Mead Corp.

National Labor Relations Board - Board Decisions

Jun 28, 2000

331 N.L.R.B. 509 (N.L.R.B. 2000)

MEAD CORP. 509
The Mead Corporation, Fine Paper Division and
United Paperworkers International Union, Lo-
cal 731 AFL–CIO. Cases 9–CA–32901 and 9–
CA–33447
June 28, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
HURTGEN AND BRAME
On August 8, 1996, Administrative Law Judge
Stephen J. Gross issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief. The
Respondent filed cross-exceptions, with a supporting
brief and in opposition to the General Counsel’s excep-
tions.
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 exceptions and briefs and has decided to
affirm the judge’s ruling, findings,1 and conclusions and
to adopt the recommended Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, The
Mead Corporation, Fine Paper Division, Chillicothe,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
“(b) Furnish the Union with the contractor swipe
sheets it requested in connection with a grievance con-
cerning Mead’s use of contractors, and other such con-
tractor swipe sheets as the Union may from time to time
request.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
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 the National Labor Relations Act and has or-
dered us to post and abide by this notice.

1 In adopting the judge’s findings, like the judge we do not pass on
whether the November 29 meeting was within the ambit of NLRB v.
Weingarten, 410 U.S. 251 (1975), i.e., whether it was an investigatory
interview in which employees could reasonably expect that discipline
might result. Like the judge, we find that, even assuming arguendo that
it was, Bost’s conduct was unprotected by the Act.
2 We shall modify the judge’s recommended Order to require that
the Respondent provide the Union with the previously requested con-
tractor swipe sheets, in addition to any that it may request in the future.
We shall also modify the notice accordingly.
WE WILL NOT maintain rules that prohibit you from
soliciting for purposes protected by Section 7 of the Act
during nonworking time or from distributing literature
for purposes protected by Section 7 of the Act during
nonworking time in nonworking areas of its Chillicothe
Mill.
WE WILL NOT refuse to bargain collectively with
United Paperworkers International Union, Local 731,
AFL–CIO, by refusing to furnish the Union information
that it requests that is relevant and necessary to the Un-
ion’s performance of its functions as the exclusive bar-
gaining representative of employees in the appropriate
unit. The unit is.
All production, maintenance, restaurant, and quality
assurance employees of the Employer, Chillicothe
Operations, Chillicothe Mill, Chillicothe, Ohio, but
excluding administrative executive, factory clerical,
engineering department, technical or engineering as-
sistants, customer services department, woods de-
partment, mail and multilith employees, hospital
employees, passenger car chauffeurs, guards, and
supervisors as defined in the National Labor Rela-
tions Act
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL rescind or modify our rules so that they do
not prohibit you from soliciting for purposes protected by
Section 7 of the Act during nonworking time and so that
you are not prohibited from distributing literature for
purposes protected by Section 7 during nonworking time
in nonworking areas.
WE WILL furnish the Union with such contractor
swipe sheets as the Union has requested and as the Union
may from time to time request.
THE MEAD CORPORATION, FINE PAPER
DIVISION
Carol Shore, Esq., for the General Counsel.
Robert J. Brown, Esq. (Thompson, Hine & Flory), of Dayton,
Ohio, for the Respondent.
Bernard B. Bost, of Chillicothe, Ohio, for the Charging Party.
DECISION
STEPHEN J. GROSS, Administrative Law Judge. The Re-
spondent, the Mead Corporation, Fine Paper Division (Mead),
employs about 1400 production and maintenance employees in
its Chillicothe Mill in Chillicothe, Ohio. The employees are
represented by the Charging Party, the United Paperworkers
International Union, Local 731, AFL–CIO (the Union).1
1 All parties agree that Mead is an employer engaged in commerce
within the meaning of Sec. 2(2) and (6) of the National Labor Relations
Act (the Act), that the Union is a labor organization within the meaning
of Sec. 2(5) of the Act, and that the Board has jurisdiction over this
matter. The bargaining unit that the Union represents is: All production,
maintenance, restaurant, and quality assurance employees of The Mead
Corporation, Chillicothe Operations, Chillicothe Mill, Chillicothe,
Ohio, but excluding administrative, executive, factory clerical, engi-
331 NLRB No. 66
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 510
The General Counsel contends that Mead, at its Chillicothe
Mill, violated the Act by: (1) maintaining rules that unduly
restrict employees’ solicitation and distribution activities;
(2) refusing to provide certain information to the Union; (3)
threatening to discipline the Union’s chief steward, Butch Bost,
because of the advice he gave to another employee; and (4)
disciplining Bost because of his behavior during the course of a
meeting, which Bost attended as the representative of fellow
employees.
For the reasons discussed below, I conclude that Mead’s so-
licitation and distribution rules violate Section 8(a)(1) of the
Act, as alleged, and that, also as alleged, Mead violated Section
8(a)(5) and (1) when it refused to provide information to the
Union. But I shall recommend that the Board dismiss the com-
plaints to the extent that they allege that Mead’s treatment of
Bost was unlawful.2
I. SOLICITATION AND DISTRIBUTION RULES
Mead’s rules state that the following activities (among oth-
ers) shall result in discipline:

Engaging in any unauthorized activity during working
hours that is not closely related to or a part of the em-
ployee’s regular job, such as unauthorized solicitation on
premises. The privilege of soliciting for charitable purpose
shall not be unduly withheld.

Posting, distribution, or circulation of unauthorized no-
tices, posters, and placards on plant premises.

