Orchids Paper Products Co.

National Labor Relations Board - Board Decisions

Nov 20, 2018

367 NLRB No. 33 (N.L.R.B. 2018)

367 NLRB No. 33
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.
Orchids Paper Products Company and United Steel,
Paper and Forestry, Rubber, Manufacturing,
Energy, Allied Industrial and Service Workers
International Union, AFL-CIO. Cases 14–CA–
184805, 14–CA–184807, 14–CA–188413, 14–CA–
189031, 14–CA–190022, 14–CA–192908, and 14–
CA–199035
November 20, 2018
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On September 15, 2017, Administrative Law Judge
Andrew S. Gollin issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed an answering brief, and the Re-
spondent filed a reply 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 exceptions1 and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions
only to the extent consistent with this Decision and Or-
der.
INTRODUCTION
The Respondent, which produces paper products, em-
ploys approximately 185 employees at its Pryor, Okla-
homa converting facility. The employees are represented
by the United Steel, Paper and Forestry, Rubber, Manu-
facturing, Energy, Allied Industrial and Service Workers
International Union, AFL-CIO (Union), with the most

1 There are no exceptions to the judge’s dismissal of the complaint
allegations that the Respondent violated Sec. 8(a)(5), (3), and (1) of the
Act by unlawfully withdrawing from a verbal agreement regarding the
use of temporary employees to perform non-production overtime work;
violated Sec. 8(a)(5) and (1) by failing to bargain over the implementa-
tion of clothing and shoe policies; violated Sec. 8(a)(3) by suspending
and disciplining an employee for failing to adhere to a unilaterally
implemented flame-resistant clothing policy; and violated Sec. 8(a)(1)
by coercively accusing an employee of harassment and threatening him
with discharge because of his union activities, by informing an employ-
ee that he was being held to a higher work standard because of his
union activities, and by interrogating an employee regarding his union
membership.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
recent collective-bargaining agreement effective June 25,
2012, to June 25, 2016, and extended by mutual consent.
The General Counsel alleged, and the judge found, that
the Respondent committed numerous unfair labor prac-
tices from August 2016 through May 2017.3 We affirm
many of these violations, but reverse the judge’s findings
as to five allegations, as discussed below.
DISCUSSION
1. The 8(a)(5) and (1) violations
We agree with the judge that the Respondent violated
Section 8(a)(5) and (1) of the Act by: (1) unilaterally
implementing a policy requiring employees to wear
flame-resistant clothing at all times;4 (2) suspending and
disciplining an employee for failing to comply with the
unilaterally implemented flame-resistant clothing poli-
cy;5 (3) failing to continue in effect the terms and condi-
tions of the parties’ collective-bargaining agreement by
converting productions lines six and seven to “op-tech
lines” without the Union’s consent; and (4) unilaterally
changing employees’ health insurance.6

3 All further dates are in 2017 unless otherwise indicated.
4 We find that the Union never requested bargaining and that there
is insufficient record evidence to determine whether the parties reached
an agreement prior to the Respondent’s initial implementation of its
policy regarding when employees would have to wear the flame-
resistant clothing. Nonetheless, the Union never waived its right to
bargain over the Respondent’s broadening of this policy to mandate
that the maintenance employees wear the flame-resistant clothing at all
times while on duty nor did the parties bargain to impasse over it.
Thus, we agree with the judge that the Respondent’s announcement and
implementation of the broader flame-resistant clothing policy was an
unlawful unilateral change.
Member McFerran would affirm the judge’s finding that the Re-
spondent’s unilateral change to the flame-resistant clothing policy
without providing the Union with notice or an opportunity to bargain
over the decision violated Sec. 8(a)(5) and (1) of the Act.
5 Because we agree that employee Michael Besley’s suspension and
discipline violated Sec. 8(a)(5) and (1), we find it unnecessary to pass
on the allegation that his discipline for failing to correctly track work
orders and follow escalation procedures also violated Sec. 8(a)(3), as
finding this additional violation would not materially affect the remedy.
Member McFerran would affirm the judge’s finding that the Re-
spondent unlawfully disciplined Besley in retaliation for his protected
concerted and union activities.
6 Changing employees’ health insurance plans and benefits is a
mandatory subject of bargaining. See Mid-Continent Concrete, 336
NLRB 258, 259 (2001), enfd. 308 F.3d 859 (8th Cir. 2002); Seiler Tank
Truck Service, 307 NLRB 1090, 1100 (1992). In addition to the change
in the identity of the employees’ health insurance provider, noted by the
judge, the Respondent admits that the new health insurance offered
lower premiums, an expanded network, and removed the need for pri-
mary care physician referrals. Although these changes appear largely
beneficial to employees, whether the changes were beneficial or detri-
mental does not affect the Respondent’s duty to bargain. Allied Me-
chanical Services, 332 NLRB 1600, 1609 (2001); see also Atrium at
Princeton, LLC, 353 NLRB 540, 562-563 (2008), reaffirmed and in-
corporated by reference 356 NLRB 5 (2010), enfd. 684 F.3d 1310
(D.C. Cir. 2012). Thus, we agree that the Respondent violated Sec.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
However, we find, contrary to the judge, that the Re-
spondent did not violate Section 8(a)(5) and (1), on Feb-
ruary 8 and May 5, by modifying the parties’ collective-
bargaining agreement to prevent union officials from
conducting union business during work time. The
agreement states: “It is expected that the officers and/or
the shop steward will be away from their regular job as-
signment as little as possible. It is understood that if
union business or investigation of grievances need [sic]
to be conducted during working hours, supervisory per-
mission must be obtained in any departments affected.”
On February 8, employee and union steward Chris Mon-
toya attended a meeting with management to discuss
allegations that he left his work station and threatened
another employee’s family as part of a disagreement re-
garding a decertification petition. During this meeting,
Site Manager Court Dooley told Montoya that union ac-
tivities should be limited to nonwork time. We find that
this statement, made only once in response to an incident
regarding a decertification petition, not official union
business, was not an unlawful modification by the Re-
spondent of the provision in the parties’ collective-
bargaining agreement pertaining to employees conduct-
ing union business during working hours.
Similarly, on May 5, employee Shawn Teiger asked
Michael Besley, the Union’s president, for his assistance
regarding an attendance issue. After the pair discussed
the issue for a few minutes during work time, Besley said
that he would look into it later. Thereafter, Process Spe-
cialist Jeff Cochrell approached Teiger and informed him
that he could not conduct union business on work time in
work areas; Teiger then repeated the prohibition to Bes-
ley. When confronted by Besley with the fact that union
business was in fact allowed on work time with supervi-
sor permission, Cochrell replied that he was new and
unaware that it was permitted. This one-time misstate-

8(a)(5) and (1) by unilaterally changing the bargaining unit employees’
health insurance without providing notice and an opportunity to bargain
to the Union.
We further observe that the judge’s statement that the mere identity
of employees’ health insurance carrier is a mandatory subject of bar-
gaining is imprecise because it is not merely the change in the identity
of health insurance carriers that affects employees, but also the change
in the availability of certain benefits and the manner in which those
benefits are administered that accompanies the change in the identity of
a health insurance carrier. See Connecticut Light & Power Co., 196
NLRB 967, 968-969 (1972), enf. denied 476 F.2d 1079 (2d Cir. 1973).
Member McFerran further observes that under extant Board prece-
dent “an employer is not free to change [health insurance] carriers,
without notice to the certified bargaining representative and an oppor-
tunity to bargain on the issue.” Aztec Bus Lines, 289 NLRB 1021, 1036
(1988); see also Seiler Tank Truck Service, 307 NLRB 1090, 1100
(1992) (“The identity of the health insurance carrier is as much a man-
datory subject of bargaining as is the level of benefits to be enjoyed by
employees.”).
ment by a new supervisor did not, by itself, constitute a
modification of the parties’ collective-bargaining agree-
ment. It was a good-faith mistake that did not interfere
with Besley’s discussion with Teiger, and there is no
record evidence that Cochrell ever repeated it once con-
fronted with correct information.
Accordingly, in light of the circumstances described
above, including the isolated nature of the statements at
issue, we find that the Respondent did not unlawfully
modify the contract provision allowing for employees to
conduct union business when needed on work time with
supervisor permission and, therefore, we dismiss those
allegations.7
2. The 8(a)(1) violations
We agree with the judge’s findings that the Respond-
ent violated Section 8(a)(1) of the Act by: (1) threatening
an employee with discipline for not complying with the
unilaterally implemented flame-resistant clothing policy;
(2) instructing an employee not to contact the Occupa-
tional Safety and Health Administration unless manage-
ment had been informed first; (3) prohibiting employees

7 Member McFerran would affirm the judge’s finding that the Re-
spondent violated Sec. 8(a)(5) and (1) by unilaterally modifying the
terms of the parties’ agreement without the consent of the Union. See
Alaris Health at Rochelle Park, 366 NLRB No. 86, slip op. at 4 (2018).
It is clear that the plain language of the parties’ agreement permits
union officers and stewards to engage in union business during work
hours with supervisory approval, and the record reflects that was indeed
the practice. While the majority attempts to dismiss the General Coun-
sel’s allegation as isolated statements, the record does not support such
a conclusion.
Instead, the record contains multiple, relevant statements made by
Dooley and Cochrell to several union leaders that demonstrate the
Respondent’s inconsistent application of the agreement’s terms. A few
months prior to Dooley informing Chris Montoya and Darla Reed that
union activities were limited to nonwork time and non-work areas,
Dooley told Michael Besley and Reed that they could not talk union
business on the work floor, only during break time. Furthermore,
Dooley’s conversation with Jason Gann on January 25 illustrates
Dooley’s working knowledge of the parties’ agreement, including its
allowance for union activities during work time on the work floor with
supervisory approval. For example, when Gann’s lead man confirmed
that when Gann leaves his work station he tells him where he is going
and what he is doing Dooley responded by telling Gann to be sure to let
somebody know when he leaves his work station.
While Cochrell’s statement could have been a good-faith mistake, it
must be viewed in the context of Dooley’s statements and considered as
another example where the Respondent deviated from the terms of the
parties’ agreement. Additionally, whether Cochrell’s statement inter-
fered with Besley’s discussion with Teiger is not relevant to the issue of
whether the Respondent unlawfully modified the terms of the parties’
agreement. See Fort Pierce Jai-Alai, 310 NLRB 862, 862 (1993) (“It
is well established that Sec. 8(a)(5) and (1) and Sec. 8(d) of the Act
prohibit an employer that is a party to an existing collective-bargaining
agreement from modifying the terms and conditions of employment
established by the agreement without obtaining the consent of the un-
ion.”) For these reasons, Member McFerran would affirm the judge’s
finding that the Respondent violated Sec. 8(a)(5) and (1) of the Act.
ORCHIDS PAPER PRODUCTS CO. 3
from discussing the Union on the production floor or
during work time while permitting employees to discuss
other nonwork-related subjects;8 (4) accusing employees
of harassment for engaging in union activities;9 (5) tell-
ing an employee that his union activities were disrespect-
ful to management; (6) creating the impression of sur-
veillance of an employee’s union activities;10 (7) prohib-

