Kapstone Paper and Packaging Corporation

National Labor Relations Board - Board Decisions

Apr 20, 2018

366 NLRB No. 63 (N.L.R.B. 2018)

366 NLRB No. 63
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.
Kapstone Paper and Packaging Corporation and As-
sociation of Western Pulp and Paper Workers
Local 153, affiliated with the United Brother-
hood of Carpenters and Joiners of America.
Cases 19–CA–160107, 19–CA–160108, 19–CA–
160161, and 19–CA–160175
April 20, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On November 17, 2016, Administrative Law Judge Li-
sa D. Thompson issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief, the
Respondent and the Charging Party each filed answering
briefs,1 the General Counsel filed a reply brief to the Re-
spondent’s answering brief and the Respondent filed a
reply brief to the Charging Party’s answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions2 and briefs3 and has decided to
affirm the judge’s rulings, findings,4 and conclusions and
to adopt the recommended Order.

1 Although formally styled as an “Answering Brief,” the Charging
Party’s brief actually endorses the General Counsel’s exceptions, rather
than opposes them.
2 The General Counsel has excepted to the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of 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 judge’s findings.
3 The Respondent requests that the Board disregard the General
Counsel’s exceptions and brief pursuant to Sec. 102.46 of the Board’s
Rules and Regulations because the legal arguments in the General
Counsel’s brief fail to reference the exceptions to which they relate.
The Board has discretion in determining compliance with its regula-
tions, and we find that the General Counsel’s exceptions and brief
substantially comply with the applicable rules. See, e.g., Solutia, Inc.,
357 NLRB 58, 58 fn. 1 (2011), enfd. 699 F.3d 50 (1st Cir. 2012).
4 We adopt the judge’s finding that the Respondent did not violate
Sec. 8(a)(3) and (1) of Act by discharging Steve Blanchard. In so find-
ing, we agree that, pursuant to Clear Pine Mouldings, 268 NLRB 1044
(1984), enfd. mem. 765 F.3d 148 (9th Cir. 1985), cert denied 474 U.S.
1105 (1986), Blanchard’s conduct—kicking a contractor’s truck as it
entered the Respondent’s mill, and blocking and jumping on a contrac-
tor’s truck as it exited—would have reasonably tended to coerce or
intimidate employees in the exercise of rights protected under the Act.
See Siemens Energy & Automation, Inc., 328 NLRB 1175, 1176
(1999); GSM, Inc., 284 NLRB 174,174 (1987).
In adopting the judge’s conclusions that the strikers’ actions were
not protected, we do not rely on her assessment of subjective considera-
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. April 20, 2018
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
John Fawley and Elizabeth DeVleming, Esqs., for the General
Counsel.
James Shore, Esq. (Stoel Rives, LLP), for the Respondent.
Robert Lavitt, Esq. (Schwerin, Campbell, Barnard, et al.), for
the Charging Party.1
DECISION
STATEMENT OF THE CASE
LISA D. THOMPSON, Administrative Law Judge. The Associa-
tion of Western Pulp and Paper Workers Local 153, which is
affiliated with the United Brotherhood of Carpenters and Join-
ers of America (Charging Party or the Union), filed four unfair
labor practice (ULP) charges against Kapstone Paper and Pack-
aging Corporation (Respondent) alleging violations of the Na-
tional Labor Relations Act (NLRA or the Act).2 The Union
filed 10 additional ULP charges against Respondent.3 The Re-
gional Director for Region 19 (Regional Director) consolidated
all 14 charges and issued a consolidated complaint and notice
of hearing.
The consolidated complaint initially alleged that Respondent
committed numerous unlawful acts in violation of Section
8(a)(1), (3), and (5) of the Act. However, the parties settled 10

tions, including her analysis of the strikers’ intentions and how em-
ployees reacted to their misconduct. See Universal Truss, Inc., 348
NLRB 733, 734–736 (2006). Nor do we rely on the judge’s assessment
of the strikers’ conduct under State law, the temporary restraining or-
der, or the Union’s picketing rules.
1 Although Mr. Lavitt entered his appearance in the case, he did not
appear or participate during the hearing.
2 Cases 19–CA–132955, 19–CA–132964, 19–CA–145721, and 19–
CA–152277.
3 19–CA–156582, 19–CA–156586, 19–CA–159073, 19–CA–
159390, 19–CA–159574, 19–CA–160107, 19–CA–160108, 19–CA–
160161, 19–CA–160167, and 19–CA–160175.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
of the 14 charges prior to the hearing.4 Cases 19–CA–160107,
19–CA–160108, 19–CA–160161, and 19–CA–160175 re-
mained pending for hearing.
For the remaining cases pending for hearing, the General
Counsel alleges that Respondent violated Sections 8(a)(1) and
(3) of the Act when it discharged employees Steve Blanchard,
John Bouchard, Melvin Elben, and James Froberg for engaging
in protected, concerted picketing activity. Respondent filed its
answer and several amended answers denying all material alle-
gations and setting forth its affirmative defenses to the com-
plaint.5
This case was tried before me in Portland, Oregon, from
March 1–4, 2016. The trial resumed and concluded on March 8,
2016.
All parties were afforded a full opportunity to appear, intro-
duce evidence, examine and cross-examine witnesses, argue
orally on the record, and file briefs. After carefully considering
the entire record, including the demeanor of the witnesses and
the parties’ posthearing briefs, I make the following6
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
At all material times, Kapstone Paper and Packaging has
been a corporation with its headquarters in Northbrook, Illinois.
Respondent operates a paper and pulp mill and has a facility in
Longview, Washington. It is undisputed that, during the calen-
dar year of 2015, Respondent derived gross revenues in excess
of $500,000 and purchased and received at its Longview facili-
ty goods valued in excess of $50,000 directly from points out-
side the State of Washington. Accordingly, at all material
times, Respondent admits and I find that it has been an employ-
er within the meaning of Sections 2(2), (6), and (7) of the Act.
It is also undisputed, and I find that, at all material times, the
Association of Western Pulp and Paper Workers, Local 153,
affiliated with the United Brotherhood of Carpenters and Join-
ers of America has been a labor organization within the mean-
ing of Section 2(5) of the Act.

4 The parties entered into a non-Board settlement on Cases 19–CA–
132955, 19–CA–132964, 19–CA–145721, 19–CA–152277, 19–CA–
156582, 19–CA–156586, 19–CA–159073, 19–CA–159390, 19–CA–
159574, and 19–CA–160167.
5 Abbreviations used in this decision are as follows: “Tr.” for the
Transcript, “Jt. Exh.” for the Joint Exhibits, “GC Exh.” for the General
Counsel’s exhibits, “R. Exh.” for Respondent’s Exhibits, “GC Br.” for
the General Counsel’s brief, and “R. Br.” for Respondent’s brief.
6 On April 26, 2016, Respondent moved to correct the transcript of
the hearing, citing what it believes were multiple transcription errors
found upon its review of the transcript. Respondent attached Exhibit A
which was a declaration as to the specific errors in the transcript and
the proposed corrections. The General Counsel did not respond to the
motion. Accordingly, hearing no objection, I grant Respondent’s mo-
tion and incorporate by reference the corrections to the transcript identi-
fied in Exhibit A. Specific citations to the transcript and exhibits are
included where appropriate to aid review, and are not necessarily ex-
clusive or exhaustive.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
1. Respondent’s Longview facility
In order to better understand the unfair labor practices al-
leged in this case, it is important to describe the location of
Respondent’s Longview facility (the Mill). Respondent oper-
ates a pulp and paper mill. The Mill is situated in a remote
location, accessible by a single, one-mile road—Fibre Way.
There are no residential or commercial developments on the
portion of Fibre Way that lead to the Mill. Virtually everyone,
including all Kapstone employees, drives private vehicles to
the Mill on a daily basis.
Respondent employs approximately 1000 employees. In ad-
dition, there are hundreds of third-party contractors, truck
drivers, and visitors t h a t enter and exit the Mill via Fibre
Way on a daily basis.