Both rules plainly are overly broad. The first purports to for-
bid “any unauthorized activity . . . such as unauthorized solici-
tation on premises” not just during working time, but during
working hours. The second forbids the distribution of “notices,
posters, and placards” throughout the plant’s premises, rather
than just in working areas. And the record fails to show that
Mead communicated these rules to its employees “in such a
way as to convey an intent clearly to permit solicitation during
breaktime or other period when employees are not actively at
work” (with respect to the first quoted rule) or that Mead
“knowingly tolerated distribution in nonwork areas.” Braden
Mfg., Inc., 315 NLRB 1145 (1994). See generally Our Way,
Inc., 268 NLRB 394 (1983).
Mead acknowledges that the rules’ prohibitions are too
broad. But Mead defends on the grounds that the Union agreed
to the rules and that in practice Mead permits employees to
engage in solicitations and distributions to an extent at least as
broad as that mandated by the Act.
Mead’s argument about union agreement is factually correct.
The rules quoted above are part of Mead’s “Company Rules,”
which rules have long been incorporated in collective-
bargaining agreements between Mead and the Union. (The

neering department, technical or engineering assistants, customer ser-
vices department, woods department, mail and multilith employees,
hospital employees, passenger car chauffeurs, guards, and supervisors
as defined in the National Labor Relations Act.
2 I held the hearing in Case 9–CA–32901 on December 5, 1995, in
Cincinnati, Ohio, and thereafter received briefs from the General Coun-
sel and Mead in that matter. On February 7, 1996, the General Counsel
moved to reopen the record in that case and to consolidate that case
with Case 9–CA–33447. Mead did not oppose the motion and I granted
it by order dated February 23, 1996. I held the reopened hearing on
March 21, 1996, and the General Counsel and Mead filed additional
briefs.
most recent collective-bargaining agreement expired by its own
terms in August 1995.3 As of the hearings here, Mead and the
Union were attempting to negotiate a successor agreement. By
agreement between the Union and Mead, the terms of the last
collective-bargaining agreement remain in force during nego-
tiations.)
But a union may not waive the rights of employees to engage
in activities by which employees may seek to change their bar-
gaining representative, to opt for no bargaining representative,
or to seek to retain their present bargaining representative.
NLRB v. Magnavox Co. of Tennessee, 415 U.S. 322, (1974);
Universal Fuels, 298 NLRB 254 (1990). Accordingly, the fact
that the Union agreed to the solicitation and distribution rules at
issue does not constitute a defense for Mead.
As for Mead’s lack of enforcement of the rules, the only evi-
dence on point (testimony of an employee relations representa-
tive in Mead’s human resources department) shows only that
Mead has not disciplined any employee for violating either the
solicitation rule or the distribution rule. But

[F]ailure to enforce an overbroad rule is no defense be-
cause the mere existence of an overbroad rule may chill
the exercise of the employees’ Section 7 rights. [Laidlaw
Transit, 315 NLRB 79, (1994).]
II. MEAD’S REFUSAL TO PROVIDE INFORMATION
Article XIX of the collective-bargaining agreement author-
izes Mead “to engage independent contractors to perform se-
lected service functions and overloads of maintenance work.”
The collective-bargaining agreement also provides that

Prior to engaging an independent contractor to perform
temporary overloads of maintenance work, the Company
will notify the Union and will outline the nature of the pro-
ject or plan.

The Union’s concern about Mead’s use of contractors to per-
form maintenance work has led the Union, over the years, to
file numerous grievances alleging violation by Mead of article
XIX.
All parties agree that Mead routinely provides contractor in-
formation to the Union. This information is in the form of an-
ticipated contractor activity (as the collective-bargaining
agreement requires). Thus Mead gives the Union a list of con-
tractors that Mead expects to be on site during the following
week.4 And when the Chillicothe Mill’s human resources de-
partment learns that the weekly list has not correctly anticipated
all contractor work for the week, that department promptly pro-
vides corrections to the Union.
Additionally, a form called the “green sheet” provides pro-
ject-by-project data such as a description of the project to be
contracted out, reasons for the contracting out, skills expected
to be needed, and the estimated number of man-hours the con-
tractor will need to complete the project.5 Mead provides green
sheets to the Union upon request by the Union.
But what about retrospective information? That is, informa-
tion that shows, after the fact, which contractors actually were
on site, what they did, and how many man-hours they took to
do it. Particularly where the Union is contemplating filing a
3 That collective-bargaining agreement is in the record as GC Exh. 2.
4 An example of a weekly contractor list is in the record as GC
Exh. 6.
5 See GC Exh. 5.
MEAD CORP. 511
grievance because of suspicions that Mead has violated the
collective-bargaining agreement, such retrospective information
obviously is useful in order to check the accuracy of the antici-
patory information that Mead had supplied to the Union.
To answer that question about retrospective information, we
need to examine, of all things, Mead’s security arrangements at
the Company’s Chillicothe site.
Mead operates two paper mills at the Chillicothe site, the
Chillicothe Mill and the Chilpaco Mill. The entire site is
fenced. Access to the site is controlled by Mead’s security per-
sonnel. Two gates are available for contractor employees want-
ing access onto the site. Each of the two gates provides access
to both the Chillicothe Mill and the Chilpaco Mill.
Some contractor personnel physically sign a log maintained
by security personnel at each of the two contractor gates. When
signing in, the individual writes, along with his or her name, the
name of the individual’s employer, the time, the particular pro-
ject on which the individual will be working, and the nature of
the individual’s work (e.g., pipefitter, or laborer). A page from
these logs is known as a “contractors check in/out log” or, less
formally, as a “gate sheet.”6 Mead provides gate sheets to the
Union upon the Union’s request.
Most contractor personnel, however, do not sign any security
log. Rather, the recording of their entry and exit is handled
electronically.
To that end, Mead issues “swipe cards” to most contractor
personnel. To oversimplify somewhat, a swipe card is a plastic
card with computer-readable data encoded on it. The data in-
clude a reference to the name of the cardholder and the name of
the contractor that employs the card holder. To enter or leave
Mead’s Chillicothe site, the cardholder, at either of the two
contractor gates, “swipes” the card through a device that auto-
matically reads the card, notes the date and time of day, and
feeds that information to a computer. That computer, if queried,
can (in theory) provide, by contractor, for any given day, the
names of the contractor personnel who were present at the Chil-
licothe site, the amount of time each of such individuals was on
site, and the total hours on site of the contractor’s personnel.
Where the computer spews back that information in the form
of a printed page, the output is called a “swipe sheet.”7
On many occasions in the past, the Union requested particu-
lar swipe sheets. Mead honored those requests. But on May 1,
1995, a letter from a Mead official to the Union’s president
stated that Mead would no longer provide swipe sheets to the
Union. The reason for this change in policy, the letter stated,
was that Mead did “not have confidence in the accuracy” of
swipe sheet information. The letter reads, in part:

Recently, we have become aware that the information re-
corded on . . . swipe sheets is not always accurate. Specifi-
cally, we have found cases in which the contractor for
whom the electronic system indicated the employee was
working was not correct, and the information often in-
cludes contractors and contractor employees working at
the Chilpaco Mill.
I am writing to tell you that because we do not have the
confidence in the accuracy of this electronic information
we will no longer provide this information in this form.8

6 A copy of a gate sheet is in the record as GC Exh. 7.
7 A copy of a swipe sheet is in the record as GC Exh. 9.
8 GC Exh. 11.
The Union promptly objected to Mead’s letter. Subsequently
the Union asked for swipe sheets in connection with a griev-
ance concerning Mead’s use of contractors. Mead refused to
provide them.
The record is clear that swipe sheets are sometimes inaccu-
rate in some important respects and ambiguous in others.
Thus, as the letter indicates, sometimes a swipe sheet will
indicate that an individual on site was an employee of one
named contractor when in fact the employee was, at the time, in
the employ of another contractor. (That occurs when an indi-
vidual leaves the employ of one Mead contractor, enters the
employ of another Mead contractor, and continues to use his or
her old swipe card.)
Additionally, the hours-worked information can be wildly
inaccurate. The one swipe sheet in the record, for example,
purports to show that on August 28, 1994, three different con-
tractor employees each worked considerably in excess of 24
hours.
Also, swipe sheets do not distinguish between supervisors,
clerical employees, and hourly employees. Yet the Union’s
only interest is in contractors’ hourly employees.
Finally, as the letter states, swipe sheets include personnel
working at the Chilpaco Mill (whose employees are not repre-
sented by the Union) as well as at the Chillicothe Mill. (Swipe
sheets include data in a column labeled “mill.” But the testi-
mony here suggests that, notwithstanding that column, mistakes
occur on swipe sheets about at which mill a given contractor
employee worked.)
The record, however, shows that, despite the shortcomings of
the swipe sheets, access to these documents is important to the
Union.
Union suspicions about Mead’s overuse of contractors typi-
cally are triggered by reports from bargaining unit members
that they saw contractor employees doing work that should
have been handled by bargaining unit employees. Swipe sheets
are an obvious place for the Union to begin its investigation in
response to these reports. If the swipe sheets for the relevant
days do not tally with the anticipatory information that Mead
had supplied, plainly the situation merits more intensive inves-
tigation by the Union. That is so even though the swipe sheet
alone cannot resolve the question of whether Mead was in fact
having bargaining unit work performed by a contractor in a
manner that violated the collective-bargaining agreement. And
no other type of document is a feasible alternative for the Un-
ion.
It is true that, instead of asking for swipe sheets, the Union
could simply ask Mead what the contractor in question was
doing. But for the Union to rely entirely on an answer by Mead
to such a query, the Union would also have to rely on Mead’s
willingness and ability to provide an accurate answer in cir-
cumstances in which the Union had some reason to believe –
rightly or wrongly–that the information that Mead had already
provided was incorrect. Whatever the problems with swipe
sheets, at least they are based on data collected in the normal
course of business, as opposed to information collected by in
specific response to a Union request by Mead officials, officials
whose interests might conflict with the disclosure of the parti-
cular information sought.
The Union obviously is entitled to swipe sheets. NLRB v.
Acme Industrial Co., 385 U.S. 432 (1967) (involving, inter alia,
information relevant to the subcontracting clause of a collec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 512
tive-bargaining agreement); Shoppers Food Warehouse, 315
NLRB 258 (1994).
III. MEAD’S THREATENED DISCIPLINE OF BUTCH
BOST
In April 1995 Butch Bost (the Union’s chief steward) ad-
vised a member of the bargaining unit to disobey two manage-
ment directives. That advice resulted in Mead’s management
threatening to discipline Bost. In order to place that threat in
context, I turn first to the circumstances that led to the direc-
tives about which Bost gave his advice.
The collective-bargaining agreement between Mead and the
Union contains two provisions dealing with employees who
become physically unable to perform their jobs. One provision
covers temporary disabilities; the other covers permanent dis-
abilities.9
Jeffrey Roush is a Mead employee. About 2 years before the
events in question, Roush hurt his back. That injury prevented
Roush from performing his then permanent job in Mead’s wood
yard. Mead transferred Roush to a light duty position in the
plant’s hospital. Roush retained his regular pay rate while on
this temporary light duty.
Richard Yoke is an employee relations representative at
Mead’s Chillicothe Mill. On March 30, 1995, Yoke sent a letter
to Roush that read:

Based on your work capacity evaluation received on
March 8, 1995, Dr. Berling’s examination of March 29,
1995 and your physician’s work release dated February 2,
1995, your physical condition will allow you to move to a
permanent job in the mill. It is the Company’s position
that these examinations reveal that your restrictions are
such that it would not be in the best interest of Health and
Safety, nor an act of prudent judgment in placing you on
the Woodyard Process Operator and Support Operator
jobs.

