co., 308 NLRB 985, 995 (1992), enf. denied 22 F.3d
1493 (10th Cir. 1994), the hearing officer found that
the employer thereby improperly implied to its em-
ployees that they would automatically lose this benefit
if they selected the Union. In reaching this conclusion,
the hearing officer relied on the testimony of employee
George Lee Sr. as to his subjective understanding of
Boykin’s statement.
Although the majority correctly rejects the hearing
officer’s reliance on Lee’s testimony, they adopt the
hearing officer’s conclusion that the election should be
set aside based solely on Boykin’s statements.1 I dis-
agree. I find that the hearing officer and the majority
mischaracterize Boykin’s credited testimony. I further
find that, under the applicable legal principles,
Boykin’s comments were not objectionable.
Boykin credibly testified that, after many employees
had inquired about their eligibility for bonuses for the
second quarter of 1997, he decided to address the issue
at regularly scheduled safety meetings. Thereafter, dur-
ing July 1997 safety meetings in the saw and planer
mills, Boykin discussed bonus eligibility. Boykin
began his discussion by stating that the Employer’s
bonus plan had been ‘‘developed for non-Union plants
in the Central Division.’’ He then proceeded to de-
scribe the criteria for eligibility, and announced that
employees who meet those criteria would receive bo-
nuses for the preceding quarter. At these meetings,
Boykin did not state that employees would be ineli-
gible for bonuses if the Union were selected. Indeed,
there was no discussion at these meetings of the
Union, the election, or the effect, if any, of union rep-
resentation on employees’ continued coverage under
the bonus plan.
In these circumstances, I find that Boykin’s ref-
erence to the bonus plan’s historical origin does not
constitute objectionable conduct. Boykin credibly testi-
fied that the plan had always been explained in histori-
cal terms, and this is precisely how he described it to
employees at the safety meetings. This description was
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869GEORGIA-PACIFIC CORP.
2 The Board has also described the applicable inquiry as whether
an employer, orally or in writing, suggests to employees that their
coverage in a plan will automatically be withdrawn as soon as they
become represented by a union. See, e.g., Lynn-Edwards Corp., 290
NLRB 202, 204 (1988).
3 My colleagues suggest that I would find employee statements ob-
jectionable only if they ‘‘explicitly make clear to a virtual certainty’’
that the benefits will be foreclosed upon unionization. As made clear
herein, this is not my position. I have applied extant Board prin-
ciples. My colleagues and I simply disagree as to the application of
those principles.
not geared to the Union’s campaign, and there was no
reference to that campaign.
In order to find objectionable conduct, employees
would have to reasonably infer the following from
Boykin’s statement: (1) the plan was developed only
for nonunion plants; (2) the ‘‘only non-union’’ policy
continues; and (3) because of this, selection of the
Union will automatically result in noneligibility. In my
view, Boykin’s bare statement cannot reasonably be
stretched to carry all of these inferences. Indeed, when
Boykin described the criteria for eligibility, he did not
mention nonunion status as a criterion.
The cases relied on by the hearing officer are inap-
posite. The applicable inquiry, when evaluating an em-
ployer’s statement concerning benefits, is whether
there is a ‘‘suggestion inherent in the exclusionary lan-
guage that unrepresented employees will forfeit the
plan’s benefits, if they choose union representation.’’
Handleman Co., 283 NLRB 451, 452 (1987).2 Under
this test, in Phelps Dodge the Board found that the
employer’s repeated written statements to employees
that its bonus program was a ‘‘Union-free plan,’’
impermissibly implied that ‘‘employees [were] auto-
matically and irrevocably foreclosed from inclusion in
the [bonus plan] simply because they have a union bar-
gaining on their behalf.’’ Phelps Dodge, supra., 308
NLRB at 995, quoting KEZI, Inc., 300 NLRB 594
(1990). Significantly, in Phelps Dodge, the employer
had traditionally made bonus payments available to all
employees—represented and unrepresented, alike—but
changed to a ‘‘union-free’’ plan shortly before a decer-
tification petition was filed. Further, when announcing
its new plan, Phelps Dodge repeatedly referred to what
the judge found (and the Board adopted) was the ‘‘in-
herently sweeping expression, ‘union free.’’’