In total, including employees, contrac-
tors, and visitors, over 1000 vehicles enter and exit the Mill on
a given day.
The Mill has separate entrance and exit gates for employ-
ees, commercial trucks and contractors. All of these entrances
and exits flow into and out of Fibre Way. As one drives down
Fibre Way toward the Mill, the first offshoot to the right is the
contractor entrance. Continuing down Fibre Way, the next
offshoot is the contractor exit, and last, the employee/truck
entrance and exit.7
2. The Union and the alleged discriminatees
The Union represents a wall-to-wall unit of employees who
work at the Mill. The four alleged discriminatees were unit
employees. Prior to his termination, Steve Blanchard
(Blanchard) served as a helper on the Kamyr digester—a ma-
chine that creates pulp by cooking the raw wood chips.
John Bouchard (Bouchard) was employed as a millwright
prior to his termination. Melvin Elben (Elben) was a fairly new
employee of Respondent. He served as a Journeyman “A” elec-
trician prior to his discharge. James Froberg (Froberg) was also
employed as a Journeyman “A” electrician at the time of his
termination.
It is undisputed that the parties’ latest collective-bargaining
agreement expired on May 31, 2014. The Union and Respond-
ent had been embroiled in unsuccessful contract negotiations.
When the Union threatened a strike in the spring/summer of
2015, on June 2015, Respondent’s labor relations manager,
Matt Gaston (Gaston), wrote to the Union, outlining Respond-
ent’s expectations in the event of a strike. Specifically, the
letter warned:
Please also be aware that any employee who engages in
serious strike misconduct (e.g. violence, damage to proper-
ty, threats of bodily harm) or violations of other applicable

7 R. Exhs. 3–4. In R. Exh. 3, the red truck depicted in the photo-
graph is entering the Mill on Fibre Way. The white truck depicted by a
small building (the guard’s station) is exiting the contractor’s exit out
of the Mill approaching Fibre Way. In R. Exh. 4, the red and silver
trucks depicted in the foreground of the photograph are driving on
Fibre Way. The white truck depicted in the background of the photo-
graph is entering the contractor’s entrance into the Mill.
KAPSTONE PAPER AND PACKAGING CORPORATION 3
laws will not be protected by the National Labor Relations
Act and will be subject to serious discipline, up to and in-
cluding discharge. 8
It is undisputed that the Union received Gaston’s letter.
By August 2015, contract negotiations resulted in an impasse
and the Union filed several ULP charges against Respondent.9
It is against this backdrop that the Union authorized a strike of
its unit employees.
3. The August 27—September 4, 2015 strike
On August 27, 2015, the Union called a strike. Before the
picketing began, Local 153 President Kurt Gallow (Gallow)
conducted a series of required training sessions for all members
who intended to participate in the strike. Members were told to
exhibit normal, respectful behavior on the picket line. Mem-
bers also were given the Union’s “Picket Line Dos and Don’ts”
which described in detail how they were to conduct themselves
on the picket line.10
Specifically, members could patrol/picket on public proper-
ty, including in front of the entrances and exits to the Mill, but
not on Respondent’s property. They could stand/picket in what
was known as the “public right-of-way,”—an area in the mid-
dle of the street on Fibre Way, directly across from the employ-
ee/contractor’s exit. However, the right-of-way was also used
by trucks to enable them to negotiate the sharp left out of the
truck exit onto Fibre Way.11
Members were also told they could not block or obstruct ve-
hicles’ ingress or egress. Similarly, they could not “interfere
with or swarm persons or vehicles entering or leaving” the
Mill.12 The prohibition on “swarming” persons or vehicles
meant that members could not stand collectively in front of or
surround vehicles or obstruct vehicles’ entrances or exits. Ra-
ther, they were required to continually patrol in a timely fashion
across the entrances and exits with their picket signs. Members
could not make physical contact with others, engage in conver-
sations with drivers or Respondent’s security guards, and must
avoid confrontations with others.
To reinforce the strike rules, strike team captains were re-
sponsible for certain teams of picketers and to ensure that pick-
eters followed the strike rules. Team captains were trained to be
the liaisons to speak on behalf of the Union. Elben served as a
strike team captain during the strike. All members were provid-
ed with copies of the Picket Line “Do’s and Don’ts” to take
home to review.13 The strike lasted from August 27, 2015 to
September 4, 2015.

8 R. Exh. 15.
9 Those ULP charges are not at issue in this case.
10 R. Exh. 12 at 3–4.
11 As an example, see R. Exh. 4. The rear tires on the red truck de-
picted in this photograph cross over the “public right-of-way”—the
area in the middle of the street which enables the truck to negotiate the
sharp left turn out of the exit onto Fibre Way.
12 R. Exh. 12 at 3.
13 Tr. 580–581, 663–664, 840–841; see also R. Exh. 12 at 3–4.
B. Specific Incidents of Alleged Unlawful Conduct
1. Blanchard incidents
a. Blanchard kicks a Delta Fire/GMC truck
It is undisputed that Blanchard participated in the union
strike. Union leaders trained Blanchard (and others) on how to
conduct themselves on the picket line. Blanchard admitted he
was aware of the Union’s Picket Line “Do’s and Don’ts” and
had been instructed not to engage in any contact with Respond-
ent’s guards or drivers, not to block or impede vehicles/traffic
and that strikers could not swarm vehicles.
On August 30, 2015, Blanchard and approximately 10–15
union members were picketing at the contractor’s entrance to
the Mill. Around 5:50 p.m., as a white GMC truck that be-
longed to Delta Fire (one of Respondent’s contractors) entered
the Mill, Blanchard kicked the passenger side rear panel of the
truck as the driver drove into the Mill.14 The entire incident was
caught on video.15 While there was considerable dispute wheth-
er Blanchard’s kick caused any damage, photographs of the
truck’s passenger side panel show a foot impression and shad-
owing where Blanchard’s foot made contact with the rear pan-
el.16
For his part, Blanchard admitted that he kicked the truck be-
cause he was frustrated that the driver (and several other driv-
ers) blew their horns and taunted picketers. However, the video
at Respondent’s Exhibit 19 does not support Blanchard’s ac-
count. While Blanchard thought the Delta Fire driver was a
“scab”—that is, someone taking bargaining unit work from
union members, it is undisputed that the driver was not per-
forming any bargaining unit work at the Mill.17
In any event, Blanchard admitted that he understood that
kicking the truck was not permitted under Respondent’s strike
rules or the Union’s Picket Line “Do’s and Don’ts.”
b. The white Chevy Tahoe incident
The substance of what occurred regarding the white Ta-
hoe incident turns on an evaluation of credibility.18 Having
carefully reviewed the record, I find the following facts:
Approximately one hour after Blanchard kicked the Delta