9 Art. XI, sec. 9, of the collective-bargaining agreement reads.
A. Temporary
An employee who is injured on the job and who cannot per-
form the duties of his regular job shall be transferred to any start-
ing job in his department which he can satisfactorily perform and
to which his seniority entitled [sic] him. His regular job will be
filled as [a] temporary vacancy and he and all other employees af-
fected by the transfer will be returned to their regular jobs when
he is physically able to do so. If the injured employee is unable to
perform the starting job in his department his ability and plant
seniority shall be given consideration for base rate jobs in other
departments.
B. Permanent
An employee who is disqualified from a job because he can-
not continue to meet the physical job requirements established by
the Company under applicable state and/or federal statutes, or has
been injured on the job and cannot perform the duties of his regu-
lar job, shall be transferred to any job in his department which he
can satisfactorily perform and to which his seniority entitles him.
If the disqualified employee is unable to perform any job in his
department, he shall exercise previously acquired department sen-
iority to former departments to place himself on a job he can sat-
isfactorily perform and to which his seniority entitles him. If the
disqualified employee is unable to place himself exercising previ-
ous departmental seniority, his ability and plant seniority shall be
given consideration for starting jobs in other departments.
According to Article XI, Section 9(B) [of the collective-
bargaining agreement], you must take your bump in the
following manner.
. . . .
Enclosed are seniority lists dated March 21, 1995. Please
use these lists as a basis to pick a job in a department to
which you are entitled based on your seniority and physi-
cal condition. Please contact me . . . by April 7, 1995 with
your decision.10

Mead, that is to say, told Roush that it had concluded that he
was permanently unable to meet the physical requirements of
his wood yard position, advised Roush that the Company was
going to transfer him to a different permanent job, and ordered
Roush to select a position that he was physically able to per-
form and to which his seniority entitled him.
Yoke met with Roush and two officials of the Union and dis-
cussed the import of the letter.
Roush then called Bost to say that the Company had ordered
Roush to bid on a permanent job. Roush did not tell Bost that
Mead had informed other union officials of the planned action.
In a second conversation, Roush told Bost that Roush was go-
ing to see his physician again about his physical condition.
During one of those conversations, Bost told Roush that Roush
should not bid on any permanent job. That is, Bost advised
Roush not to comply with Yoke’s March 30 letter. Bost did not
suggest to Roush that Roush grieve Yoke’s order. (The collec-
tive-bargaining agreement provides for typical grievance and
arbitration procedures.11)
The March 30 letter ordered Roush to tell Yoke, no later than
April 7, what position Roush wanted to bump into. Roush did
not do so. When Yoke did not hear from Roush, on April 18
Yoke sent Roush another letter. The letter read:

On March 30, 1995, I met with you and explained that you
needed to select a job in a department which your seniority
would allow, based on your physical restrictions. I asked
you to select this job and respond to me by April 7, 1995.
As of this date, I have not heard from you regarding your
decision.
Please take some time to review the seniority lists I pro-
vided you, select a job which your seniority will allow and
contact me directly with your decision no later than April
25, 1995. If you have any questions, please feel free to call
me.12

Roush contacted Bost again, telling Bost that Mead had
again ordered him to exercise his bumping rights. Bost told
Roush that Mead was proceeding improperly and that Roush
should not comply with this letter either. Again, Bost did not
propose that Roush grieve the Company’s order.
On April 25, upon receiving no word from Roush, Yoke con-
tacted Bost to describe the Roush situation and to ask for help
in getting Roush to respond. According to Yoke, Bost said that
he would not do that and that, in fact, it was he (Bost) who had
told Roush not to respond to the letters and not to exercise his
bumping rights. (Bost agreed that he had advised Roush not to
bump into a permanent position but also testified that he had
never told Yoke that he had told Roush that. I credit Yoke on
this point, not Bost.)
10 R. Exh. 2.
11 GC Exh. 2 at 32–34.
12 GC Exh. 3.
MEAD CORP. 513
The meeting between Yoke and Bost meeting was followed a
day or two later, on April 27 or 28, by a meeting between Yoke
and Roush. Yoke again ordered Roush to exercise his bumping
rights. In the course of the discussion Roush said that Bost had
told Roush not to respond to Yoke’s letters and he had followed
that advice. (I note that no party chose to call Roush as a wit-
ness even though, as of the hearing, Roush remained a Mead
employee and a member of the Union.) Yoke told Roush that
Roush had no choice in the matter—he had to select a new
permanent position. Roush said he would do so. Either at this
meeting or one a day or two later, Roush was advised that his
past failure to comply with Yoke’s letters was a violation of
Company rules but that Mead had decided not to discipline
him. Roush subsequently did select a new position.13
Lewis Eugene Bussa is Yoke’s boss. He is the human re-
sources manager in the carbonless business unit at the Chilli-
cothe Mill. Mead denies that Bussa is a supervisor. But Mead
admits that Bussa is an agent of Mead and admits that Bussa
has the authority to give direct orders to employees and to dis-
cipline them.
Yoke told Bussa about the advice that Bost had given to
Roush. Bussa responded by calling Bost to his office on about
April 28.
Bussa started the meeting by telling Bost that he had a prob-
lem with Bost’s behavior regarding two different matters. One
of those matters does not concern us here. The other had to do
with Bost’s telling Roush not to respond to an order from man-
agement. In respect to the Roush matter, Bost replied that, in
the Union’s opinion, Mead should keep Roush on temporary
duty. Bussa got angry. If Bost disagreed with an order handed
down by management, Bussa said, then Bost could file a griev-
ance. But a union steward, Bussa continued, has no right to tell
employees that they should not obey a direct order. Doing so
amounts to “self-help” (in Bussa’s words14) and that constitutes
insubordination. Bost, said Bussa, had accordingly jeopardized
the employment of both Bost and Roush. When Bussa contin-
ued in this vein, Bost announced that he was unwilling to hear
any more of Bussa’s criticism and got up to leave. Bussa order-
ed Bost to stay put and told Bost that he would be fired if he
left Bussa’s office. Bost stayed put. Bussa then wrapped up the
discussion about the Roush situation by saying that if, in the
future, Bost again encouraged an employee to ignore a man-
agement directive, as Bost had here, Mead would fire him.
As a last matter I note that Mead has two rules pertaining to
insubordination. (As is the case with all of the Company’s
rules, they are a part of the collective-bargaining agreement.)
One states that “insubordination (refusal to perform service
connected with the efficient operation of the plant as required
by a superior, or refusal to obey any reasonable order given by
a superior)” is punishable by discharge.15
The other states that “inducing employees to engage in any
practice in violation of Company rules” is punishable by sus-
pension (for the first and second offenses) and discharge (for
the third offense).16