8 In finding the violation, Member Emanuel agrees that an employer
cannot prohibit an employee from discussing unions on the production
floor or during work time to the extent that the employer permits dis-
cussions of other nonwork-related subjects. However, he notes that this
does not grant employees the right to engage in union activities during
work time that would interrupt or interfere with their work any more
than their discussions during work time of other nonwork-related sub-
jects.
Because we agree that Site Manager Dooley prohibited employees
from discussing the Union while permitting discussion of other non-
work-related subjects on November 29, 2016, we find it unnecessary to
pass on the allegation that Dooley and Human Resources Manager
Doug Moss similarly prohibited discussion of the Union during work
time on February 8. Finding this additional violation would not affect
the remedy. Member Kaplan would reverse the judge’s finding of a
violation because Dooley’s February 8 statement was not a general
prohibition against discussing the Union but a narrower directive limit-
ing when and where employees could conduct official union business.
9 In affirming this violation, we note that the employee in question
had been accused of harassing employees in the break room over a
decertification petition just weeks prior to the December 16, 2016 accu-
sation of harassment. Under these circumstances, an employee would
reasonably associate the later accusations of harassment with the first
accusation that was explicitly linked to her union activity.
Member Emanuel would reverse the judge’s findings that the Re-
spondent violated Sec. 8(a)(1) by accusing a union officer of harass-
ment. On December 16, 2016, and February 6, the Respondent told a
union official that it had received reports that she had been harassing
coworkers. There is no contention that the union official was engaging
in protected activities immediately beforehand or that the Respondent
made any reference to her protected activities. Although the Respond-
ent had accused the union official on November 29, 2016, of harassing
employees over a decertification petition, the General Counsel did not
allege that to be a violation, and the Respondent’s statements on De-
cember 17 and February 6 made no reference to the decertification
petition. Member Emanuel recognizes that an employer has an obliga-
tion to prevent harassment in the workplace. Here, the Respondent’s
statements on December 16 and February 6 did not in any way connect
the claims of reported harassment with the union official’s protected
activities, and the Respondent’s separate accusation weeks earlier
would not give the union official any reasonable basis for thinking the
Respondent was making such a connection. Accordingly, Member
Emanuel finds that the Respondent’s mere mentioning of the reports of
harassment to the union official was not unlawful.
10 In adopting the judge’s finding, we note that Stevens Creek
Chrysler Jeep Dodge, 353 NLRB 1294 (2009), cited by the judge, was
issued at a time when the Board lacked a quorum, but was subsequently
reaffirmed by a three-member panel. See 357 NLRB 633 (2011), enfd.
sub nom. Mathew Enterprise, Inc. v. NLRB, 498 Fed. Appx. 45 (D.C.
Cir. 2012).
The judge found that Site Manager Dooley’s statement to employee
Jason Gann that “people are reporting to me saying you are doing union
business on company time” unlawfully created the impression of sur-
veillance. We agree. Member Kaplan additionally observes that the
Respondent presented no evidence that department supervisors were
iting employees from speaking or asking questions dur-
ing employee meetings;11 and (8) prohibiting employee
union officials from conducting union business on the
production floor or during work time while permitting
employees to discuss other nonwork-related subjects.12
However, we reverse four 8(a)(1) violations found by
the judge. To begin, we find that a remark by Human
Resources Manager Doug Moss to employee Michael
Besley was not a threat of unspecified reprisals. Besley
was called into a meeting with several managers to dis-
cuss the proper way in which to wear the flame-resistant
clothing the Respondent had recently issued to employ-
ees. Besley had been wearing his pants with the legs
rolled up, complaining that they were too long and that
he was walking on them. After being told that the pant
legs had to be worn down, Besley questioned the reason
for this requirement. In response, Moss asked him “why
he was beating the pants thing to death asking people
about them?” Although his remark suggested that he
may have been exasperated with Besley's questions,
Moss did not imply that Besley would be disciplined or
that any other adverse action would be taken if he con-
tinued to question management about the flame-resistant
clothing policy. Accordingly, we find that an employee

required to report instances they had granted permission to engage in
union business during work time, no evidence that Gann had been
abusing the practice, and no other justification for Dooley’s statement.
Member Emanuel would reverse the judge and find that the Re-
spondent did not unlawfully create an impression of surveillance. He
finds that Dooley’s statement was merely to alert Gann that he had
heard that Gann was engaging in union business during work time.
11 We agree with the judge that overbroad statements by Human Re-
sources Manager Moss unlawfully prohibited employees Darla Reed
and Darlene Russell from commenting on policies of general interest
during future employee meetings.
Member Emanuel would reverse the judge and find that the Re-
spondent did not unlawfully prohibit employees from speaking or ask-
ing questions during meetings. The judge declined to discredit the
Respondent’s witness, Human Resource Manager Doug Moss, who
testified that he told employees Darla Reed and Darlene Russell that “if
they had objections to the policies and they felt that strongly about it, if
they wanted to cuss me or raise their voice at me to do so before the
meeting or after the meeting in my office or in some other office but
not to conduct themselves that way in a company meeting.” The Re-
spondent did not discipline the employees. Member Emanuel believes
that an employer does not violate the Act by instructing employees not
to use profanity or otherwise act disruptively in an employee meeting
and that this statement, by itself, would not reasonably interfere with
employees engaging in protected activities during future employee
meetings.
12 Member Emanuel agrees with the violation to the extent that the
employee union official’s union business on the production floor during
work time—a brief discussion with an employee about his points under
the Respondent’s attendance policy that lasted a few minutes—did not
cause any greater interference or intrusion on employees’ work than the
Respondent’s practice of permitting employees to discuss other non-
work-related subjects on the production floor during work time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
would not reasonably interpret Moss’ remark as a threat
of unspecified reprisals.
Next, we reverse the judge's findings that, during a
conversation on January 25, Site Manager Dooley unlaw-
fully created the impression that employee Jason Gann’s
union activities would be placed under greater scrutiny
and that Dooley unlawfully prohibited Gann from con-
ducting union business. Gann was called into Dooley’s
office to discuss his conduct while acting as the union
representative for another employee earlier that day.
During this meeting, Dooley, among other things, asked
if Gann had notified his supervisor when he left his work
station to conduct union business. Gann replied in the
affirmative. As discussed above, under the parties’ col-
lective-bargaining agreement, supervisor permission is
required if union business is done during work time. In
context, Dooley merely inquired as to whether Gann had
complied with the terms of the collective-bargaining
agreement and did not create an impression of placing
his union activities under greater scrutiny. Further,
Dooley’s inquiry did not prohibit Gann from conducting
union business during work time with supervisor permis-
sion.
Finally, we find that the Respondent did not unlawful-
ly promulgate a rule prohibiting employees from talking
to employees in other departments. To support his find-
ing, the judge relied on a single statement made by Pro-
cess Specialist Kelly Foss to employee Darla Reed that
employees were not allowed to go to any other produc-
tion line to talk to other people. As the Board has re-
peatedly stated, before assessing whether an alleged rule
is facially unlawful, we must initially determine whether
the Respondent, in fact, promulgated a rule. See Teach-
ers AFT New Mexico, 360 NLRB 438, 438 fn. 3 (2014)
(employer did not orally promulgate rules during one-on-
one conversations with employees where the record
failed to show that employer’s statements were commu-
nicated to any other employees or would reasonably be
construed as establishing a new rule or policy for all em-
ployees). Here, the statement was only communicated to
one employee and, although Reed testified that she saw
Foss speak with employees on other lines after she re-
ceived the directive, there is no evidence that the prohibi-
tion was repeated to those employees as a general re-
quirement. Accordingly, we find that the Respondent did
not promulgate an unlawful work rule prohibiting em-
ployees from speaking with employees in other depart-
ments.13