Here, unlike Phelps Dodge, there was no change in
the bonus plan during the organizing campaign, or evi-
dence that the Employer used the plan as a tool during
the organizing campaign. On the contrary, precisely at
the usual time when eligibility for quarterly bonuses
was determined, Boykin merely responded to employee
questions, and did so only at safety meetings where the
Union was not discussed. Thus, compared to the facts
in Phelps Dodge, Boykin’s statements do not even
come close to the ‘‘inherently sweeping expression
’union free.’’’ Nor did Boykin or any other Employer
agent repeat the statement concerning the historical
antecedents of the plan. In these circumstances, the
fact that Boykin’s prefatory remarks at the safety meet-
ings correctly stated that the bonus program had begun
at unrepresented plants, is insufficient, standing alone,
to constitute objectionable conduct.
I cannot agree with the majority’s conclusion that
there is no meaningful distinction between this case
and Phelps Dodge. The explicit reference to ‘‘union
free’’ in that case, and the timing of the recent change
to a ‘‘union free’’ system, clearly suggests to employ-
ees that, if they were not ‘‘union free,’’ they would not
get the benefit. The majority’s unwillingness to see
this distinction suggests that they view statements in
isolation, without reference to the context in which
they were made. This approach is at odds with extant
law.
My colleagues accuse me of forsaking Board prece-
dent in finding Boykin’s comments unobjectionable. I
disagree. I have carefully applied the relevant legal
principle that conduct will be objectionable if it carries
the inherent suggestion that employees will automati-
cally forfeit a benefit if they choose representation.3
My colleagues appear to view as objectionable any
employer use of the term ‘‘union’’ in conjunction with
an existing benefit during an organizational campaign.
Unlike them, I would consider the entire context in
which the challenged statement is made in order to de-
termine what message it reasonably conveys to em-
ployees. Thus, I find extremely probative such factors
as: the timing of Boykin’s comments—both in relation
to the election (6 weeks away) and to established
bonus payment periods; the context in which his com-
ments were made (i.e., the fact that the Union was not
even discussed at the regularly scheduled safety meet-
ings where the bonuses were discussed); the fact that
Boykin was responding to employee-raised bonus
questions; the historical framework of the benefit; and
the traditional way in which Boykin described the ben-
efit.
My colleagues place great weight on the fact that
the Employer said that the bonus program was devel-
oped ‘‘for’’ nonunion plants. However, as set forth
herein, I look to the complete context in which a state-
ment was made, not simply one word that was used.
I reject the majority’s unfounded conclusion that
Boykin’s description of the bonus plan was objection-
able because it occurred during the critical period and
because it was not in response to precise employee
questioning about the historical origin of the bonus
plan.
With respect to the first point, I agree that state-
ments made outside the critical period are ordinarily
not objectionable. However, it does not follow that
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870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
statements made within the critical period are nec-
essarily objectionable. Rather, one is permitted to con-
sider, inter alia, when during the critical period a par-
ticular statement was made.
With respect to the second point, it is true that em-
ployees simply asked about the bonus plan, and not
about its historical origins. However, as noted above,
Boykin credibly testified that he customarily begins his
answer (to bonus questions) by describing the origins
of the plan.
Finally, I also reject the majority’s conclusion that
Boykin’s description of the bonus plan was somehow
rendered objectionable because Boykin simultaneously
announced that bonus payments would be made. How-
ever, this statement was simply an announcement, at
the customary time, that bonuses would be paid. There
is no allegation that the bonuses, or the announcement
thereof, were unlawful, i.e., that they were timed to in-
fluence the selection process.
In all of these circumstances, the mere fact that the
Respondent mentioned the word ‘‘nonunion’’ in rela-
tion to the origin of the plan does not make the Re-
spondent’s conduct unlawful.
Accordingly, I would certify the results of the elec-
tion.
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