13 Mead concluded that Roush’s disabilities precluded him from
working in the position that Roush first selected. Roush then selected
another position. Mead agreed with that selection and assigned Roush
to that position. The Union filed a grievance in the matter. The griev-
ance was pending at the time of the hearing.
14 Tr. 140.
15 GC Exh. 2, at p. 54. The parenthetical is a part of the rule.
16 Id. at 52–53.
As noted earlier, my recommendation is that the Board dis-
miss the complaint’s allegation that Mead violated the Act
when Bussa threatened Bost with discipline by reason of the
advice that Bost gave to Roush.17
When employees are facing a situation where, in the em-
ployees’ view, compliance with a supervisor’s order would
present immediate risks to the employees’ health or safety, a
refusal by the employees to obey the order will, in many cir-
cumstances, constitute protected activity. NLRB v. City Dis-
posal Systems, 465 U.S. 822 (1984); see Washington Aluminum
Co., 370 U.S. 9 (1962).
But that kind of situation is the exception. The usual and
long-recognized rule is that employees faced with an order that
they believe to be in conflict with the terms of a collective-
bargaining agreement must “obey now; grieve later.” Special-
ized Distribution Management, 318 NLRB 158, (1995); see
Carolina Freight, 295 NLRB 1080 fn. 1 (1989); Mead Corp.,
275 NLRB 323, (1985); Jos. Schlitz Brewing Co., 240 NLRB
710, (1978). And part and parcel of that rule is a steward’s obli-
gation to adhere to the grievance process rather than to “ad-
vis[e] employees not to comply with a legitimate directive of
the Company.” G & H Products, 261 NLRB 298 (1982), enf.
denied on other grounds 714 F.2d 1397 (7th Cir. 1983).
Here there was no urgent issue of health or safety. Manage-
ment had merely ordered Roush to select a permanent job that
he believed his seniority and physical condition permitted him
to occupy. (I note that neither Roush’s nor Bost’s unhappiness
with Yoke’s directives had anything to do with concerns about
Roush’s health or safety. In any case, Roush’s actual transfer
into a new job would come later.) And Mead gave Roush
plenty of time to make the selection. In these circumstances
Bost’s advice to Roush that Roush ignore Yoke’s directives
amounted to “engaging in the unprotected activity of advising
employees to engage in insubordination.” G & H, supra.
As a last matter, nothing in the record suggests that Bussa’s
response to Bost was a function of union animus. Nor was
Bussa’s response aimed at Bost’s point of view about the im-
port of the collective-bargaining agreement as it applied to
Roush. Rather, what troubled Bussa was “the means of protest”
that Bost told Roush to utilize. Mead Corp., supra, 275 NLRB
at 323.
IV. MEAD’S DISCIPLINE OF BOST IN DECEMBER 199518
Bargaining unit employees Melvin Atwood, Mark Buskirk,
and Duane Francis are day-shift maintenance technicians. They
work out of the electrical and instrumentation (E&I) shop in the
Chillicothe facility’s carbonless business unit. Their immediate
supervisor is Rick Johnson. Johnson’s boss is Maintenance
Superintendent Randy Wittkugle.
On November 29, 1995, Wittkugle told Johnson that he
wanted to meet with Johnson, Atwood, Buskirk, and Francis at
2:30 that afternoon. Wittkugle was dissatisfied with the three
employees’ performances and attitudes and had decided to tell
17 Par. 5(a) of the complaint reads: “About April 27, 1995, Respon-
dent, by Gene Bussa, at its Chillicothe, Ohio, facility, threatened an
employee with discharge because he attempted, in his capacity as union
steward, to represent a fellow employee in a contractual or work-related
dispute.”
18 This facet of this proceeding arose from an unfair labor practice
charge filed on December 5, 1995, in Case 9–CA–33447. See fn. 2,
supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 514
the three precisely what he wanted from them and to make it
clear that they had better shape up.
Wittkugle invited the Union to provide a representative at the
meeting. Wittkugle issued the invitation to the Union mainly
because he felt that there was a good chance that the employees
would be unwilling to attend the meeting unless they had a
union representative there. And, in fact, when the employees
heard about the meeting from Johnson, one of them (Francis)
asked Johnson for union representation. Johnson told them that
Wittkugle had already taken care of that.
The November 29 Meeting
The meeting began on schedule in the E&I shop, a small
room—about 12 feet wide by 15 feet long. Present: Wittkugle,
Johnson, Atwood, Buskirk, Francis, and on behalf of the Union,
Chief Steward Bost.
Wittkugle had prepared a written list of items he wanted to
cover. He immediately began discussing the items, one by one.
The employees’ deficiencies to which Wittkugle referred in-
cluded: not handling their maintenance assignments adequately;
squabbling among themselves; and attitudes that interfered with
the performance of their work.
In the midst of Wittkugle’s listing of these problems,
Buskirk began to smile. Given the nature of Wittkugle’s talk,
that was not an altogether appropriate facial expression. Addi-
tionally, about a week before, Wittkugle had gotten upset when
both Buskirk and Francis had broken out into laughs after
Wittkugle had criticized them. In any event, at this meeting on
November 29 Wittkugle responded to Buskirk’s smile by ta-
king a step toward Buskirk while heatedly saying something on
the order of, “what are you laughing at? This isn’t a laughing
matter.”
This was the point at which Bost jumped in. He told
Wittkugle that “an employee has the right to snicker,” and that
“if anyone had a personality problem, an attitude problem,” it
was Wittkugle.19 Bost continued by calling Wittkugle “the
dumbest supervisor I’ve ever worked for in my life.”20
Wittkugle replied by telling Bost that he was disrupting the
meeting and by ordering Bost to leave the shop. Bost refused,
saying that he was there to represent the employees. Wittkugle
told Bost that he (Wittkugle) would get another union represen-
tative to attend the meeting. Bost again refused to leave, refer-
ring to the fact that he is the chief steward. Wittkugle then said,
“I am giving you a direct order to leave.” (At Mead, a supervi-
sor’s use of the term “direct order” means that the supervisor is
very, very, serious.) Bost refused to leave.
There is a telephone in the E&I shop. Bost, upon rejecting
Wittkugle’s direct order, moved toward the telephone. What
happened was that Bost had decided that the meeting needed
the presence of the Chillicothe facility’s human resources man-
ager, Darrell Elsemore.
As Bost reached the telephone Wittkugle ordered him not to
use the phone in the shop, to use another phone if he wanted to
make a call. Bost said that he was going to use the phone in the
shop. Wittkugle said, “I’m giving you a direct order not to use
that phone.” Bost ignored Wittkugle and placed a call to the
human resources department. (As it turned out, Elsemore was
not available.)