14 During the hearing, the Delta Fire truck was also referred to as the
RMR truck or the GMC truck. These terms were used interchangeably
to identify the kicking incident.
15 R. Exh. 19; see also R. Exh.20.
16 GC Exhs. 5–6; see also R. Exh. 20 at 4–5.
17 R. Exh. 23; see also Tr. 148–149, 791, 801–802.
18 I based my credibility findings on multiple factors, including, but
not limited to, the consideration of a witness’ opportunity to be familiar
with the subjects covered by the testimony given; established or admit-
ted facts; the impact of bias on the witness’ testimony; the quality of
the witness’ recollection; testimonial consistency; the presence or ab-
sence of corroboration; the strength of rebuttal evidence, if any; the
weight of the evidence; the witness’ demeanor while testifying; inher-
ent probabilities; and reasonable inferences that may be drawn from the
record as a whole. Daikichi Susshi., 335 NLRB 622, 633 (2001), enfd.
56 Fed. Appx. 516 (D.C. Cir. 2003); New Breed Leasing Corp. v.
NLRB, 111 F.3d 1460, 1465 (9th Cir. 1997), cert. denied 522 U.S. 948
(1997). Credibility findings need not be all-or-nothing propositions, and
it is common for a fact finder to credit some, but not all, of a witness’
testimony. Daikichi Sushi, supra at 622.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Fire truck, Blanchard and 10–15 union members were again
picketing—this time, near the contractor’s exit gate. A white
Chevy Tahoe was exiting the Mill through the contractor’s
gate.19 When the driver first approached the exit, there were no
picketers in the roadway. However, as the driver neared the
edge of Respondent’s property line, an unidentified male pick-
eter said “there’s another one [meaning another truck/contractor
exiting the Mill].”20 At that point, Blanchard and about 8 to 10
fellow picketers (with their signs in hand) gathered in front of
the truck and blocked the vehicle’s egress. Although there was
considerable dispute as to what happened next, after carefully
viewing the video evidence, I find that the Tahoe came to a
brief, but full stop, with Blanchard and his fellow picketers
gathered in front of and swarming the vehicle. While swarming
the vehicle, the picketers appear to hit the vehicle with either
their picket signs or picket sticks.21 The Tahoe tried to inch
forward to clear a path to leave the scene, however Blanchard
and the others did not clear the roadway.
While the vehicle briefly stopped, Blanchard, with his picket
sign in hand, attempted to jump onto the hood of the vehicle.
Although Blanchard testified that the vehicle was moving so he
jumped onto the hood to avoid being run over and/or swept
under the truck, again, the video evidence does not support his
account. Rather, I find that, when the vehicle paused for a brief
second, Blanchard jumped onto the hood, and as he did so, his
picket sign twice made contact with the windshield of the Ta-
hoe. Blanchard ultimately admitted this version of events in his
testimony.22
In any event, faced with several picketers swarming his ve-
hicle and Blanchard on top of the hood, an opening in the
crowd appeared so the Tahoe increased its speed and drove off
the property. Blanchard was thrown from the hood to the
ground onto Fibre Way. At that time, there were approximately
100 people picketing, walking, driving and/or traversing on
Fibre Way. Procurement Manager John Mendenhall (Menden-
hall), who saw the entire incident unfold, confirmed this ver-
sion of events.23
Mendenhall testified that, after he heard Blanchard being
thrown from the Tahoe’s hood onto Fibre Way, he drove to the
area where he saw approximately 100 people exiting Fibre
Way. Mendenhall described the scene as “pandemonium.”
Thereafter, he drove past the Tahoe where he saw the shattered
windshield from the incident.
After being thrown off the hood of the Tahoe, Blanchard was
transported to the hospital via ambulance. However, Blanchard
left the emergency room without being treated (against medical
advice), because his medical insurance through Respondent had
been cancelled and he was concerned about the out-of-pocket
costs. Blanchard returned to the picket line some time later so
he could report the incident.

19 During the hearing, the white Tahoe truck was also refered to as
the white GMC truck. These terms were used interchangeably to identi-
fy the second incident.
20 R. Exh. 5.
21 R. Exh. 21.
22 Tr. 809, 812, 815. The windshield of the Tahoe was shattered at
this time.
23 Tr. 155–157, 159–163.
It is undisputed that, in the immediate aftermath of the inci-
dent, Respondent closed off the contractor’s exit for 10 to 15
minutes and redirected traffic out of the Mill in order to secure
the scene and restore order on Fibre Way. Thereafter, Respond-
ent bused several employees and contractors into the Mill be-
cause, according to Mendenhall, they were afraid to take their
vehicles across the picket line.24
In making the above findings, I relied on the video evidence
and credit Mendenhall’s testimony concerning this incident.
Specifically, I found Mendenhall credible, in that he listened
carefully to the questions asked and maintained the same de-
meanor regardless of who examined him. His testimony was
direct and non-evasive. Moreover, Mendenhall’s recollections
of what occurred were specific and unambiguous.
I found Blanchard’s version of events less than fully credi-
ble. First, the fact that one of the picketers can clearly be heard
saying “there’s another one” when the Tahoe exited the Mill
led me to conclude that Blanchard and the others intended to
swarm the vehicle and block its egress from the Mill. In fact,
Mendenhall testified that, during the strike, he saw picketers
blocking and/or swarming other contractors’ vehicles so as to
obstruct their ability to enter or exit the Mill.25 I found
Mendenhall’s testimony credible.
Second, and more importantly, Blanchard gave inconsistent
testimony regarding the Tahoe incident. Specifically, at the
hearing, Blanchard initially denied that he pounded on the Ta-
hoe’s hood with his fists or his picket sign. Then, on cross ex-
amination, he admitted to hitting the Tahoe with his picket sign
“once.” However, the video evidence, which shows
Blanchard’s picket sign hit the Tahoe several times, directly
contradicts Blanchard’s account.26 In fact, Blanchard’s testi-
mony at the hearing is inconsistent with his Board affidavit
(also known as a Jencks statement) where he admitted hitting
the Tahoe with his picket sign “two or three times.”27 In short,
because the video evidence belies his many, different versions
of the incident, I find Blanchard’s testimony unreliable.
Lastly, while Blanchard’s reason for jumping onto the hood
of the truck seems plausible (i.e., he had no other choice be-
cause the truck kept moving forward and he would have been
swept under it had he not jumped onto the hood), his explana-
tions failed to excuse his behavior in swarming and blocking
the Tahoe’s egress. In fact, the evidence shows that Blanchard
and the other picketers first swarmed and blocked the vehicle
which caused the Tahoe to push his way through the crowd. I
find that Blanchard’s conduct, which he knew was prohibited,
began the chain of events in question. Therefore, I conclude
that, about an hour after Blanchard kicked the Delta Fire truck,
Blanchard and several other picketers, with their picket signs in
hand, walked over to the Tahoe and swarmed and blocked the
vehicle’s egress. When the Tahoe briefly stopped at Respond-
ent’s property line, Blanchard jumped onto the hood of the
truck, and his picket sign struck the Tahoe’s windshield. At
that moment, there was an opening in the crowd, and the driver

24 Tr. 174.
25 Tr. 149–151.
26 Id.
27 Tr. 818.
KAPSTONE PAPER AND PACKAGING CORPORATION 5
sped up and drove off the property. Blanchard was thrown off
the hood of the truck onto Fibre Way.
2. Respondent’s injunction
As a result of the picketing incidents involving Blanchard
(and other incidents not relevant to this case), on September 1,
2015, Respondent moved for and obtained a temporary re-
straining order (TRO) against the Union and its members.
The TRO mandated the following, in relevant part:
(1) All parties, their officers, members and representatives,
are to conduct themselves in a manner which does not
cause a breach of the peace, and will not violate any sec-
tion of the criminal laws of the State of Washington within
500 yards of the entrance and exit gates to the Longview,
Washington Kapstone mill site.
(2) No one will attempt to block or impede traffic entering
or leaving the Kapstone mill site. . . .28
It is undisputed that Respondent served the TRO on the Un-
ion the same day it was issued. The Union informed all strike
captains, including Elben, about the TRO, and Elben, in turn,
informed all other union members under his charge as they
came on site to picket.
On September 4, 2015, after an evidentiary hearing, Re-
spondent obtained a preliminary injunction (“the Injunction”),
which expressly incorporated the Union’s “Picket Line Do’s
and Don’ts,” including its instructions not to obstruct en-
trances or exits, interfere with vehicles, or picket in the
streets. The Injunction also mandated: “Drivers entering or
leaving will not proceed until they can do so safely.”29 It is
against this backdrop that the following incident involving
Bouchard, Elben and Froberg occurred.
3. Bouchard, Elben, and Froberg stand in the right-of-way
preventing a third-party contractor from exiting the Mill
As stated above, once the TRO was issued, the Union in-
formed its members, including Bouchard, Elben and Froberg,
about the Order, where the employer’s property lines were,
where they could safely and legally picket, and how to conduct
themselves while picketing. Specifically, the Union again in-
formed its members not to obstruct entrances or exits and/or
interfere with or block a vehicle’s ingress or egress. It is undis-
puted that Bouchard, Elben and Froberg were aware of the
contents of the TRO, the “Picket Line Do’s and Don’ts,” and,
specifically, the prohibitions on blocking vehicles/traffic.
On September 4, 2015, the day the Injunction was issued,
Bouchard, Elben and Froberg participated in the union strike.
On that day, Bouchard and Froberg stood, with their picket
signs in hand, in the public right-of-way located in the middle
of Fibre Way. Although the public right-of-way is not part of
Respondent’s property and can be used for picketing, trucks
also have the right to utilize this area to give them additional
latitude in turning left out of the exit gate onto Fibre Way.
In any event, at some point during the day, a large 18-wheel
tractor-trailer rig, owned by Gardner Trucking (another one of