13 Member McFerran notes that in finding the violation, the judge
relied upon unrefuted testimony that various supervisors or managers
had instructed union leaders that they could not conduct union business
during work time or on the production floor. Had the General Counsel
3. Violations based on joint employer status
We also agree with the judge that the Respondent is a
joint employer of the temporary employees supplied by
People Source Staffing Professionals, LLC (People
Source), a nationwide staffing company.14 For that rea-
son, the Respondent violated Section 8(a)(5) and (1) by
failing to apply certain terms of the parties’ collective-
bargaining agreement to the “permanent temporary” em-
ployees,15 violated Section 8(a)(3) and (1) by discharging

alleged that the Respondent unlawfully promulgated and maintained a
rule prohibiting employees from discussing the union or engaging in
union activities as opposed to a rule prohibiting employees from talking
to employees from other departments, the record in this case would
have supported finding such a violation. See Fresh & Easy Neighbor-
hood Market, Inc., 356 NLRB 588, 591–592 (2011), enfd. 459 Fed.
Appx. 1 (D.C. Cir. 2012) (finding that Respondent unlawfully promul-
gated a rule in response to union activity when a manager informed an
employee on two separate occasions that she was not allowed to talk
about the Union while on the clock or on the sales floor).
14 In affirming the judge’s finding that the Respondent is a joint em-
ployer of the temporary employees, we do not rely on the Respondent’s
limited involvement in the employees’ wages, which were set and paid
by People Source. The Respondent’s role was to maintain the tempo-
rary employees’ timecards, verify the hours worked by a temporary
employee if a question arose, and send the timecards to People Source
for processing and payment. This limited recordkeeping is not indica-
tive of joint-employer status.
Members Kaplan and Emanuel agree that the Respondent is a joint
employer of the temporary employees under the standard set forth in
Browning-Ferris Industries of California, Inc. d/b/a BFI Newby Island
Recyclery, 362 NLRB No. 186 (2015). They continue to believe that
the Board should reconsider that standard in a future proceeding. See
The Standard for Determining Joint-Employer Status, 83. Fed. Reg.
46681, 46681-46687 (2018). However, in this case, Members Kaplan
and Emanuel find that the result would be the same under the joint
employer standard overruled in Browning-Ferris because the Respond-
ent directly exercised control over the temporary employees’ terms and
conditions of employment that was more than limited or routine in
nature.
Member McFerran would affirm the judge’s finding that the Re-
spondent is a joint employer of the temporary employees under Brown-
ing-Ferris. In Browning-Ferris, the Board explained that when faced
with a multifactor common law inquiry such as joint employer “all of
the incidents of the relationship must be assessed and weighed with no
one factor being decisive.” 362 NLRB No. 186, slip op. at 16 quoting
NLRB v. United Insurance Co. of America, 390 U.S. 254, 258 (1968).
Furthermore, Member McFerran disagrees with her colleagues that the
Board’s existing joint employer standard warrants reconsideration,
especially in light of its reasoned application here. See The Standard
for Determining Joint-Employer Status, 83 Fed. Reg. 46681, 46687-
46692 (2018).
15 The Respondent, as the joint employer of the “permanent tempo-
rary” employees and the signatory to a contract for a unit that included
them, had a statutory obligation to apply to the “permanent temporary”
employees the contractual terms it had negotiated, to the extent that
those terms regulate the “permanent temporary” employees’ working
conditions under the Respondent’s control. See Gourmet Award
Foods, Northeast, 336 NLRB 872, 874 (2001), enfd. 2005 WL 23349
(D.C. Cir. 2005). Hence, the remedy for this violation is to require the
Respondent to apply the contract provisions to the “permanent tempo-
ORCHIDS PAPER PRODUCTS CO. 5
five “permanent temporary” employees,16 and violated
Section 8(a)(1) by informing employee Gann that the
“permanent temporary” employees had been discharged
because of the Union’s actions on their behalf.
AMENDED REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, we shall order it to cease and de-
sist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, we
amend the judge’s remedy in the following respects.17
The Respondent, having unilaterally changed employ-
ees’ health insurance, must make employees whole for
any losses they suffered as a result. The make-whole
remedy shall be computed in accordance with Ogle Pro-
tection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center,
356 NLRB 6 (2010).
In his remedy, the judge appears to have erroneously
determined that the Respondent was obligated to apply
the entire collective-bargaining agreement to the tempo-
rary employees. However, as discussed above, the Re-
spondent is only required to apply those provisions of the
agreement that regulate the terms and conditions of the

rary” employees as to those working conditions the Respondent con-
trols. See id. at 875.
We find it unnecessary to pass on the allegation that the Respondent
additionally violated Sec. 8(a)(5) and (1) by discharging the five “per-
manent temporary” employees without “just or reasonable cause” as
required by art. 6 of the parties’ agreement. Given that the Respondent
undoubtedly has control over whether to terminate the temporary em-
ployees’ assignments and that art, 6 applies to those employees, the
remedy for this violation would be subsumed by the remedy for our
more general finding.
Member McFerran would affirm the judge’s finding that the Re-
spondent violated Sec. 8(a)(5) and (1) when it terminated the employ-
ment of the five permanent temporary employees without “just or rea-
sonable cause” in violation of the parties’ agreement.
Members Kaplan and Emanuel note that no party excepts to the ap-
propriateness of the bargaining unit as a multi-employer unit, consisting
of both the Respondent’s solely employed employees as well as em-
ployees who are jointly employed by the Respondent and People
Source, without the Respondent’s and People Source’s consent. How-
ever, they believe the Board should reconsider the issue in a future
appropriate case.
16 Member Emanuel finds it unnecessary to pass on whether the dis-
charges also violated Sec. 8(a)(3) and (1) as finding the violation would
not materially affect the remedy.
17 We take administrative notice that the Union, General Counsel,
and People Source entered into an informal settlement agreement on
June 19. Any issues regarding the effect of that settlement, if any, on
the Respondent’s reinstatement and backpay obligations, and the Re-
spondent’s defenses to any reinstatement or backpay obligations, may
appropriately be addressed in compliance.
“permanent temporary” employees under its control.18
See Gourmet Award Foods, Northeast, 336 NLRB at
874-875. Because the matter of the Respondent’s control
was litigated only in general terms for the purpose of
evaluating its joint employer status, the record does not
permit a detailed determination of each contract provi-
sion that must, under this standard, be applied to the
“permanent temporary” employees. Any issues regard-
ing the Respondent’s control19 over specific working
conditions governed by particular contract provisions
will be resolved at the compliance stage of this proceed-
ing.20
We shall further modify the judge’s recommended Or-
der to conform to the violations found herein and the
Board’s standard remedial language. We shall substitute
a new notice to conform to the Order as modified.
ORDER
The National Labor Relations Board orders that the
Respondent, Orchids Paper Products Company, Pryor,
Oklahoma, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing to continue in effect the terms and condi-
tions of its 2012–2016 collective-bargaining agreement
with United Steel, Paper and Forestry, Rubber, Manufac-
turing, Energy, Allied Industrial and Service Workers
International Union, AFL–CIO (Union), by failing to
apply the provisions of its collective-bargaining agree-
ment pertaining to terms and conditions of employment
under the Respondent’s control to the “permanent tempo-
rary” employees supplied by People Source Staffing Pro-
fessionals, LLC performing work at the Respondent’s
Pryor, Oklahoma facility.

18 We observe that the Respondent made a blanket refusal to apply
any of the terms and conditions of the collective-bargaining agreement
to the “permanent temporary” employees despite having a statutory
duty to apply those contractual terms to the extent that they regulate
their working conditions under the Respondent’s control.
19 Member McFerran notes that for purposes of determining the ap-
propriate remedy all evidence of the Respondent’s control—direct,
indirect, and reserved—over the employees’ working conditions should
be evaluated. See Browning-Ferris, supra, at slip op. 16–17. Here, for
example, the existence of a cost-plus contract and its explicit delegation
of reserved authority to the Respondent to pay for holiday and vacation
pay (which it does offer employees according to its employee hand-
book) are indicia of the Respondent’s potential control over wages and
benefits. See id. at slip op. 13–17, 19.
20 To the extent the Respondent’s failure to apply particular contract
provisions to the “permanent temporary” employees resulted in their
cessation of employment, we order the same traditional remedies as
ordered to remedy the Respondent’s discriminatory discharge of the
five “permanent temporary” employees, including reinstatement and
make-whole relief, as set forth in the remedy section of the judge’s
decision as amended in this decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
(b) Failing to continue in effect the terms and condi-
tions of its 2012–2016 collective-bargaining agreement
with the Union by converting production lines six and
seven to “op-tech lines” without the Union’s consent.
(c) Changing the terms and conditions of employment
of its unit employees without first notifying the Union
and giving it an opportunity to bargain, including by im-
plementing a flame-resistant clothing policy and by
changing employees’ health insurance.
(d) Suspending, disciplining, or otherwise discriminat-
ing against employees for failing to comply with the uni-
laterally implemented flame-resistant clothing policy.
(e) Discharging or otherwise discriminating against
employees because the Union took actions on their be-
half.
(f) Threatening an employee with discipline for not
complying with the unilaterally implemented flame-
resistant clothing policy.
(g) Prohibiting employees from engaging in union or
other protected concerted activities, including by in-
structing an employee not to contact the Occupational
Safety and Health Administration unless management
had been informed first, prohibiting employees from
speaking or asking questions during employee meetings,
and accusing employees of harassment for engaging in
such activity.
(h) Prohibiting employees from discussing the Union
on the production floor or during work time while per-
mitting employees to discuss other nonwork-related sub-
jects.
(i) Telling employees that their union or other protect-
ed concerted activities are disrespectful to management.
(j) Creating the impression that it is engaged in sur-
veillance of its employees’ union or other protected con-
certed activities.
(k) Prohibiting employee union officials from con-
ducting union business on the production floor or during
work time while permitting employees to engage in
comparable discussions of other nonwork-related sub-
jects.
(l) Informing employees that other employees were
discharged because the Union acted on their behalf.
(m) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Apply the provisions of its 2012-2016 collective-
bargaining agreement that pertain to terms and condi-
tions of employment under its control to the “permanent
temporary” employees supplied by People Source Staff-
ing Professionals, LLC who perform work at its Pryor,
Oklahoma facility.
(b) Make the “permanent temporary” employees sup-
plied by People Source Staffing Professionals, LLC who
performed work at its Pryor, Oklahoma facility and the
Union whole for any loss of earnings and other benefits
suffered as a result of its failure to apply the provisions
of the 2012–2016 collective-bargaining agreement that
pertain to terms and conditions of employment under its
control, in the manner set forth in the remedy section of
the judge’s decision as amended in this decision.
(c) Continue in effect all the terms and conditions of
employment contained in its 2012–2016 collective-
bargaining agreement, or other applicable collective-
bargaining agreement, with the Union.
(d) On request of the Union, rescind the conversion of
production lines six and seven.
(e) Before implementing any changes in wages, hours,
or other terms and conditions of employment of unit em-
ployees, notify and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
employees in the following bargaining unit:
(f) The Respondent’s employees employed at its
Pryor, Oklahoma Converting facility with the exception
of executives, office, sales, clerical employees, profes-
sional employees, guards, watchmen, and supervisory
employees as defined in the Labor Management Rela-
tions Act of 1947, as amended.
(g) On request of the Union, rescind the unilaterally
implemented change to the employees’ health insurance.
(h) On request of the Union, rescind the unilaterally
implemented flame-resistant clothing policy.
(i) Make unit employees whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ful unilateral changes in terms and conditions of em-
ployment, in the manner set forth in the remedy section
of the judge’s decision as amended in this decision.
(j) Within 14 days from the date of this Order, offer
John Aguilar, Carrie Bunnell, Brandon Glory, Rebecca
Scott, and Jennifer Whisenhunt full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their sen-
iority or any other rights or privileges previously en-
joyed.
(k) Make John Aguilar, Carrie Bunnell, Brandon Glo-
ry, Rebecca Scott, and Jennifer Whisenhunt whole for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, in the manner set
forth in the remedy section of the judge’s decision as
amended in this decision.
(l) Make Michael Besley whole for any loss of earn-
ings and other benefits suffered as a result of the unlaw-
ORCHIDS PAPER PRODUCTS CO. 7
ful suspension and discipline against him, in the manner
set forth in the remedy section of the judge’s decision as
amended in this decision.
(m) Compensate Michael Besley, John Aguilar, Carrie
Bunnell, Brandon Glory, Rebecca Scott, and Jennifer
Whisenhunt for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and file with the
Regional Director for Region 14, within 21 days of the
date the amount of backpay is fixed, either by agreement
or Board order, a report allocating the backpay award to
the appropriate calendar year for each employee.
(n) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful suspen-
sion and discipline or unlawful discharges, and within 3
days thereafter, notify Michael Besley, John Aguilar,
Carrie Bunnell, Brandon Glory, Rebecca Scott, and Jen-
nifer Whisenhunt in writing that this has been done and
that the suspension and discipline or discharges will not
be used against them in any way.
(o) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(p) Within 14 days after service by the Region, post at
its Pryor, Oklahoma facility copies of the attached notice
marked “Appendix.”21 Copies of the notice, on forms
provided by the Regional Director for Region 14, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. If the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees

21 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-
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.”--
and former employees employed by the Respondent at
any time since March 22, 2016.
(q) Within 21 days after service by the Region, file
with the Regional Director for Region 14 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. November 20, 2018
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail to continue in effect the terms and
conditions of our 2012–2016 collective-bargaining
agreement with United Steel, Paper and Forestry, Rub-
ber, Manufacturing, Energy, Allied Industrial and Ser-
vice Workers International Union, AFL–CIO (Union), by
failing to apply the provisions of the collective-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
bargaining agreement pertaining to terms and conditions
of employment under our control to “permanent tempo-
rary” employees supplied by People Source Staffing Pro-
fessionals, LLC performing work at our Pryor, Oklaho-
ma facility.
WE WILL NOT fail to continue in effect the terms and
conditions of our 2012–2016 collective-bargaining
agreement with the Union by converting production lines
six and seven to “op-tech lines” without the Union’s con-
sent.
WE WILL NOT change the terms and conditions of em-
ployment of our unit employees without first notifying
the Union and giving it an opportunity to bargain, includ-
ing by implementing a flame-resistant clothing policy
and changing your health insurance.
WE WILL NOT suspend, discipline, or otherwise dis-
criminate against you for failing to comply with the uni-
laterally implemented flame-resistant clothing policy.
WE WILL NOT discharge or otherwise discriminate
against you because the Union took actions on your be-
half.
WE WILL NOT threaten you with discipline for not
complying with the unilaterally implemented flame-
resistant clothing policy.
WE WILL NOT prohibit you from engaging in union or
other protected concerted activities, including by in-
structing you not to contact the Occupational Safety and
Health Administration unless management had been in-
formed first, prohibiting you from speaking or asking
questions during employee meetings, and accusing you
of harassment for engaging in such activity.
WE WILL NOT prohibit you from discussing the Union
on the production floor or during work time while per-
mitting you to discuss other nonwork-related subjects.
WE WILL NOT tell you that your union or other protect-
ed concerted activities are disrespectful to management.
WE WILL NOT create the impression that we are en-
gaged in surveillance of your union or other protected
concerted activities.
WE WILL NOT prohibit union officials from conducting
union business on the production floor or during work
time while permitting you to engage in comparable dis-
cussions of other nonwork-related subjects.
WE WILL NOT inform you that other employees were
discharged because the Union acted on their behalf.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL apply the provisions of our 2012–2016 col-
lective-bargaining agreement that pertain to terms and
conditions of employment under our control to the “per-
manent temporary” employees supplied by People
Source Staffing Professionals, LLC who perform work at
our Pryor, Oklahoma facility.
WE WILL make the “permanent temporary” employees
supplied by People Source Staffing Professionals, LLC
who perform work at our Pryor, Oklahoma facility and
the Union whole for any loss of earnings and other bene-
fits resulting from our failure to apply the provisions of
the 2012–2016 collective-bargaining agreement that per-
tain to terms and conditions of employment under our
control, less any net interim earnings, plus interest, and
WE WILL also make such employees whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL continue in effect all the terms and condi-
tions of employment contained in the 2012–2016 collec-
tive-bargaining agreement, or other applicable collective-
bargaining agreement, with the Union.
WE WILL, on the Union’s request, rescind the conver-
sion of production lines six and seven.
WE WILL, before implementing any changes in wages,
hours, or other terms and conditions of employment of
unit employees, notify and, on request, bargain with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the following bargaining unit:
All employees employed by us at the Pryor, Oklahoma
Converting facility with the exception of executives,
office, sales, clerical employees, professional employ-
ees, guards, watchmen, and supervisory employees as
defined in the Labor Management Relations Act of
1947, as amended.
WE WILL, on the Union’s request, rescind the unilater-
ally implemented change to your health insurance.
WE WILL, on the Union’s request, rescind the unilater-
ally implemented flame-resistant clothing policy.
WE WILL make you whole, for any losses suffered by
reason of the unlawful unilateral changes in terms and
conditions of employment, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, offer John Aguilar, Carrie Bunnell, Brandon Glo-
ry, Rebecca Scott, and Jennifer Whisenhunt full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make John Aguilar, Carrie Bunnell, Brandon
Glory, Rebecca Scott, and Jennifer Whisenhunt whole
for any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus inter-
est, and WE WILL also make such employees whole for
reasonable search-for-work and interim employment
expenses, plus interest.
ORCHIDS PAPER PRODUCTS CO. 9
WE WILL make Michael Besley whole for any loss of
earnings and other benefits suffered as a result of our
unlawful suspension and discipline, plus interest.
WE WILL compensate Michael Besley, John Aguilar,
Carrie Bunnell, Brandon Glory, Rebecca Scott, and Jen-
nifer Whisenhunt for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and WE
WILL file with the Regional Director for Region 14, with-
in 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating
the backpay award to the appropriate calendar year for
each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful suspension and discipline or unlawful discharge of
Michael Besley, John Aguilar, Carrie Bunnell, Brandon
Glory, Rebecca Scott, and Jennifer Whisenhunt, and WE
WILL, within 3 days thereafter, notify each of them in
writing that this has been done and that the suspension
and discipline or discharge will not be used against them
in any way.
ORCHIDS PAPER PRODUCTS COMPANY
The Board’s decision can be found at
https://www.nlrb.gov/case/14-CA-184805 or by using
the QR code below. Alternatively, you can obtain a copy
of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washing-
ton, D.C. 20570, or by calling (202) 273-1940.
William LeMaster and Julie Covel, Esqs., for the General
Counsel.
Steven A. Broussard and Molly A. Aspan, Esqs., for the Re-
spondent.
Steven R. Hickman, Esq., for the Charging Party.
DECISION
I. STATEMENT OF THE CASE1
ANDREW S. GOLLIN, ADMINISTRATIVE LAW JUDGE. These
consolidated cases were tried before me on June 20−22, 2017,
in Tulsa, Oklahoma, following the issuance of an Amended
Fifth Consolidated Complaint and Notice of Hearing (the Com-
plaint) by the Regional Director for Region 14 of the National
Labor Relations Board (the Board) on June 19, 2017. The
Complaint was based on the above unfair labor practice charges
that the United Steel, Paper and Forestry, Rubber Manufactur-
ing, Energy, Allied Industrial and Service Workers Internation-
al Union, AFL−CIO (the Union) filed against Orchids Paper
Products Company (Respondent), between September 20, 2016
and June 2, 2017, alleging that Respondent violated Sections
8(a)(5), (3), and (1) and Section 8(d) of the National Labor
Relations Act (the Act).2 Respondent filed its Answer to the
Complaint, denying the alleged violations.
The Complaint alleges Respondent violated the Act when it:
(1) failed to apply the terms of the parties’ collective-
bargaining agreement to “temporary” employees after they
completed the contractual 60-day probationary period, without
the Union’s consent; (2) discharged temporary employees who
had completed their probationary period after the Union sought
to have them covered by the parties’ agreement; (3) unilaterally
withdrew from a verbal agreement to utilize temporary em-
ployees to perform non-production overtime work when not
enough unit employees volunteered to perform that work; (4)
failed to abide by the terms of the collective-bargaining agree-
ment by converting two existing production lines to “Op-Tech”
lines without the Union’s agreement; (5) unilaterally changed
health insurance carriers without bargaining with the Union
over the decision or its effects; (6) unilaterally implemented
clothing, shoe, and flame-resistant clothing policies without
bargaining with the Union over the decision or its effects; (7)
disciplined the local union president for violating the unilateral-
ly implemented flame-resistant clothing policy and other poli-
cies; (8) failed to abide by the terms collective-bargaining
agreement regarding when and where Union officials could
handle Union matters, without the Union’s consent; (9) unilat-
erally promulgated and maintained an overly broad rule prohib-
iting employees from talking to employees from other depart-
ments, except during non-work times; and (10) made various
statements that independently violated Section 8(a)(1) of the
Act.
At the hearing, all parties were afforded the right to call, ex-
amine, and cross-examine witnesses, present any relevant doc-