19 The quotations are from Bost’s testimony at Tr. 241.
20 Everyone agrees that Bost said that, or words to that effect. See Tr.
210, 228 (Francis), 241 (Bost), and 318 (Wittkugle).
With Bost speaking on the shop’s telephone, Wittkugle re-
sumed the meeting for another couple of minutes, listing what
he considered to be additional deficiencies of the employees.
Wittkugle concluded the meeting by telling Atwood, Buskirk,
and Francis that if they failed to correct the deficiencies he had
listed, he would discipline them.
The meeting had lasted, at most, about 10 minutes.
A few days later Mead issued a written warning to Bost
based on his behavior at the meeting.
Was Bost’s Behavior Protected
I shall proceed assuming, arguendo, that the November 29
meeting was one to which Weingarten protections applied.21
A union steward’s communication to a supervisor on behalf
of a fellow employee ordinarily is protected by the Act. In that
regard

The Board has long held that in the context of protected
concerted activity by employees, a certain degree of lee-
way is allowed in terms of the manner in which they con-
duct themselves. Although flagrant, opprobrious conduct
may sometimes cause an employee’s concerted activity to
lose the protection of the Act, impropriety alone does not
strip concerted conduct of statutory protection.22

But the permissible limits of a union official’s behavior in
Weingarten meetings are appreciably narrower than in many
circumstances involving protected activity.
The Board had occasion to discuss this distinction at some
length in New Jersey Bell Telephone Co., 308 NLRB 277,
(1992). There the Board made it clear that a Weingarten repre-
sentative “is free to counsel the employee and “is entitled to
object to questions that may reasonably be construed as harass-
ing.” But

The Board has long recognized the Supreme Court’s inten-
tion in the Weingarten decision to strike a careful balance
between the right of an employer to investigate the con-
duct of its employees at a personal interview, and the role
to be played by the union representative present at such an
interview . . . . It is clear from the Court’s decision in
Weingarten that the role of the union representative is
provide assistance and counsel to the employee being in-
terrogated . . . . The Court specifically declared, however,
that the presence of the representative should not trans-
form the interview into an adversary contest or a collective
bargaining confrontation, and that the exercise of the
Weingarten right must not interfere with legitimate em-
ployer prerogatives.23

I turn now to Bost’s behavior at the November 29 meeting.
Bost’s First Set of Utterances
In the face of Wittkugle’s unrelieved criticism of the three
employees’ performance, Buskirk opted to smile. (The record
does not tell us why, since Buskirk did not testify.) When
Wittkugle responded angrily, Bost retorted that: “an employee
21 The reference is to J. Weingarten, Inc., 420 U.S. 251 (1975). I
specifically do not reach any conclusion about whether the meeting was
in fact one to which the Weingarten protections did apply.
22 Aroostook County Regional Ophthalmology Center, 317 NLRB
218, (1995) (citations omitted), enf. denied in part 81 F.3d 209 (D.C.
Cir. 1996).
23 308 NLRB at 279 (citations omitted).
MEAD CORP. 515
has the right to snicker”; “if anyone had a personality problem,
an attitude problem,” it was Wittkugle; and “you’re the dumb-
est supervisor I’ve ever worked for in my life.”
I will assume (again arguendo) that Bost was entitled to say
that Buskirk had the “right to snicker.” But the remainder of
Bost’s utterance plainly was outside the bounds of protected
behavior. Those words were hardly a counseling of any of the
employees, or an effort to defuse the situation, or even a claim
that Wittkugle was proceeding in an improper way. Rather, in
the presence of three employees and another supervisor, Bost
opted for an ad hominem attack on Wittkugle’s personality,
attitude, and intellectual capacity. However serious that would
be standing alone, additionally it disrupted the meeting.
Bost’s Refusal to Leave the Shop
Wittkugle responded to Bost’s attack by telling him to leave
the shop. Bost refused to leave. Wittkugle again ordered Bost to
leave, saying that he would have another union representative
join the meeting. Bost refused to leave. Wittkugle then gave
Bost “a direct order” to leave. Bost refused to leave.
Since Bost had “exceeded the permissible role of a Weingar-
ten representative,” Bost “forfeited his right to remain” in the
meeting. New Jersey Bell at 280; accord: Yellow Freight Sys-
tem, 317 NLRB 115, (1995). Thus each of Bost’s three refusals
to obey Wittkugle’s orders to leave the shop was unprotected
by any provision of the Act.
Bost’s Telephone Call
It is not the function of a Weingarten representative to deter-
mine which management representatives should be present. Yet
Bost, having decided that the meeting needed Elsemore, chose
to call Elsemore in the midst of the meeting from the shop’s
telephone. Particularly given the small size of the shop, Bost’s
use of the telephone was obviously disruptive. Once again Bost
had “exceeded the permissible role of a Weingarten represen-
tative.” Wittkugle twice told Bost to use a telephone elsewhere.
Bost twice refused and did make the call, while the meeting
was in progress, from the shop. Both refusals and the telephone
call itself were outside the protections of the Act.
I note that, prior to the meeting, Bost had asked Elsemore to
attend the meeting. Elsemore refused but said that Bost could
call him if necessary. The General Counsel appears to contend
that that exchange between Elsemore and Bost entitled Bost to
the Act’s protections when Bost made the call from the shop
while the meeting was in progress and, therefore, that the Act
also entitled Bost to reject Wittkugle’s orders to use another
phone. But I consider the pre-meeting Elsemore-Bost exchange
to be irrelevant to the issues in this proceeding.24
Mead’s Discipline of Bost
On Thursday, November 30 (the day after the meeting)
Wittkugle met with Elsemore and described the events at the
meeting. The picture that Wittkugle painted was largely in ac-
cord with my description, above. Wittkugle argued to Elsemore
that Bost’s actions showed that Bost had deliberately tried to