28 GC Exh. 2.
29 GC Exh. 3.
Respondent’s contractors), and driven by Diane Cutler (Cutler),
attempted to leave the Mill out of the employee exit gate. To do
so, Cutler had to make a wide left-hand turn out of the gate
onto one of two lanes on Fibre Way.30 However, on September
4, Cutler was faced with a very small area in which to make a
tight left turn to exit the Mill.
First, there were at least seven parked cars parked on the
sideline of Fibre Way on what became the passenger’s side of
the truck after the turn. Moreover, several picketers stood in
front of the parked cars. To make matters worse, when the
Gardner truck made its left turn out of the gate, Bouchard and
Froberg stood in the public right-of-way in the middle of Fibre
Way. This created a “choke hold” giving the Gardner truck a
very tight turn radius with which to navigate the left turn out of
the exit gate onto Fibre Way. In other words, if Cutler pulled
out onto the right lane of Fibre Way, she would hit the row of
parked cars and/or picketers standing in front of the parked cars
on Fibre Way. On the other hand, if Cutler swung the truck
onto Fibre Way too quickly, the front of the rig would hit Bou-
chard and Froberg who stood in the public right-of-way.
In any event, as Cutler pulled out of the exit gate onto Fibre
Way, the truck could not complete its left turn because Bou-
chard and Froberg stood in the right-of-way on what became
the left of the driver’s side of the truck. As such, Cutler stopped
the truck to avoid hitting Bouchard and Froberg. The entire
incident was videotaped.31
When Cutler saw that she could not clear the left turn, she
called her supervisor, Heidi Mast (Mast). Mast told Cutler to
turn off the truck then Mast called the Cowlitz County sheriff’s
department. Mast immediately drove to the location, and once
she arrived, she spoke to Cutler, assessed the situation and be-
gan videotaping the incident.32 Mast did not believe Cutler
could safely reverse the 18-wheel truck in order to renegotiate
the turn.33
Meanwhile, Union captain Elben walked over toward Bou-
chard and Froberg to assess the situation. Simultaneously, Re-
spondent’s Main Gate Operator Darren Harger (Harger), who
observed the incident from the security guard’s station, saw the
truck stopped in the middle of Fibre Way, walked over and
asked Bouchard, Froberg, and Elben if they would take a few
steps away from the truck so it could complete the left turn. In
response, Elben hit Froberg on the shoulder, told Froberg words
to the effect that, “we don’t have to talk to them [meaning Re-
spondent’s personnel],” to which Froberg folded his arms and
turned his back to Harger. Bouchard, Froberg, and Elben re-
fused to move.34

30 Tr. 936.
31 R. Exh. 13 (security footage of Gardner truck incident. The video
is 30:06 minutes in length and shows the truck pulling out of the mill
gate and getting stuck in the turn, as well as where Bouchard and
Froberg were standing and where cars were parked. Froberg is standing
in the red shirt in the middle of Fibre Way. Bouchard is standing next
to Froberg and Elben is at the far left of the video). See also still photo-
graphs of incident at R. Exh. 28.
32 Tr. 939–941; see also R. Exh. 27. (video [with audio] taken by
Mast from her cell phone).
33 Tr. 941.
34 R. Exh. 13; see also R. Exh. 40 (Harger’s statement).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
At some point thereafter, three Cowlitz County Sheriff’s
deputies arrived on the scene to converse with Union picket
captain Dan Eckersly (Eckersly), Elben, and several others
about the incident. Once the deputies were informed about the
situation, one of the deputies told Eckersly and the group that
they could not stand in the public right-of-way and block traf-
fic. Specifically, the deputy said words to the effect, “They
[meaning Bouchard and Froberg] can’t block the road . . . It’s
very simple, if there’s a car coming through, a vehicle, and
you are in the way of that vehicle, then you are in the way of
the vehicle . . . [I]f you are blocking the vehicle, you are block-
ing the vehicle, you can’t do that.”35 At that point, Froberg
walked over to the deputies and asked whether he could stand
in the right-of-way, to which one of the deputies responded,
“No, you can’t block a vehicle [meaning the Gardner truck].”36
While Froberg spoke to the deputy, Elben walked over and
stood next to Bouchard in the right-of-way.
Despite this directive, Froberg returned to stand in the right-
of-way with Bouchard and Elben. Eckersley and the depu-
t i es subsequently walked over to speak with Bouchard,
Froberg, and Elben in the right-of-way where the deputy
again told the three men that they could not stand in the
right-of-way and block a vehicle. After some continued discus-
sion, the deputy asked the men, “can you do me a favor” and
move a few feet so the truck could complete its left turn. Eck-
ersley replied words to the effect, “you’re the law, if you tell
me to move, we will move.”37 At that point, Bouchard, Elben,
and Froberg took three to four steps away from the truck, and
Cutler completed the turn and left the scene. Bouchard,
Froberg, and Elben stood their ground in the public right-of-
way for 20 minutes before moving to allow the truck to com-
plete its turn. The Sheriff’s deputies did not arrest anyone or
issue any citations at the scene.
It is undisputed that, during the standoff with Bouchard,
Froberg, and Elben, Respondent was required to find alternate
routes for the numerous trucks, cars, and employees entering
and exiting the Mill. Specifically, with approximately 500–
1000 trucks passing through the Mill daily, in a 10-hour day
and with 50 large trucks per hour entering or exiting the Mill,
approximately 16.5 tractor-trailers and 21 trucks had to be re-
routed during the 20-minute standoff. In addition, Mast testi-
fied that several of the Gardner truckdrivers told her they were
afraid to exit the Mill during the strike because they were fear-
ful of their safety and/or that they would encounter a similar
blocking situation by the Union. As a result, all Gardner trucks
were instructed not to use the contractor’s exit until the strike
ended.38
It is also undisputed that, minutes before the Gardner truck
incident, a waste truck exited out of the main gate and proceed-
ed to turn left onto Fibre Way in the exact same fashion as the
Gardner tractor trailer. Again, Bouchard and Froberg stood in
the exact same location in the public right-of-way in the middle
of Fibre Way as they had when the Gardner 18-wheeler rig