1 Abbreviations in this decision are as follows: “Tr.” for transcript;
“Jt. Exh.” for Joint Exhibits; “GC Exh.” for General Counsel’s Exhibit;
“CP Exh.” for Charging Party’s Exhibit; “R. Exh.” for Respondent’s
Exhibit; “GC Br.” for General Counsel’s brief; and “R. Br.” for Re-
spondent’s brief.
2 Previous versions of the complaint identified Orchid Paper Prod-
ucts and People Source Staffing Professionals, LLC (People Source) as
a joint employer respondent. On June 19, 2017, the Union, the General
Counsel, and People Source entered into an informal settlement agree-
ment resolving all allegations against People Source. The terms of that
settlement were not introduced into the record.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
umentary evidence, and argue their respective legal positions
orally. Respondent and General Counsel filed post-hearing
briefs, which I have carefully considered. Accordingly, based
upon the entire record, including the post-hearing briefs and my
observations of the credibility of the witnesses, I make the fol-
lowing3
II. FINDINGS OF FACT4
A. Jurisdiction
Respondent operates a paper mill and a converting facility in
Pryor, Oklahoma, where it has been engaged in the manufac-
ture and the nonretail sale of paper products, such as toilet pa-
per, paper towels, and napkins. In conducting its operations
during the 12-month period ending September 30, 2016, Re-
spondent sold and shipped from its Pryor, Oklahoma facility
goods valued in excess of $50,000 directly to points outside the
State of Oklahoma. Respondent admits, and I find, that it has
been an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act, and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act. Based on the foregoing, I find this dispute affects com-
merce and the Board has jurisdiction of these cases, pursuant to
Section 10(a) of the Act.
At all material times, these individuals were statutory super-
visors and agents for Respondent: Eric Diring (Vice President
of Operations), Brian Merryman (former Converting Plant Op-
erations Manager), Court Dooley (Site Manager), Doug Moss
(Human Resource Manager), Brad Blower (Process Specialist),
Jeff Cochrell (Process Specialist), Kelly Foss (Process Special-
ist), Kris Thorn (Safety Lead), Matt Rhodes (Maintenance
Lead), Richard Keith (Maintenance Planner), and Graham Dar-
by (Maintenance Engineering Manager).
B. Collective-Bargaining Relationship
The Union, through its local unions, represents employees at
Respondent’s paper mill and converting facility. Local 930
represents the approximately 85 employees at the paper mill.
Local 1480 represent the approximately 185 employees at the
converting facility. Each unit has its own collective-bargaining
agreement. The dispute largely concerns the employees at the
converting facility represented by Local 1480.
The collective-bargaining agreement at issue was in effect
from June 25, 2012, to June 25, 2016. In June 2016, the parties
entered into a six-month extension agreement, which included a
wage increase. Thereafter, the parties orally agreed to continue
all terms and conditions of the expired agreement until a new
agreement is reached. (Tr. 791−792.)
The following are some of the relevant provisions from the
agreement covering the converting facility:

3 On July 20, 2017, the parties filed a joint motion to correct exhib-
its in the record. After reviewing the exhibits at issue, I hereby grant
this joint motion. Additionally, the court reporting service issued an
amended transcript to include witness testimony was inadvertently
omitted from the original transcript.
4 Although I have included citations to the record to highlight partic-
ular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather on my review and
consideration of the entire record for this case.
ARTICLE 4
RECOGNITION
The Company recognizes the Union as the exclusive bargain-
ing agent in respect to wages, hours, and conditions of em-
ployment for the Company’s employees at its Pryor, Oklaho-
ma Converting facility with the exception of executives, of-
fice, sales, clerical employees, professional employees,
guards, watchmen, and supervisory employees as defined in
the Labor Management Relations Act of 1947, as amended.5
ARTICLE 6
MANAGEMENT RIGHTS
The Company has and shall retain the full right of manage-
ment, the direction of the work force, and its plant operations.
These management rights include, but are not limited to, the
right to plan, direct, control, increase, decrease, or discontinue
operations in whole or in part, to determine products to be
manufactured, processed, types of work or methods, to
change machinery and methods, facilities, introduce new
methods, processes, techniques, machinery and products; to
transfer, suspend, discipline or discharge for just and reasona-
ble cause; hire, promote, to add or reduce the number of
shifts, to determine the number of employees it shall employ
at any time and the qualifications necessary for any existing or
future jobs and to relieve employees from duties because of
lack of work or other legitimate reasons.
ARTICLE 8
GRIEVANCE PROCEDURE
section 5: There shall be no discrimination against any officer
or shop steward because of their having represented other
employees with management during regular working hours
on the plant premises. It is expected that the officers and/or
the shop steward will be away from their regular job assign-
ment as little as possible. It is understood that if union busi-
ness or investigation of grievances need to be conducted dur-
ing working hours, supervisory permission must be obtained
in any departments affected. When practical, the Company
and the Union will agree to conduct formal grievance meet-
ings during worktime when such meetings will not impact
production or work schedules. Such meetings shall be sched-
uled by the Company in all cases. Union representatives will
be paid at the regular rate of pay for all time spent in such
meetings.
ARTICLE 16
MOVEMENT OF PERSONNEL-BIDDING
section 3: In general, management will endeavor to fill vacan-
cies from qualified people within the bargaining unit. But,
where such people are not available, they will be hired from

5 Appendix A of the agreement contains job classifications and the
wage scale for each classification during the life of the agreement.
ORCHIDS PAPER PRODUCTS CO. 11
the outside.
. . .
Section 5: New employees and those hired after a break in
service shall be considered probationary employees for sixty
(60) days following their date of hire. The retention or dismis-
sal of probationary employee shall be in the sole judgment of
the Company. An employee who is retained in the employ of
the Company after the end of the probationary period shall be
given continuous service credit back to the date of hire.6
. . .
SECTION 7: The Company retains exclusive right to deter-
mine whom its employees shall be and from what source(s)
they will be chosen outside of the bargaining unit.
ARTICLE 24
GROUP INSURANCE/401(K)/DISABILITY
Section 1: It is agreed that the Company will furnish the fol-
lowing insurance to each employee upon completion of the
probationary period:
. . .
b. Medical/dental benefits: The company cannot guarantee
what type of coverage can be offered in the future. For that
reason types of health care will not be specified. The Compa-
ny will pay 80% and the employee will pay 20% of whatever
plan the employee chooses or is available.
ARTICLE 25
HEALTH, SAFETY, AND SANITATION
The Company shall make reasonable provisions for the
health, safety and sanitation of its employees during the hours
of their employment. The Company will cooperate with the
Union in investigating health, safety, and sanitary conditions
and will carefully consider any recommendations made by the
Union in respect thereto. The Union and the Company will
cooperate in assisting and maintaining the company’s rules
regarding health, safety, and sanitation.
ARTICLE 37
LINE 8 AND ANY NEW LINE
This language is to outline the operation and requirements to
staff a new line including hours of work, shifts, and pay
∙ Op-Techs will be expected to operate and conduct run-
ning maintenance on all pieces of equipment contained in the
new line (line 8). They will also use lifts to supply paper and
vitals to the line.

6 Respondent’s Employee Handbook also states employees will be
considered regular employees once they successfully complete their 60-
day probationary period. (GC Exh. 24).
. . .
∙ After the successful startup of the line, the company may
entertain the idea to expand this opportunity to line 7 and/or
line 6. The understanding is both parties will discuss and
must agree before expanding cell concept to existing lines.
(GC Exh. 2).
III. ALLEGED UNFAIR LABOR PRACTICES7
Respondent’s Use of Temporary Employees
1. Background
Respondent utilizes temporary employment agencies to pro-
vide manual labor to work at its converting facility. In Febru-
ary 2015, Respondent contracted with People Source Staffing
Professionals, LLC (People Source), a nationwide staffing
company, for this purpose. People Source recruits, interviews,
screens, hires, and sets the wages and benefits for the employ-
ees it refers out. When Respondent needs temporary employ-
ees, one of its supervisors will contact People Source with an
order containing the number of employees needed, the shift(s),
the start date, the type of assignment, and, at times, how long
the assignment is expected to last. Respondent can identify, by
name, who it wants People Source to refer out to fill the order.
(GC Exh 32.) If no one is identified, People Source will assign
based on qualifications.
Respondent typically uses these temporary employees to re-
move Display Ready Products (DRPs) of tissue paper or paper
towels from the conveyor lines and hand stack them onto pal-
lets to be shipped out to retail customers, or to clean, sweep,
and wipe down around the facility. Respondent also uses some
of the temporary employees to work on production lines or in
other areas of the facility, performing the same or similar tasks
as the unit employees.
The assignments can vary in length. Respondent can request
People Source provide temporary employees for a specific
project or period of time. Respondent, however, has converted
temporary employees to what are referred to as “permanent
temps.” (GC Exhs. 30−32.) These permanent temps receive the
same pay and benefits that they had been receiving as tempo-
rary employees. The key difference is that they are assigned to
a shift and a rotating schedule, and the assignment is for an

7 The following factual summary is a compilation of the credible
and uncontroverted testimony. To the extent that there is a critical
dispute in testimony, I have assessed the witnesses’ credibility consid-
ering a variety of factors, including the context of the witness' testimo-
ny, the witness' demeanor, corroboration, the weight of the respective
evidence, established or admitted facts, inherent probabilities, and
reasonable inferences that may be drawn from the record as a whole.
Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi
Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. sub nom., 56 Fed. Appx.
516 (D.C. Cir. 2003). Credibility findings need not be all-or-nothing
propositions. Indeed, nothing is more common in judicial decisions
than to believe some, but not all, of a witness' testimony. Daikichi
Sushi, supra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
indefinite period of time.8
People Source does not have supervisors at the converting
facility. The evidence is limited regarding who supervises the
temporary employees and what that supervision involves. The
two temporary employees who testified (Whisenhunt and Bun-
nell) both stated while they contacted People Source with ques-
tions or issues related to their employment, they received their
day-to-day work assignments and direction from lead people or
supervisors who worked for Orchids. (Tr. 155−156;163) (Tr.
169−170). Bunnell testified that her supervisor also supervised
Orchids employees. (Tr. 170.) Whisenhunt testified that her
Orchids supervisor informed her that she was being converted
to a permanent temp, and later informed her that Orchids had
ended her assignment. (Tr. 155−156.)
According to the evidence, if a temporary employee is going
to be absent because of an illness or an appointment, Orchids
has the choice of replacing the employee for the day, or perma-
nently. Similarly, if a temporary employee has attendance is-
sues, Orchids can end that employee’s assignment and have
People Source send a replacement. (GC Exhs. 32−33.)
The temporary employees record their time using a People
Source time clock located at the converting facility. Respond-
ent remits the time cards to People Source. People Source will
then total up the hours worked and send that information back
to Respondent for verification. Once verified, People Source
will complete the payroll process, and later invoice Respondent
for the hours worked.
2. Solicitation of authorization cards
Prior to the expiration of the collective-bargaining agreement
covering the employees at the converting facility, Union Staff
Representative Chad Vincent instructed Local 1480 Vice Presi-
dent Jason Gann to solicit employees to join the Union, in part
to get their input regarding the upcoming contract negotiations.
Gann went through the converting facility and talked with indi-
viduals, including those who had been referred by People
Source. Certain employees informed Gann that they could not
sign union authorization cards because they were temporary
employees. After speaking further with them, Gann learned
that some of these employees had worked at the converting
facility for more than 60 days, and some had been classified as
“permanent temps.” Gann later reported this to Vincent. Vin-
cent stated that, under the terms of the collective-bargaining
agreement, if the employees had worked for more than 60 days,
they were part of the unit and could sign an authorization card.
Gann then went back and obtained cards from five of these
“temporary” employees who had worked longer than 60 days.
Thereafter, in accordance with his normal practice, Gann took
the portions of the signed cards that authorized dues deduction
and left them in the company mailbox for “Stacey” the “payroll
lady” in the accounting department to process. (Tr. 268−269.)
Gann later found the cards in the Union’s mailbox with an un-
signed note stating the employees who signed the cards were
not in the computer system as Respondent’s employees. (Tr.
197−198.) Gann took no other action regarding the cards. (Tr.