24 Also prior to the meeting, Bost advised Atwood, Buskirk, and
Francis just to listen to Wittkugle, to refrain from responding to him.
Mead interprets that advice as an effort on Bost’s part to prevent the
meeting from accomplishing anything by having the employees remain
silent even when Wittkugle wanted their comments or questions. But I
do not understand that to have been Bost’s intent. Rather, the likely
reason that Bost so advised the employees was (ironically) to have the
employees avoid getting into a confrontation with Wittkugle.
“sidetrack “ the meeting.25 (I do not find that to be the case. But
I also find that Wittkugle honestly believed that that was Bost’s
motivation.) Wittkugle opined that Bost’s refusal to obey
Wittkugle’s direct orders had “serious implications.”26
Elsemore asked Bussa (the human resources manager in the
carbonless business unit) to meet with Atwood, Buskirk, and
Francis about what had happened at the November 29 meeting.
Bussa did so. (As Francis recounted the November 29 meeting
during his session with Bussa, Wittkugle was more aggressive
toward the employees and Bost than as I have described. But
Francis told Bussa about Bost’s characterization of Wittkugle
as dumb and about Bost’s numerous refusals to obey
Wittkugle’s orders.)
Bussa gave his report to Elsemore on Monday, December 4.
Immediately after receiving that report, Elsemore called Bost.
Elsemore told Bost to come to his office along with Melvin
McNichols, the Union’s president. When Bost and McNichols
arrived, Elsemore told them what Wittkugle had said about the
meeting and asked for Bost’s response. Bost denied that he had
been disruptive but confirmed that he had refused Wittkugle’s
orders to leave the meeting and to refrain from using the shop’s
phone.
Still on December 4, Elsemore met with Bussa and
Wittkugle about how to respond to Bost’s behavior at the No-
vember 29 meeting. All agreed that Bost should be disciplined.
Wittkugle urged that Bost receive a suspension. Elsemore de-
cided that the discipline should be limited to a written warning.
Elsemore thereupon drafted a letter to Bost that reads, in part:

During the course of the [November 29] meeting, you
launched a personal attack at Mr. Wittkugle indicating you
knew him; had worked for him and claimed he was the
dumbest superintendent we had.
Your behavior was disruptive and after a time you
were asked to leave the meeting which you refused to do.
You were then instructed to leave the meeting and you re-
fused.
You picked up a telephone in the room where the
meeting was held to call me. You were asked to use a
phone in a nearby office and you refused to do that as
well.
Because of your disruptive, insubordinate behavior
which you exhibited at that meeting, this is a Written
Warning that such behavior now or in the future is unac-
ceptable.
. . . .
I am hopeful that the unacceptable behavior you exhib-
ited on November 29, 1995 will be corrected and will not
occur again. If it does, more severe discipline, up to and
including termination of your employment, could occur.27

Generally Mead either delivers disciplinary letters by hand to
employees or sends the letters via certified mail. Elsemore took
the letter to a local post office, discovered that he was too late
to send the letter by certified mail, and sent it by regular mail.
Bost received the letter when he returned home from work on
December 6. In the meantime, on December 5, Elsemore saw
Bost at the Board’s Regional Office in Cincinnati when both
attended the first day’s hearing in this proceeding. (See fn. 2,
25 Wittkugle, Tr. 321.
26 Id.
27 GC Exhs. 14 and 15.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 516
supra.) Elsemore told Bost that a letter to him was on the way,
that Elsemore wanted talk to Bost about it, and that Bost should
come to Elsemore’s office the next day, December 6.
Bost did meet with Elsemore on December 6. Since Bost had
not yet received Elsemore’s December 4 letter, Elsemore gave
Bost a copy. Bost thereupon filed a grievance.
Did Mead’s Discipline of Bost Violate the Act.
The General Counsel contends that all of Bost’s conduct at
the November 29 meeting was protected by the Act and that
Mead, by disciplining Bost for such conduct, violated Section
8(a)(1). The General Counsel also contends that Mead violated
8(a)(3) of the Act in that the reason that the Company disci-
plined Bost was because of Bost’s efforts to represent Atwood,
Buskirk, and Francis during the November 29 meeting and
because of Bost’s other union activities. The General Counsel
further contends that the discipline violated Section 8(a)(4) of
the Act in that Mead’s motivation in issuing the warning was to
punish Bost for his part in Case 9–CA–32901.
As for the General Counsel’s initial contention, I have found
that the behavior for which Bost was disciplined was not pro-
tected by the Act.
As for the General Counsel’s contentions that Mead’s disci-
pline of Bost violated Section 8(a)(3) and 4), they have no sup-
port whatsoever in the record.
There is no evidence of union animus on Mead’s part. And
the fact that the discipline occurred close in time to Bost’s ap-
pearance at the December 5 hearing is hardly proof that the
hearing played a role in Mead’s decision to discipline him—
particularly since the decision to discipline was made the day
before the hearing. The General Counsel refers to the “hasty na-
ture of the decision” to discipline Bost.28 As I understand that
contention, it is that Mead took no action in respect to Bost’s
behavior at the November 29 meeting until late in the day on
December 4—i.e., just before the December 5 hearing in this
proceeding.29 But that is factually incorrect. On Thursday, No-
vember 30—less than 24 hours after the November 29 meet-
ing—Wittkugle notified Elsemore of Bost’s behavior. Elsemore
thereupon proceeded in an utterly appropriate manner: On the
same day that he received Wittkugle’s report, Elsmore ordered
Bussa to investigate. Bussa did so. Then, on Monday, Decem-
ber 4, Elsmore met with Bost (and with Bost’s union represen-
tative) and then met to discuss the matter with Bussa and with
the supervisor directly involved (Wittkugle).
The General Counsel also contends that Mead treated Bost
disparately, further evidence, in the General Counsel’s view, of
Bost’s discipline being a product of Bost’s union activities and
testimony against Mead. The General Counsel points out that
prior to Mead’s disciplining of Bost, the Company had never
disciplined a steward for the steward’s representation of em-
ployee; or, at least, Mead had not done so within the memory of
either Bost or Elsemore. The General Counsel also refers to