35 R. Exh. 27 (The officer’s conversation with the Union).
36 Id.; see also R. Exh. 48.
37 R. Exh. 27 (at 3.30–3.43 minutes).
38 Tr. 957–958.
exited the Mill. However, when the waste truck entered the
intersection to turn left, Bouchard and Froberg moved to the
left of the truck to allow it to negotiate the left turn. When the
waste truck turned and passed, Bouchard and Froberg returned
to the spot where they stood on Fibre Way.39
In making the above findings, I primarily relied on the vid-
eo/audio evidence of the incident and credit Mast’s testimony.
Specifically, Mast’s recollection of the incident was direct and
specific. She was not evasive in her testimony and her demean-
or remained consistent throughout questioning. In addition, her
testimony was corroborated by the video evidence. Moreover, I
relied on Mast’s trucking expertise in determining the propriety
and safety of a blocked 18-wheel truck, because, as a site su-
pervisor, her primary responsibility was ensuring her subordi-
nate truck drivers drove their trucks safely.40 Lastly, because
Mast was not an employee of Respondent at the time of the
incident, her testimony lacked bias or prejudice.41 As such, I
found Mast’s testimony particularly reliable regarding this inci-
dent.
By contrast, I did not find Bouchard, Elben, and Froberg
credible for several reasons. First, all three men made incon-
sistent and oftentimes illogical statements throughout their
testimony. For example, despite that they each denied blocking
the Gardner truck, the video and documentary evidence clearly
proved otherwise. In fact, when confronted with the video of
the incident and asked if he realized that he (and the others)
were blocking the Gardner rig, Elben testified that he “didn’t
understand that the truck was blocked because no one told him
[that the truck was blocked or that there was an issue that pre-
vented the truck from turning].” Elben’s explanation is ridicu-
lous, and I found him completely unbelievable.
In any event, Bouchard, Elben, and Froberg insisted that they
believed they had the right to stand their ground in the right-of-
way, even if they blocked a vehicle ingress/egress. However,
when confronted with the videos of the incident, the Union’s
picket line “Do’s and Don’ts” and the TRO, which they knew
prohibited them from blocking a vehicle’s ingress/egress, they
provided no cogent explanation for their “stand their ground”
belief. Moreover, the fact that Bouchard and Froberg moved
for the waste truck which drove out of the Mill 15–20 minutes
before they refused to move for the Gardner 18-wheeler rig
totally undermines their testimony. Even when confronted with
the fact that the sheriff’s deputies told the men at the scene that
they could not stand in the right-of-way and block a vehicle,
Froberg (and the others) repeatedly stated that they believed
they had the right to stand their ground. In short, their testimo-
ny in this regard is beyond belief, and their blind reliance on
nonsensical explanations for their conduct made them not cred-
ible.
Bouchard, Elben, and Froberg also blamed Cutler’s poor

39 See R. Exh. 14 (video of the waste truck leaving the Mill, turning
left onto Fibre Way, the location of Bouchard and Froberg, how they
moved out of the right-of-way to allow the waste truck to pass, and how
they returned to their position in the right-of-way); see also R. Exhs.
28, 29 (same).
40 Tr. 930–933.
41 Since the incident, Mast is currently employed as a transportation
specialist for Respondent effective February 15, 2016. See Tr. 932.
KAPSTONE PAPER AND PACKAGING CORPORATION 7
driving skills for the incident, noting that other trucks were able
to negotiate the left turn with the men standing there. However,
as seen on the videos, not all of the trucks were as long as the
Gardner 18-wheeler rig. More importantly, many of the other
trucks had a wider turn radius to make the left turn than the
Gardner truck since there were no cars or picketers located on
the right sideline of Fibre Way. However, when confronted
with these facts on cross-examination, they were evasive and
non-responsive in their answers. In fact, while Bouchard ad-
mitted that the turn radius was wider for the waste truck than
what was afforded the Gardner rig, he was again unresponsive
when asked why he chose to move for the waste truck but re-
fused to move for the Gardner rig. Bouchard’s (as well as Elben
and Froberg’s) lack of candor on this issue made their testimo.
Neither Bouchard, Elben, nor Froberg gave plausible ex-
planations when asked why they refused to move for the
Gardner rig (but moved for the waste truck). In fact, Froberg
denied moving for the waste truck at all, but when confronted
with the video, his only response was he “didn’t recall” it.
Similarly, all three men were equally evasive and/or non-
responsive when asked whether the Gardner truck also had a
right to use the public right-of-way to turn as they had to stand
their ground.42 Lastly, although Bouchard testified that he
thought the Gardner truck driver intentionally “blew the inci-
dent out of proportion,” when asked why he thought so, he was
unable to respond. Rather, the documentary evidence shows he
never reported such a belief in his Board affidavit (aka, Jencks
statement) or at any time prior to the hearing. In sum, I did not
find Bouchard, Elben, or Froberg reliable, forthcoming or truth-
ful in their testimony.
Accordingly, I find that, when the Gardner truck exited the
Mill, Cutler had a very limited turn radius with which to turn
left out of the gate since Bouchard, Elben, and Froberg stood in
the public right-of-way and other picketers and parked cars
were located on the right sideline of Fibre Way. Cutler never-
theless attempted to navigate the left turn but could not due to
the size of the truck and the limited turn radius she was afford-
ed. Cutler stopped the truck when it was clear she would hit
the three men standing in the right-of-way. Instead of moving
aside, as they had for other trucks, Bouchard, Elben, and
Froberg stood in the middle of Fibre Way blocking Cutler’s
egress. As such, the truck was stopped in the middle of Fibre
Way blocking traffic. Main Gate Operator Harger asked Bou-
chard, Elben, and Froberg if they would step aside to allow the
truck to pass but the men refused to move. At that point, the
Sheriff’s deputies were called to the scene, because none of
Respondent’s employees or other drivers or contractors could
access the Mill or Fibre Way during the standoff. Once the
Sheriff’s deputies were advised of the situation, the deputies
told the Union (and Froberg specifically) that they could not
stand in the public right-of-way and block a vehicle. Despite
this instruction, the three men refused to move, except when the
deputy asked them to step aside to allow the vehicle to pass.
Only at that point, some 20 minutes later, did the men comply
and moved aside, the truck completed its turn and left the Mill.

42 Because it was a public right-of-way, trucks also had a right to use
the public right-of-way.
4. Respondent’s investigations
Respondent’s Security Manager, David Smith (Smith) in-
vestigated the incidents involving Blanchard, Bouchard,
Elben and Froberg. Because Smith had previously worked as
a Cowlitz County Sheriff’s deputy for 35 years, he was fa-
miliar with the Washington state criminal statutes, particu-
larly those involving disorderly conduct and malicious mis-
chief. It is undisputed that Smith conducted numerous inves-
tigations for Respondent prior to the incidents involving
Blanchard, Bouchard, Elben and Froberg.
a. Blanchard’s conduct
Regarding the “kicking” incident, Smith reviewed video
footage, the photographs of the truck’s rear panel, and inci-
dent reports from Security Officers Dimitri Shilov (Shilov)
and Farrant (first name unknown) who inspected and con-
firmed the truck’s damage.43 Smith also confirmed with the
owner that the vehicle had been damaged by Blanchard’s
kick. Although Smith requested a damage assessment from
the owner, the owner did not want to pursue the matter and
told Smith he was reluctant to return to the Mill.
With respect to the white Tahoe incident, Smith reviewed
multiple videos and spoke to witness Mendenhall. While
Smith initially believed that Blanchard shattered the
truck’s windshield, he later concluded that he could not
determine how or by whom the windshield had been broken,
even though it occurred at or about the time Blanchard
jumped onto the hood of the truck and struck it with his pick-
et sign.
On September 1, 2015, Respondent’s Mill Manager, Paul
Duncan (Duncan) notified Blanchard that Respondent was in-
vestigating the Delta Fire and white Tahoe incidents.44 Duncan
requested that Blanchard “provide a written statement concern-
ing the incidents . . . so that we can obtain your side of the story
for our investigation.” Blanchard complied.45
In his written statement regarding kicking the Delta Fire
truck, Blanchard admitted to engaging in the conduct i n
for having done so. Specifically, he stated: question but ex-
pressed no remorse or reasonable justification
The other incident that you reference in your letter hap-
pened while a scab was coming into the mill, not exiting
as you state in your letter. He was honking his horn an-
tagonizing picketers. I believe I kicked at the vehicle
while it was entering the contractor gate.46
With respect to the white Tahoe, Blanchard explained that he
was merely “picketing, walking” when “the vehicle struck me
as I was walking.” According to Blanchard, he was afraid of
being hit so he “jumped onto the hood of the vehicle. I believe
that I hit his hood with my picket sign to try and get the vehicle