8 Respondent’s production employees work either A, B, C, or D
shift. Each12-hour shift rotates 4 days on, 4 days off, 4 nights on, and
4 nights off. Permanent temps are assigned to one of these shifts.
280.)
3. August 4, 2016 meeting
On around August 4, 2016, Respondent and the Union were
scheduled to meet. Chad Vincent and Jason Gann were present
for the Union, along with Local 1480 President Michael Besley.
Site Manager Court Dooley and Operations Manager Brian
Merryman were present for the company. At the start of the
meeting, Vincent raised the topic of temporary employees,
stating that there were “temporary” employees at the converting
facility who had worked more than 60 days and not been given
the pay and benefits set forth in the parties’ collective-
bargaining agreement.9 Dooley responded that they were not
Orchid’s employees, and they were not performing unit work.
Dooley further stated that the company could get employees
from wherever they wanted. Vincent agreed that the Union had
no say in where the company got their employees, but when the
employee has been there for more than 60 days, he/she be-
comes covered under the terms of the agreement. (Tr. 48.) At
some point during this conversation, Vincent mentioned that he
had read the Board’s Browning-Ferris decision, which he stated
“discussed contract workers coming in and working at the facil-
ity, and they were able to join the union.” (Tr. 51.) Vincent
made reference to filing unfair labor practice charges if the
parties were not able to resolve the matter.
Dooley testified that after this meeting he and Merryman
were uncertain what the Union wanted Respondent to do re-
garding these temporary employees, so they made the decision
to suspend the use of all temporary labor until the matter was
resolved. Respondent contacted People Source to notify
them.10
Dooley later spoke with Gann and expressed the company’s
confusion about what the Union wanted the company to do
regarding the “temporary” employees. Gann later informed
Vincent. On August 12, 2016, Vincent sent Dooley an email,
stating:
I spoke with Jason Gann and he informed me that you had
some confusion as to the direction to go on probationary em-
ployees. I will give you a detailed explanation of how this is-
sue shall be resolved.
All employees that the company has hired through a hiring

9 The collective-bargaining agreement provides certain benefits to
nonprobationary employees. For example, a nonprobationary employ-
ee receives holiday pay (Article 14, sec. 2), is entitled military leave
(17), receives paid leave for jury duty (Article 20), and is eligible for
health benefits, accident and life insurance, and 401(k) plan participa-
tion (Article 24). (GC Exh. 2.)
10 The record is unclear when Respondent first notified People
Source that it was no longer going to use temporary employees. There
is an August 22, 2016 email from Brian Merryman to Melanie
McMains at People Source, which states: “The Union has filed a cease
and desist with regards to any temporary worker who works over 60
consecutive scheduled shifts. In the future all temps assigned to Or-
chids Paper must work no more than the 59 shifts in order to keep us
aligned with the collective bargaining agreement. Kelly [Foss] and
Brad [Blower] will continue to work with you, when we need tempo-
rary resources, to support our work force.” (GC Exh. 25.)
ORCHIDS PAPER PRODUCTS CO. 13
agency or off the street shall have the same sixty (60) day pro-
bationary period as defined in the CBA under Article 14 as well
as Article 16 section 5.
Any employees (sic.) that the company has hired that was
not made a permanent employee by the Company after the sixty
(60) day probationary period, shall be made a permanent em-
ployee.
These employees shall be given continuous service credit
back to the hire date as stated in Article 16, section 5.
All employees that have completed their sixty (60) day pro-
bation and did [not] receive the correct pay in accordance with
Appendix A, shall be back paid and made whole.
All employees that have completed their sixty (60) days pro-
bation and that did not receive holiday pay for holidays falling
after this time shall receive full payment of such and made
whole.
All employees that completed their sixty (60) days probation
and were eligible for insurance shall have insurance offered and
the Company shall be responsible for any medical bills during
this time frame that the company violated the CBA.
If at this time any employees [sic.] fits this criteria and are
laid off, shall be recalled before any attempt to hire any new
employees. These employees shall have seniority in accordance
with the Article 16, Section 5.
This should clear up any confusion that you had. If the com-
pany disagrees with this assessment please respond in writing,
if I received no response in writing I will conclude that we are
in agreement and these issues shall be resolved swiftly. (GC
Exh. 4.)
On August 16, 2016, Dooley responded with an email, stat-
ing, in pertinent part, that:
The company disagrees with your position on the temporary
contract workers. Below are the reasons for our position:
These workers are employees of the temporary staffing
agency, and not Orchids Paper, and therefore not covered by
the Collective-Bargaining Agreement (CBA). They were hired
by the agency, and never intended to be a full-time Orchids
Paper employees.
These individuals were not performing work as defined by
the job classifications in the Appendix A of the CBA. Work
assignment was provided to these workers by the temporary
staffing agency, not Orchids Paper. These individuals are also
paid by the temporary staffing agency for their work, not by
Orchids Paper.
These workers do not meet the Orchids Paper employment
criteria also. They were not vetted through the company’s
standard hiring process. They applied for and were hired by the
temporary staffing agency, not by Orchids Paper.
Article 6 and Article 16, section 7 of the CBA provide that
the Company has the exclusive right to determine whom its
employees shall be and what sources they will be chosen from
outside of the bargaining unit. (GC Exh. 5.)11

11 Respondent hires employees without going through a temporary
employment agency. There is no dispute that these employees are
required to take and pass certain tests before they are hired
On August 16, 2016, Gann filed a grievance on behalf of the
temporary employees who completed the 60-day probationary
period, requesting they be made whole per the collective-
bargaining agreement. (GC Exh. 10.) Vincent later made writ-
ten requests to Respondent for information concerning the tem-
porary employees. (GC Exhs. 6 and 8.) Dooley provided the
Union with information, but continued to insist that the tempo-
rary employees were not the company’s employees and not
covered by the agreement. (GC Exhs. 7 and 9.)
On August 24, 2016, Gann filed a second grievance alleging
Respondent should follow the contractual recall procedure and
call back the three “temporary” employees the company had
sent home after the August 4 meeting. (GC Exh. 11.) Gann
also had a conversation with Dooley about this. (Tr. 222.)
According to Gann, Dooley told him that the company got rid
of those temporary employees because the Union told the com-
pany to get rid of them. (Tr. 223.)
Alleged Verbal Agreement Regarding Non-Production
Overtime Work
After suspending use of the temporary employees, Respond-
ent still needed individuals to perform the work the temporary
employees had been performing. Respondent referred to this
work as non-production overtime work. Article 11 of the par-
ties’ agreement sets forth the process for distributing overtime
work. It states the company is to first seek volunteers to per-
form the work and award the work to the volunteers based on
seniority. If there are not enough volunteers, then the company
can draft employees to perform the overtime work based on
reverse seniority. (GC Exh. 2, pgs 6−7.)
In late August or early September, Dooley had a conversa-
tion with Gann about this work, and that the company would
have to utilize its own employees to perform it. Gann respond-
ed that he believed this was a bad idea because unit employees
were not going to respond well to being drafted to perform this
manual labor. Following this conversation, the company post-
ed a sign-up sheet for volunteers to perform this work, but no
one volunteered. Thereafter, the company began drafting em-
ployees to perform the work, in accordance with Article 11 of
the parties’ collective-bargaining agreement. (Tr. 818−819.)
Gann later met with Dooley and said the membership was
unhappy with the company drafting employees to perform this
work. Gann requested that the company start using temporary
employees again to perform this work. Dooley explained that
until this matter was cleared up between the company and the
Union, the company was going to follow the contract and con-
tinue to use its own employees. (Tr. 821−822.) Following this
conversation, Gann later met with Vice President of Operations
Eric Diring to discuss the matter (discussed below).12