28 Br. at 10.
29 The General Counsel assuredly does not mean that Mead should
have embarked on a more extensive, longer-lasting, analysis of Bost’s
behavior. For one thing, the collective-bargaining agreement required
Mead to have notified Bost of the Company’s disciplinary action
“within five (5) working days” of the November 29 meeting (GC Exh.
2 at p. 50). For another, on the witness stand Bost complained about
how long it took for Mead to tell him of the discipline, not that Mead
acted hastily.
Mead’s treatment of other employees who were guilty of in-
subordination.
But the fact that Mead has not previously disciplined a stew-
ard for behavior in connection with the steward’s representa-
tional duties is without significance, particularly since, with one
exception, the record includes no indication that a steward in
that situation had ever behaved in a way that caused his words
or actions to be unprotected by the Act. (The exception is
Bost’s representation of Roush, discussed above. But, needless
to say, the General Counsel does not contend that Mead’s fail-
ure to discipline Bost there is evidence of Mead’s disparate
treatment of Bost in connection with the November 29 meet-
ing.)
As for other incidents involving insubordination, as I read
the evidence in point, it proves nothing about possible dis-
criminatory motives on Mead’s part. (That evidence shows that
Mead’s response to employees who refused to comply with
supervisors’ orders has been to hand out discipline ranging
from verbal warnings to a 5 days’ suspension.30 Moreover there
is no indication that any of those other insubordination situa-
tions occurred under circumstances as likely to be damaging to
the supervisor’s authority as was the case with Bost’s attack on
Wittkugle.)
Finally, Bost testified that one union vice president regularly
got “out of hand” during “grievance meetings” in that he loudly
used profanity.31 According to Bost, Mead did not discipline
that official. But the significant phrase there is “grievance
meetings.” The Supreme Court’s Weingarten decision itself
makes it clear that the scope of protected behavior in Weingar-
ten meetings is narrower than that in grievance meetings.32
On these findings of fact and conclusions of law and on the
entire record, I issue the following33
ORDER
The Respondent, Mead Corporation, Fine Paper Division,
Chillicothe, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Maintaining rules that prohibit employees from soliciting
for purposes protected by Section 7 of the Act during nonwork-
ing time or from distributing literature for purposes protected
by Section 7 of the Act during nonworking time in nonworking
areas of its Chillicothe Mill.
(b) Refusing to bargain collectively with United Paperwork-
ers International Union, Local 731, AFL–CIO, by refusing to
furnish the Union information that it requests that is relevant
and necessary to the Union’s performance of its functions as
the exclusive bargaining representative of employees in the
appropriate unit. The unit is:

All production, maintenance, restaurant, quality assurance
employees of The Mead Corporation, Chillicothe Opera-
30 See GC Exhs. 19, 20, 21 and 23.
31 Tr. 259-61.
32 I do not intend to suggest that I have concluded that Bost’s behav-
ior at the November 29 meeting would have been protected even had
that meeting been called for grievance purposes.
33 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
MEAD CORP. 517
tions, Chillicothe Mill, Chillicothe, Ohio, but excluding
administrative, executive, factory clerical, engineering de-
partment, technical or engineering assistants, customer
services department, woods department, mail and multilith
employees, hospital employees, passenger car chauffeurs,
guards, and supervisors as defined in the National Labor
Relations Act.

(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Rescind or modify its rules so that employees are not
prohibited from soliciting for purposes protected by Section 7
of the Act during nonworking time and are not prohibited from
distributing literature for purposes protected by Section 7 dur-
ing nonworking time in nonworking areas of its premises.
(b) Furnish the Union with such contractor swipe sheets as
the Union may from time to time request.
(c) Within 14 days after service by the Region, post at its
Chillicothe Mill, in Chillicothe, Ohio, copies of the attached
notice marked “Appendix.”34 Copies of the notice, on forms

34 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
provided by the Regional Director for Region 9, after being
signed by Mead’s authorized representative, shall be posted by
Mead immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places where no-
tices to employees are customarily posted. Mead shall take
reasonable steps to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, Mead has gone out of
business or closed the facility involved in these proceedings,
Mead shall duplicate and mail, at its own expense, a copy of the
notice to all current members of the above-described bargaining
unit and all former members of the bargaining unit who were
employed by Mead at the Chillicothe Mill at any time since
May 15, 1995.
(d) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Mead has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”