43 Tr. 275; GC Exhs. 5–6 (photographs of truck panel), 7 (Shilov’s
incident report), 8 (Officer Farrant’s incident report. The pictures at-
tached to his report are found at GC Exhs. 5 and 6); see also R. Exh. 20.
44 R. Exh. 22.
45 GC 11; also found at R. Exh. 23.
46 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
to stop (everything happened extremely fast).”47
After reviewing Blanchard’s response, on September 11,
2015, Smith held a fact finding meeting with Blanchard, Union
President Gallow and Respondent’s representative Stacy Davis
(Davis).48 During the meeting, Blanchard admitted he kicked
the Delta Fire truck, although he stated that the driver
honked his car horn to antagonize the picketers. However,
he also admitted other picketers and contractors honked their
car horns as well.49 Again, the video footage does not sup-
port Blanchard’s account.
In any event, Smith asked Blanchard follow-up ques-
tions regarding the two incidents, and Davis recorded
Blanchard’s responses. Smith also asked if Blanchard had any-
thing further to add to his statement, to which Blanchard said
“no.”50 Gallow was also given the opportunity to speak, but
he did not raise any objections to the thoroughness or fair-
ness of the investigation, nor did he speak at all in
Blanchard’s defense.
After reviewing all of the evidence, Smith concluded that
Blanchard’s conduct in kicking the Delta Fire truck consti-
tuted criminal mischief.51 Moreover, from his review of the
video footage regarding the Tahoe, Smith concluded that
multiple picketers swarmed the truck when it came to a com-
plete stop, then Blanchard climbed onto the hood of the
vehicle and swung his picket sign at the windshield area
several times before being thrown off the vehicle.52 In sum,
Smith believed Blanchard’s conduct regarding the Tahoe con-
stituted disorderly conduct.53
b. Bouchard’s, Elben’s, and Froberg’s conduct
Smith also investigated the incident involving Bou-
chard, Elben, and Froberg blocking the Gardner Truck.
Smith reviewed the video footage, the photographs, and
witness statements regarding the incident. He also spoke
with Harger, who confirmed that he asked the three men to
move shortly after the Gardner Truck stopped in the middle
of Fibre Way and they refused.
On September 4, 2015, as he did for Blanchard, Duncan
sent separate letters to Bouchard, Elben, and Froberg, noti-
fying them of the investigation into their conduct and
inviting them to “provide a written statement concerning
the incident to me so that we can obtain your side of the story
for our investigation.”54 Each of them complied and submitted
a written response.55
In his written statement, Froberg blamed Cutler for the
entire incident. He also asserted that Cutler cursed and
yelled profanities at the picketers prior to the incident in

47 Id.
48 R. Exh. 24. The parties stipulated that Smith, Gallow and Davis
were present in each of the fact finding meetings involving Blanchard,
Bouchard, Elben and Froberg.
49 R. Exh. 24.
50 Id.
51 R. Exh. 2. I took judicial notice of this Washington state statute.
52 Tr. 290–291.
53 R. Exh. 1. I took judicial notice of this Washington state statute.
54 R. Exhs. 31 (Froberg), 32 (Elben), 33 (Bouchard).
55 R. Exhs. 34 (Froberg), 35 (Elben), 36 (Bouchard).
question.56 However, Smith followed up with Cutler and
Mast, both of whom denied that Cutler ever engaged in such
behavior. Similarly, I credit Mast’s and Cutler’s testimony at
the hearing on this point. Specifically, Cutler denied she
ever yelled profanities at the picketers. She appeared soft
spoken, her tone and demeanor was composed and steady.
Cutler recalled the main points of the incident clearly, and like
Mast, her testimony was unambiguous and forthcoming. They
both struck me as committed to speaking the truth. Lastly,
because Froberg failed to mention in his statement or at the
hearing that the sheriff told him directly that he could not stand
in the right-of-way and block a vehicle, I found his testimony
and account of the incident less than forthcoming.
In his written response, Elben denied any responsibility
for the incident, arguing that he stood in the right-of-way
until the Sheriff’s deputy asked him to move. While Elben
testified similarly at the hearing, I found his overall testimo-
ny not credible for the reasons stated earlier in this decision.
Moreover, with respect to his written statement, Elben in-
cluded a copy of an aerial photograph of the white fog line
on Fibre Way which extended under the Gardner Truck.
This white fog line represented the end of Respondent’s
property and the designation of the public right-of-way area.
However, a Google map of the public right-of-way area
shows that the white fog line stopped far short of where
the Gardner truck stopped in Elben’s photograph. In es-
sence, the white fog line appears to have been extended in
Elben’s copy of the right-of-way.57 While I do not find that
Elben doctored the photograph, his credibility was further
diminished because he failed to satisfactorily explain why
his photograph was so markedly different from the view of
the right-of-way found on the Google aerial view.
In any event, in his written statement, Bouchard also
blamed Cutler for the incident, alleging that her poor driving
skills caused her to “cut the corner short in an attempt to get
me and my fellow union brothers off the picket line . . . This
driver shut down the semi, in my opinion to blow things out
of proportion.”58 However, Smith’s investigation, my re-
view of the testimonial evidence and the videos of the inci-
dent, does not comport with Bouchard’s account. Further,
none of the three men took into account that, due to the size
and length of the Gardner truck, Cutler had a very restricted
turn radius in which to negotiate the left turn with the three
men standing in the right-of-way and the row of cars and
other picketers located across Fibre Way. As such, I did not
find Bouchard’s testimony credible on this point.
On September 10, 2014, Smith held separate fact-finding
meetings with Bouchard, Elben and Froberg.59 Gallow and
Davis were also present. During each of the meetings, Smith
asked the me n questions about the incident and whether
t h e y had anything else to add. Each of them responded “no.”

56 R. Exh. 31.
57 R. Exh. 35. Compare with the video at R. Exh. 13 and the photo-
graphs at R. Exh. 40.
58 R. Exh. 36.
59 R. Exhs. 37 (Froberg’s fact finding), 38 (Elben’s fact finding), 39
(Bouchard’s fact finding).
KAPSTONE PAPER AND PACKAGING CORPORATION 9
Gallow was again given the opportunity to speak but at no
time did he raise any objections to the thoroughness or fair-
ness of the investigation, nor did he otherwise speak up in
defense of Bouchard, Elben, or Froberg.
After reviewing all of the evidence, Smith determined
from the video footage that the Sheriff’s deputy informed the
three men that they had no right to stand in the right-of-way
and block the Gardner truck. Moreover, Smith’s investigation
confirmed that those present at the scene reasonably believed
that the Gardner truck could not have safely reversed or contin-
ued forward for a 20-minute period without hitting Bouchard,
Elben, and Froberg. He also found that the three men refused to
move out of the truck’s path during that time. Smith fur-
ther found the witnesses’ impressions were confirmed by
the video footage, which demonstrated that the men would
have been run over by the Gardner Truck had the truck
continued on its path. Smith concluded that Bouchard’s,
Elben’s, and Froberg’s conduct (blocking a vehicle) violated
the TRO and constituted criminal disorderly conduct.
5. Respondent terminates Blanchard, Bouchard, Elben,
and Froberg
Smith compiled his investigative report and turned it over
to Labor Relations Manager Gaston. Gaston reviewed the
evidence, including the videos, the photographs, Smith’s
investigative report, the written responses from Blanchard,
Bouchard, Elben, and Froberg, and the notes from the fact-
finding meetings. Gaston also consulted with Smith, Randy
Nebel, the department manager for the four men, and Re-
spondent’s Mill Operations Vice President/Mill Manager
Paul Duncan (Duncan), who made the ultimate decision to
terminate the four men.
Regarding Blanchard’s conduct, after reviewing the pic-
tures of the Delta Fire truck, Gaston concluded that
Blanchard kicked the truck to the point it left a dent in the
rear panel. Regarding Blanchard’s conduct concerning the
white Tahoe, after reviewing the videos, Gaston rejected
Blanchard’s account that he was in fear for his safety. Ra-
ther, Gaston determined that Blanchard climbed on top of
the hood after the Tahoe came to a complete stop in order to
gain leverage to inflict damage to the vehicle.
Regarding Bouchard, Elben, and Froberg’s conduct, after
reviewing the videos of the incident involving the Gardner
truck, Gaston concluded that the three men were told they
could not stand in the public right-of-way and block a vehi-
cle/traffic. He determined that, although Froberg was specif-
ically told by the deputy that he could not stand in the right-
of-way and block a vehicle, he not only refused to move but
failed to admit this in his written statement. Accordingly,
based upon all the evidence, Gaston recommended to Dun-
can that Blanchard, Bouchard, Elben, and Froberg be termi-
nated.60