12 The General Counsel alleges that Gann and Dooley reached a
verbal agreement in August 2016 that the company could post for vol-
unteers to perform this non-production overtime work, and, if there
were not enough volunteers, the company could use temporary employ-
ees. The General Counsel relies upon the testimony of Jason Gann to
establish this verbal agreement. (Tr. 215−216.) I, however, do not
credit Gann on this matter. His recollection of these conversations was
limited and he was unable to provide much detail. Additionally, I do
not believe that Dooley would have agreed to such an arrangement at
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
In September, the parties met on the grievances. On Sep-
tember 22, Eric Diring sent Chad Vincent a letter stating that
the company was willing to negotiate bringing the work per-
formed by temporary employees into the bargaining unit under
certain circumstances, and he explained what he believed those
circumstances should be. (GC Exh. 12.)
At some point, Diring met with Gann. They eventually
agreed that the company would first seek volunteers to perform
the nonproduction overtime work, and, if there were not enough
volunteers, the company would use temporary employees to
cover the rest of the work, on a week-by-week basis. (Tr. 221.)
On October 4, Dooley sent Vincent an email addressing the
agreement Diring and Gann had reached. (G.C. Exh. 13).
Thereafter, the company again began using temporary employ-
ees, but limited them to no more than 59 days. Dooley spoke
with Gann about this, and Gann did not object. (Tr. 823−824.)
Conversion of Lines 6 and 7 to Op-Tech Lines
1. Background
Respondent has several converting lines on the production
floor. Prior to the fall 2016, the first seven lines were standard
lines, and the rest were Op-Tech lines. A standard line is older
and operated by bid positions, such as a line coordinator, a back
tender, a machine operator, and possibly a core operator. Each
position has specific duties and responsibilities. Op-Tech lines
are high performance work systems. They are staffed by peo-
ple trained to run different parts of the line, with the eventual
goal that everyone on the line be cross-trained to perform all
jobs on the line.
As previously stated Article 37 of the parties’ agreement
states, in pertinent part, that: “After the successful startup of
[line 8], the company may entertain the idea to expand this
opportunity to line 7 and/or line 6. The understanding is both
parties will discuss and must agree before expanding cell con-
cept to existing lines.” (GC Exh. 2, pg. 29.)
2. Communications regarding converting lines 6 and 7 to Op-
Tech Lines
At the August 4 labor-management meeting, Brian Merry-
man raised that the company wanted to convert lines 6 and 7 to
Op-Tech lines. Vincent told Merryman to email him his pro-
posal. Merryman told Vincent that the company had already
engaged in large-scale capital projects to start converting the
lines. On October 7, 2016, Court Dooley sent Vincent an email
with the company’s proposal, noting that the timeline was cru-
cial to the start of the “new assets” on line 6. (GC Exh. 14.)
The proposal went through how the conversion of the two lines

the time, because the parties were disputing the status of these tempo-
rary employees, and I do not believe that Dooley would have verbally
agreed without involving Vincent, who was the one who raised con-
cerns about the temporary employees. Additionally, if Dooley had
agreed to the arrangement, then there would not have been a need for
Gann to go over Dooley’s head and request a meeting with Diring to
further discuss the issue. For these reasons, I do not find that there was
the alleged verbal agreement between Dooley and Gann regarding the
use of temporary employees to perform this non-production overtime
work. I, therefore, credit Dooley’s clearer and more plausible recollec-
tion regarding these conversations.
would work, as well as the handling/movement of unit person-
nel who did not want to work on an Op-Tech line. Vincent
reviewed the proposal and spoke to unit employees. On Octo-
ber 17, 2016, Vincent sent Dooley an email stating that “the
Union is not agreeable at this time of transitioning lines 6 & 7
to an Op-Tech system. The Union will gladly discuss during
negotiations.” (GC Exh. 15.) The following day, Dooley
emailed Vincent and informed him that upon reviewing the
contract language and interviewing past Union committee
members involved in the last contract negotiations, the matter
of transitioning the two lines to Op-Tech lines was already
negotiated and agreed upon by the Union. Dooley noted that
former union Officers Chris Montoya and Willa Wright, who
were involved in the prior contract negotiations, acknowledged
that the parties had previously negotiated and agreed to these
conversions, and that the company would transition lines 6 and
7 to the Op-Tech system, effective January 9, 2017.13 (G. Exh.
16.) That same day, Vincent responded to Dooley’s email,
stating that the Union’s position had not changed and it was not
in agreement to change to the Op-Tech lines at this time.
Dooley responded that, for the reasons previously given, the
company was moving forward with the transitioning of the two
lines. (GC Exh. 17.) Respondent eventually converted lines 6
and 7 to Op-Tech lines.
November 29, 2016 Conversation Between Dooley, Besley
and Reed
In the fall 2016, there was an effort to decertify the Union. In
late November 2016, Respondent received reports from em-
ployees that Local 1480 Recording Secretary Darla Reed was
harassing employees about this decertification effort, and she
was threatening to get employees fired if they signed the peti-
tion. At some point after Thanksgiving, Reed was called into
Court Dooley’s office about the accusations. Reed had Local
1480 President Michael Besley present as her union representa-
tive. Human Resource Manager Doug Moss was also present.
At this meeting, Dooley accused Reed of harassing employees
in the break room, telling them that she was going to get them
fired over the decertification petition. Dooley also accused
Reed of harassing another employee, who worked on a differ-
ent line than her, about the decertification petition. Reed de-
nied talking to any employee about the decertification petition.
Dooley then said there would be an investigation. (Tr.
302−303.)
At some point, Besley asked Dooley why it was okay for an-
other employee (Andrew Mason) to pass a decertification peti-
tion around on the floor and get signatures, and Reed was being
called into the office for harassment. Dooley answered that
they had put a stop to it and that Mason was no longer be get-
ting signatures on company time. Later, Dooley told Reed and
Besley that they could not talk Union business on the floor. It
had to be on their breaks. (Tr. 303.) Dooley did not refute this
testimony.

13 Dooley did not provide any specifics regarding his conversations
with Montoya or Wright on this topic. Respondent also did not call or
question Montoya or Wright about this alleged agreement. Absent this
evidence, I do not credit Dooley’s testimony that such an agreement
had been reached.
ORCHIDS PAPER PRODUCTS CO. 15
According to Reed and Besley, the past practice has been to
allow employees to discuss the Union on the production floor.
(Tr. 304) (Tr. 374). Both Reed and Besley also testified that
the company allowed employees to discuss other non-work
topics, such as sports and vacations, while on the production
floor, without the threat of discipline. (Tr. 304) (Tr. 378). This
testimony was unrefuted.
Reed never received any discipline for her alleged harass-
ment.
December 21, 2016 Conversation Between Blower, Foss
and Reed
Prior to Christmas 2016, Brad Blower and Kelly Foss ap-
proached Union Recording Secretary Darla Reed on the pro-
duction floor and asked her to come to the office. Reed asked
Darlene Russell, a Union steward, to come with her. When
they arrived at the office, Blower and Foss told Reed that they
had received reports she had been on the floor harassing people,
and that it needed to stop. They did not provide specifics re-
garding the alleged harassment. Reed did not say anything.
(Tr. 306−307.) Respondent did not issue her any discipline for
this alleged harassment.
December 2016 Changes to Health Insurance
After Doug Moss began working for Respondent as the Hu-
man Resource Manager in September 2016, he began reviewing
the company’s health insurance costs and learned that the com-
pany’s health insurance carrier, Community Care, was project-
ing cost increases of approximately 13-precent in the upcoming
year. Thereafter, Moss began researching other providers that
could provide comparable coverage at a lower cost. At some
point, Moss spoke with Michael Besley that he intended to look
into other health insurance providers because of the high costs,
and that he would get back to Besley when they were deciding
what to do (Tr. 394−395).
Moss eventually selected United Healthcare, which offered
plans comparable to the Community Care plan, but with lower
premiums, particularly for non-tobacco users. Due the timing
of the selection of this carrier in relation to the open enrollment
period for employees to elect coverage in order to have the
change effective January 1, 2017, Moss scheduled mandatory
meetings in December 2016, to inform employees about their
options so that they could select which United Healthcare plan
they wanted. A day or so before these meetings, Besley saw
Moss and told him that they needed to discuss the change.
Moss responded that the company was already moving forward
with it, they had already had the people coming, and they had
already changed over to the new carrier. The notice of these
mandatory meetings was the first notice Respondent provided
the Union that it was changing health insurance carriers.14 (Tr.
395−396.)