60 While I generally found Gaston’s testimony straight-forward and
non-evasive as well as his tone and demeanor composed and steady, I
note that he remained in the courtroom and overheard the testimony of
Smith and Mendenhall before giving his testimony. Thus, his credibil-
ity is called into question as I cannot be certain that his testimony is
based solely upon his personal knowledge.
After Duncan received Gaston’s discharge recommenda-
tion together with the investigative reports, photographs, the
witnesses’ statements, the employees’ written statements,
and the fact-finding notes, he conducted an independent
review of the materials relative to the incidents involving
Blanchard, Bouchard, Elben, and Froberg. He also conferred
with Smith who conducted the fact-finding meetings and
compiled the investigative reports. He subsequently agreed
with Gaston’s assessment regarding the incidents involving
Blanchard, Bouchard, Elben, and Froberg. Accordingly, on
September 14, 2015, Duncan terminated Bouchard, Elben,
and Froberg for gross and willful misconduct during the work
stoppage, engaging in disorderly conduct under Washington
state law and violating the TRO issued prior to their conduct.61
On September 15, 2015, Duncan terminated Blanchard for
gross and willful misconduct during the work stoppage and
engaging in disorderly conduct and malicious mischief under
Washington state law.62
In making these findings, I relied on the documentary evi-
dence and credited Smith’s testimony over Bouchard’s,
Elben’s, and Froberg’s. Specifically, I found Smith credible in
that he listened carefully to questions and maintained the same
demeanor regardless of who examined him. Smith was forth-
coming in his responses, was not vague, ambiguous or evasive
on direct or cross examination. Lastly, his testimony comport-
ed with the documentary evidence.
Despite that Gaston overheard the testimony of Smith and
Mendenhall, I found Gaston credible overall in that he was not
vague or evasive in his answers and testified specifically and
completely on direct and cross examination. Most importantly,
I found Gaston’s testimony was supported by the documentary
evidence.
Although Duncan’s demeanor appeared moderately hostile,
particularly on cross-examination and he gave evasive and/or
guarded testimony that initially presented as less than forth-
right, the documentary evidence corroborated his testimony. I
found Duncan particularly credible when I asked him how he
was able to determine that Blanchard intentionally climbed
onto the hood of the Tahoe to inflict damage to the vehicle
instead of out of fear for his safety. In his answer, I found that
he let his guard down considerably and made a genuine effort
to explain his assessment. In that instance, I found Duncan’s
testimony particularly forthcoming and credible.63
By contrast, as stated earlier in this decision, I found Bou-
chard, Elben, and Froberg incredible on many points. They
made inconsistent, and frequently, illogical statements concern-
ing their actions regarding the Gardner truck. Moreover, I
found their testimony evasive, particularly on cross examina-
tion, which struck me as less than forthright. In fact, Bouchard
and Froberg were only forthcoming (to the extent they were)
when confronted with the documentary evidence which proved
their testimony unreliable. However, even when confronted

61 R. Exhs. 41 (Bouchard), 42 (Elben), 43 (Froberg).
62 R. Exh. 25.
63 See Daikichi Sushi, 335 NLRB 622, 622 (2001) (credibility find-
ings need not be all-or-nothing propositions, and it is common for a fact
finder to credit some, but not all, of a witness’ testimony).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
with video and other documentary evidence, Elben often gave
nonsensical answers that made him wholly incredible. On bal-
ance, I did not find Bouchard, Elben, or Froberg credible or
reliable in their testimony.
III. DISCUSSION AND ANALYSIS
A. Legal Principles
In cases involving the discharge of striking employees for
engaging in strike misconduct, the General Counsel has the
overall burden of proving discrimination.64 Initially, the Gen-
eral Counsel must establish that the employees in question were
strikers and that the employer took action against them for con-
duct associated with the strike.
At that point, the burden shifts to the employer to establish
that it had an honest belief that the employees in question en-
gaged in the conduct for which they were discharged. The em-
ployer’s burden of establishing its “honest belief” is no more
than that and does not require it to prove that the strikers did in
fact engage in misconduct.65 It does, however, require more
than the mere assertion that it had such a belief. There must be
some specificity, linking particular employees to particular
allegations of misconduct.66 The employer’s “honest belief”
may be based on hearsay sources, such as the reports of non-
striking employees, supervisors, security guards, investigators,
or the police.67 Whether or not the employer had an “honest
belief” is judged on the basis of the evidence available to it
when it took the disciplinary action and it need not attempt to
get the strikers’ side of the story before doing so.68
If the employer satisfies its burden, then the General Counsel
must affirmatively establish either that the employees did not
engage in such misconduct or that the misconduct was not suf-
ficiently egregious to warrant discharge.69 Not all misconduct is
sufficient to disqualify a striker from further employment.70 In
Clear Pine Mouldings, 268 NLRB 1044 (1984), the Board held
that strike misconduct is disqualifying if, under all of the sur-
rounding circumstances, it may reasonably tend to coerce or
intimidate other employees in the exercise of rights protected
under the Act.71 The Clear Pine Mouldings standard is an ob-
jective one and does not involve an inquiry into whether any
particular employee was actually coerced or intimidated.72
Moreover, this standard applies to misconduct directed at

64 NLRB v. Burnup & Sims, Inc., 379 U.S. 21, 23 (1964); Gem Ure-
thane Corp., 284 NLRB 1349, 1352 (1987).
65 Axelson, Inc., 285 NLRB 862, 864 (1987); Gem Urethane, supra
at 1352.
66 Beaird Industries, 311 NLRB 768, 769 (1993); General Telephone
Co. of Michigan, 251 NLRB 737, 739 (1980).
67 Clougherty Packing Co., 292 NLRB 1139, 1142 (1989); Newport
News Shipbuilding, 265 NLRB 716, 718 (1982); General Telephone
Co., supra at 739.
68 Giddings & Lewis, Inc., 240 NLRB 441, 448 (1979); Associated
Grocers of New England, Inc., 227 NLRB 1200, 1207 (1977).
69 Gem Urethane, supra at 1352; Laredo Coca Cola Bottling Co.,
258 NLRB 491, 496 (1981); Rubin Bros. Footwear, Inc., 99 NLRB
610, 611 (1952).
70 Medite of New Mexico, Inc., 314 NLRB 1145, 1146 (1994).
71 Clear Pine Mouldings, supra at 1046.
72 Mohawk Liqueur Co., 300 NLRB 1075 (1990).
nonemployees such as supervisors, security guards, and inde-
pendent contractors.73
B. Analysis
1. Whether Blanchard’s termination violated the Act
With respect to Blanchard’s strike misconduct and applying
the above burden shifting standard, the General Counsel has
met their initial showing. That is, I find that Blanchard was a
striker and that Respondent terminated him for kicking the
Delta Fire truck as well as swarming, blocking and jumping on
the hood of the white Tahoe which caused damage to the
truck’s windshield.
I also conclude that Respondent held an “honest belief” that
Blanchard engaged in the conduct in question. Specifically,
Blanchard admitted, and video and photographic evidence
proves, that he kicked the Delta Fire truck. Moreover, regarding
the second incident, video and photographic evidence demon-
strates, and I find that Blanchard (and others) intentionally
swarmed the white Tahoe and blocked its egress from the Mill.
While the Tahoe was stopped briefly, Blanchard jumped on the
hood of the truck, and in so doing, his picket sign hit the truck
causing damage to the windshield. Lastly, after investigating
the incident, including reviewing the drivers’ and employees’
statements, Respondent discharged Blanchard for engaging in
said misconduct.
At this point, in order to prevail, the General Counsel must
demonstrate that Blanchard did not engage in the misconduct in
question or that his misconduct was not sufficiently egregious
to warrant his discharge. However, the General Counsel cannot
satisfy its burden, because Blanchard admitted to engaging in
the conduct in question, and I find that Blanchard’s act in kick-
ing the passenger side rear panel of the Delta Fire truck, for no
legitimate reason, is sufficient to warrant denial of reinstate-
ment.
Specifically, I find that, by kicking the truck, Blanchard in-
tended to instill fear on the contractor’s part, not to return to the
Mill during the strike. Moreover, the fact that Blanchard admit-
ted that he knew he was prohibited from any contact with third
party contractors or their vehicles but kicked the rear panel
notwithstanding this prohibition led me to conclude that his
actions were reasonably intended to intimidate and coerce Re-
spondent’s contractor to refrain from entering the Mill.
I also conclude that Blanchard’s conduct regarding the white
Tahoe, which occurred less than an hour after kicking the Delta
Fire truck, was unprotected. Specifically, Blanchard intention-
ally swarmed and blocked the Tahoe’s egress from the Mill, an
act intended to intimidate the contractor (and others) from com-
ing to the Mill. This is particularly true given that an unidenti-
fied picketer can be heard saying, “there’s another one,” as the
Tahoe left the Mill site, which further proved Blanchard’s (and
his cohorts) intention was to intimidate the contractor. Moreo-
ver, Blanchard engaged in such conduct despite admitting that
he was aware that his actions were prohibited by the Union’s
picketing rules as well as the Cowlitz County Court’s TRO.
More importantly, by surrounding the truck and slamming his

73 General Chemical Corp., 290 NLRB 76, 82 (1988); PBA, Inc.,
270 NLRB 998 (1984).
KAPSTONE PAPER AND PACKAGING CORPORATION 11
picket sign on/near the truck, Blanchard reasonably intended to
not only threaten and instill fear of harm in Respondent’s con-
tractor, but to potentially engage in violence in an effort to keep
this contractor and others from returning to the Mill. In fact, the
evidence reveals that Respondent bused several of its contrac-
tors and employees to the Mill after receiving reports that they
were afraid to drive their vehicles across the picket line. Such
conduct has been found by the Board to be inherently threaten-
ing, coercive and intimidating and unprotected under the Act.74
Similarly, after carefully reviewing the video evidence
(frame by frame), I find that Blanchard’s act in jumping on the
hood of the Tahoe and the subsequent damage to the truck’s
windshield was unprotected. Here, the General Counsel claims
that Blanchard’s actions did not warrant his discharge because
he jumped onto the hood of the suburban to save his life since,
according to Blanchard, the truck would have swept him under
it and potentially killed him. However, as stated in the findings
of fact section, supra, the video evidence fails to support this
account. Rather, I conclude that Blanchard jumped onto the
hood of the truck in order to gain a tactical advantage and fur-
ther intimidate the contractor. Although the General Counsel
made much to do about the fact that the contractor’s driver’s
license was suspended, and as a result of speeding away from
the scene, the contractor’s reckless driving caused Blanchard to
be thrown off the vehicle onto Fibre Way, none of these con-
siderations are relevant to Respondent’s decision to discharge
Blanchard.75 Rather, Respondent’s discharge decision was
based upon Respondent’s investigation which revealed that
Blanchard and his fellow strikers swarmed and blocked the
Tahoe’s egress, Blanchard climbed onto the hood of the vehicle
with his picket sign in hand, and the contractor’s windshield
was damaged. Subsequently, the contractor informed Respond-
ent that he sped away and left the scene, because he was sur-
rounded by picketers who blocked him from leaving, feared for
his safety and would not again return to the Mill as a result of
the incident. As such, I find that Blanchard’s strike misconduct
was sufficiently egregious (and coercive) that it warranted his
termination.
2. Whether Bouchard’s, Elben’s, and Froberg’s terminations
violated the Act
Similarly, despite that the General Counsel satisfied their ini-
tial burden of proof, I conclude that the actions of Bouchard,
Elben, and Froberg were unprotected. The evidence reveals
that Bouchard, Elben, and Froberg stood in the public right-of-

74 Clear Pine Mouldings, supra at 1047 (Board stated its view that,
during a strike, picketers have no right “. . . to block access to the em-
ployer’s premises . . .”) ; see also Sheet Metal Workers Local 19
(Delcard Associates), 316 NLRB 426, 431 (1995) (union blocking
vehicles, during picketing, even for a short period of time, is coercive
and violates the Act); Longshoremen ILA Local 1291 (Trailer Ma-
rine), 266 NLRB 1204 (1983) (Board held that the union’s blocking
ingress/egress from employer’s facility constitutes coercive conduct).
75 See Giddings & Lewis, 240 NLRB at 448; Associated Grocers of
New England, 227 NLRB at 1207 (employer’s termination decision
resulting from strike misconduct is judged on the basis of the evidence
available to it when it took the disciplinary action and it need not at-
tempt to get the strikers’ side of the story before doing so).
way for approximately 20 minutes and blocked the Gardner
truck from exiting the Mill because they believed Cutler hurled
insults and profanities at picketers during the strike and they
believed they had a right to stand their ground. Their conduct
was clearly intended to retaliate against Cutler and intimidate
her from returning to the Mill. Even if Cutler had hurled pro-
fanities toward fellow picketers (which I have found she did
not), her behavior would not have justified Bouchard’s,
Elben’s, and Froberg’s actions in blocking the Gardner truck
from leaving the Mill.76
Bouchard’s, Elben’s, and Froberg’s conduct also had the ef-
fect of intimidating/discouraging other employees and contrac-
tors from coming to the Mill during the strike. The record
shows that several employees and contractors were afraid to
cross the picket line. Moreover, the men’s actions caused such
a disruption that Respondent was required to redirect numerous
vehicles away from Fibre Way, the only access to the Mill, for
20 minutes during the standoff. Moreover, I find Bouchard’s,
Elben’s, and Froberg’s actions particularly egregious in that
they were fully aware that the Union’s picket line rules and the
Court’s TRO prohibited them from blocking the Gardner truck.
Yet despite these rules, and even after the Sheriff’s deputy told
them and the Union they could not stand in the public right-of-
way and block a vehicle, they refused to move to allow the
Gardner truck to pass.
While the General Counsel focused on the fact that the sher-
iff never told the men that they were unlawfully blocking “that”
vehicle (meaning the Gardner truck), this argument is patently
ridiculous. Rather, the audio and video evidence clearly shows
that these gentlemen stood in the middle of Fibre Way for 20
minutes blocking Cutler from leaving the Mill. It was their
actions against the Gardner truck, not some other vehicle, to
which the deputy admonished the men.
In sum, the evidence clearly demonstrates that Respondent
terminated Bouchard, Elben, and Froberg because they unlaw-
fully blocked the Gardner truck from exiting the Mill. The men
knew their conduct was prohibited, were told such on multiple
occasions; yet they refused to cease and desist. I find the ac-
tions of the three men inherently coercive and intimidating, and
therefore, unprotected under the Act.77 Accordingly, I conclude
that Bouchard’s, Elben’s, and Froberg’s terminations did not
violate the Act.
Accordingly, I am persuaded that Respondent did not violate
Sections 8(a)(1) or (3) of the Act. For that reason, I recommend
that the complaint be dismissed.
Dated: Washington, D.C., November 17, 2016

76 Clear Pine Mouldings, supra at 1047 (blocking ingress/egress of
vehicle unprotected in Board’s view).
77 Id. See also General Chemical Corp., 290 NLRB at 82; PBA, Inc.,
270 NLRB 998 (1984).