14 As far as coverage, copays, and prescription costs, the record is
unclear whether there were any actual changes. Two of the witnesses
(Gann and Besley) testified that there may have been changes in co-
pays and prescription costs, but they were not certain or could not pro-
vide specifics. Moss, in contrast, testified that there were no differ-
ences, except for one employee who had to pay more for a particular
prescription. Moss contacted the insurer and had that issue corrected.
(Tr. 778−780.)
January 25, 2017 Conversation Between Dooley and Gann
On around January 25, 2017, Jason Gann was called into a
meeting as a union representative for an employee, Gabriel
Cutler, who is being disciplined for being away from his work
area. Also present at the meeting were Bradley Blower, Doug
Moss, Gabriel Cutler, and Shelly (last name unknown). Re-
spondent claimed that Cutler, a machine operator, had left his
production line for over an hour and was found later outside.
There is a dispute as to whether or not Cutler had been away
from his production line for that length of time. In response,
Gann informed Blower that Eric Diring, the former plant man-
ager, once told employees during a meeting that he didn’t care
how long employees were gone or how many smoke breaks
they took, as long as somebody was in their spot running the
machine and there was no down time or reduced production.
(Tr. 239−240.) At the time of this January 2017 disciplinary
meeting, Diring had been promoted and moved to the corporate
offices in Nashville, Tennessee. In an effort to verify what he
was saying, Gann used the phone in the meeting room to call
Diring, and put him on speaker phone. Gann asked Diring if he
recalled the meeting in which he (Diring) said that he did not
care about employees being away from their work area as long
as someone was running the machine. Diring asked Gann what
this pertained to, and Gann said, “just answer my question.”
Diring responded, “Well, no, what does this pertain to?” Gann
then informed Diring about Cutler’s situation. Diring then
asked to talk to Blower. Blower then took the phone off speak-
er and spoke to Diring. Gann then turned to Cutler and said,
“See, they are all liars. That’s how they work.” (Tr. 241.) On
cross-examination, Gann acknowledged he may have referred
to them as “fucking liars.” (Tr. 273.) Blower told Gann to
“hush.” Diring then spoke to Moss on the phone. Following the
conversation, Moss spoke with Gann about resolving the issue,
possibly meeting the Union halfway and something. In the end,
Respondent reduced Cutler’s suspension to a warning.
Following the meeting, Gann went back to work. Approxi-
mately 15 or 20 minutes later, Court Dooley called Gann to his
office and told him to bring representation. Gann then went to
Dooley’s office with John Stafford, Gann’s lead man, as his
representation. Stafford and Gann arrived at Dooley’s office.
Doug Moss was also present. Dooley told Gann that he did not
like the way that Gann had treated his management (during the
meeting) and that Gann was not to talk to his management that
way. Gann responded that he was a Union officer and “when I
am in the office, we are equal, and if they raise their voice at
me, and they get smart with me, I can do the same back.” (Tr.
244.) Dooley did not respond to the statement.
At some point during this meeting, Dooley said to Gann, “I
just want to let you know that people are reporting to me saying
you are doing Union business on company time.” Gann then
asked, “Are you saying you are having me watched?” Dooley
responded, “No, I am not having you watched. I am just letting
you know that people have been reporting that you have been
doing Union business on company time.” (Tr. 245.) Dooley
then asked Gann if he had let anybody know, supervisor or
anybody, when he leaves his work station. Dooley referenced
an incident where it had been reported to him that Gann had left
his work station and was talking to Darla Reed. Gann respond-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
ed that he had done that, and that he had let his lead know.
Gann informed Dooley that Stafford was his lead man, and that
Dooley could confirm what Gann was saying by asking Staf-
ford. Stafford confirmed that when Gann leaves his work sta-
tion he tells him where he is going and what he is doing.
Dooley told Gann to just be sure and let somebody know when-
ever he leaves his work station. (Tr. 246.)
Conversations Between Blower, Foss, and Montoya
On around February 6, 2017, Chris Montoya, a Union stew-
ard, was working in the warehouse. At around 1 or 2 p.m.,
Montoya was approached by Brad Blower and Kelly Foss.
They told Montoya that they had received reports that he was
harassing people.15 They did not provide him with any details.
Montoya said, “Well, let’s go find out who these people are.”
Blower or Foss told him that was confidential. Montoya was
frustrated and said that he wanted to go and talk with the CEO
(Jeff Schoen), and he started walking toward the door to go to
the CEO’s office. (Tr. 288−289.) Montoya did not go and
speak to Schoen.
The following day, Darla Reed approached Montoya and
told him that Foss and Blower wanted to see him. Reed and
Montoya then went to the office to meet with Foss and Blower.
Blower or Foss told Montoya that the way that he talked to
them when they approached him the day before was unaccepta-
ble, and that if he did it again, he would be walked out. (Tr.
290) (Tr. 312). Foss and Blower took what Montoya said about
going to the CEO as a threat. (Tr. 312.) Montoya was not is-
sued anything in writing. Respondent did not question Blower
or Foss regarding this second conversation.
Conversation Between Blower, Foss, and Reed
On around February 6, 2017, Darla Reed was working in the
warehouse when an employee, Darlene Russell, approached her
and asked her to come with her to the front office to help her
address an attendance issue. Reed and Russell walked from the
warehouse through the production floor to the office. On their
way, Brad Blower and Kelly Foss stopped Reed and told her
that they had reports that she had been harassing employees on
the production floor. Reed said she had not, and that she had
been in the warehouse all day working. Blower and Foss again
told her she had been harassing employees on the production
floor. They, however, did not provide any details. No further
action was taken.
Conversation Between Dooley, Moss, and Montoya
On around February 8, 2017, Chris Montoya was called into
a meeting with Court Dooley and Doug Moss. Darla Reed also
attended this meeting as Montoya’s Union representative. In
this meeting, Dooley accused Montoya of leaving his line to go
and threaten another employee’s family member over the de-
certification effort. Dooley asked Montoya for his version of
what happened, and Montoya provided his version. He
acknowledged leaving his work area but denied threatening the
employee. Dooley or Moss then said to Montoya that he was to

15 One of the employees responsible for the decertification effort was
Andrew Mason. Montoya approached Mason’s wife, who also worked
at the converting facility, and indicated that Mason should cease his
activities, and Montoya impliedly threatened her family if he did not.
stay on his line and not leave his work area, except for when
going on break. (Tr. 317.) Moss’s notes reflect that Dooley
explained to those at the meeting that Union activities were
limited to non-work time and non-work areas. (Tr. 761−764)
(Jt. Exh. 38.) Dooley informed Montoya that he was being
suspended pending the outcome of the investigation. Montoya
was later discharged for threatening the other employee.
Announced Policy Prohibiting Employees from Talking to
Employees in Other Departments (7(a) and 15(a))
In addition to the various statements to Union officers and
agents, on around February 8, 2017, Kelly Foss approached
Darla Reed while she was working on the production floor.
Foss told her that they were not allowed to go to any other line,
or to leave their lines. He told her that they were to just stay on
their lines, and they could not go to any other line to talk to any
of the other people. (Tr. 319.) Reed then saw Foss go and
speak to other employees on the other lines. Respondent did
not question Foss about this at the hearing.
New Shoe Policy, Clothing Policy and Flame-Resistant Cloth-
ing (FRC) Policies Shoe and Clothing Policies
In December 2016, an inspector from the Occupational Safe-
ty and Health Administration (OSHA) came to Respondent’s
facility in response to complaints of unsafe working conditions.
Union representative Darla Reed and members of management
were present during the inspection. OSHA later issued Re-
spondent a Notice of Alleged Safety or Health Hazards, which
identified various hazards, including, but not limited to, that the
maintenance and production employees were not adequately
trained on electrical safety work practices, lacked proper per-
sonal protective equipment (PPE) for electrical work, and that
the overall PPE hazard assessment was not in compliance. The
OSHA inspector returned to the facility in February 2017 for an
additional inspection on the production floor. Again, Union
representative Darla Reed and members of management were
present. On February 23, 2017, OSHA issued Respondent a
citation and assessed penalties for certain infractions. One of
the infractions was that Respondent did not have a hazard as-
sessment performed in the workplace. On March 13, 2017,
after receiving the citation, representatives from the company
and one representative from the Union (Darlene Russell) had
telephone conference call with the OSHA representative re-
garding abatement and lowering the fine. Respondent later
entered into a settlement agreement to address the infractions
and reduce the penalties, which included having a hazard as-
sessment done by a third party. Respondent later requested and
was granted a 30-day extension from OSHA, giving Respond-
ent until April 28, 2017, to be in compliance.
On March 22, 2017, Daniel Shaw, a third-party safety coor-
dinator, arrived at Respondent’s facility to conduct a hazard
assessment. Shaw later issued a written report addressing sev-
eral topics, including PPE. Thereafter, based on the assess-
ment, Respondent, through Doug Moss, Court Dooley, and
Respondent’s Safety Lead Kris Thom drafted new clothing and
shoe policies, and then held mandatory meetings for employees
regarding these policies in late March and early April 2017.
The shoe policy required that employees and all individuals
who entered the facility wear steel or composite toed shoes or
ORCHIDS PAPER PRODUCTS CO. 17
boots. Employees would be reimbursed up to $120 for pur-
chasing these shoes or boots. The clothing policy required
employees to wear short or long-sleeved shirts and jeans or
khaki pants. Employees could no longer wear shorts, dresses,
scrub tops or bottoms, spandex or lycra clothing, shirts with
cutoff sleeves, hooded sweatshirts, sweatpants, etc. Respond-
ent also required that production employees wear safety glasses
and hearing protection.
On around April 5, 2017, the Union requested to bargain
over the “new dress code.” (GC Exh. 23.) The parties were
already scheduled to meet for contract negotiations on April 12
at nearby Rogers State University, so they agreed to meet at
that end of that bargaining session to discuss the new dress
code. At this April 12 meeting, Vincent, Besley, Gann, and
Reed were present for the Union. Dooley, Moss, and Thom
were present for Respondent. There also were unit employees
from the mill at this meeting. Thom went through the hazard
assessments and the policies, and then answered questions.
The mill employees raised questions about no longer being able
to wear hoodie sweatshirts. The converting employees raised
questions about no longer being able to wear shorts or leggings.
Thom explained the reasons for the changes, including past
incidents and safety risks. There was further discussion, and
the Respondent agreed to provide employees with shirts, a
sweatshirt, and a jacket.
On April 20, 2017, Moss sent Vincent an email asking
whether the Union had any response to their meeting regarding
the new PPE/dress code policies, noting that the rollout date for
the policies was April 28, 2017. On April 25, 2017, Moss sent
Vincent an email confirming that Respondent would be provid-
ing employees with four short-sleeved T-shirts, one sweatshirt,
and a jacket with a tear-off safety hood for those employees
who routinely worked outside. On April 27, 2017, Vincent
replied that the Union would accept the company’s offer as
presented without waiving its right to grieve, bargain, or dis-
cuss any issues regarding the implementation of the
PPE/clothing policy. Respondent implemented both the cloth-
ing and shoe policies, effective April 28, 2017.
FRC Policy
Respondent has electrical cabinets that power machines at its
converting facility. The unit maintenance technicians repair
and maintain these electrical cabinets. National Fire Protection
Association (NFPA) 70E requires an arc flash analysis to be
performed on energized electrical systems, like the electrical
cabinets. This analysis is to be conducted to determine the arc
flash protection boundary and the required PPE for people to
wear when within the boundary.
In August 2016, Chad Vincent had a meeting with Court
Dooley and Brian Merryman in which Vincent raised concerns
that Respondent was not compliant with NFPA 70E, and that
Respondent should get compliant. Approximately a month
later, Respondent contracted with a third party to conduct an
arc flash study. The study took several weeks to complete.
While the study was being completed, Respondent’s Mainte-
nance Engineering Manager Graham Darby, who has experi-
ence with arc flash studies and the PPE, anticipated the results
of the study and took steps to order arc flash rated protective
clothing, helmets, and gloves for the maintenance technicians.
Respondent contracted with Cintas to measure the technicians
and provide the flame-resistant (FR) protective clothing. In
around February or March 2017, Cintas came and began fitting
the maintenance employees, including Local 1480 President
Michael Besley, for their FR shirt and pants. Darby then had
meetings with the maintenance employees regarding their FR
clothing.
At the April 12, 2017 bargaining session at Rogers State
University, the parties discussed the FR clothing. The Union
asked whether the maintenance employees would need to wear
their FR clothing all the time, and Dooley responded that he did
not see why they would need to wear it other than when they
were working near the electrical cabinets. There was no other
discussion regarding this.
The employees received their clothing in early May 2017.
Darby informed the maintenance employees that they should
begin wearing their protective clothing, but that the company
would not begin enforcing the policy until June 1, 2017.
Thereafter, most of the employees began wearing their FR
clothing.
At around this time, employees were asking Besley whether
they needed to wear their FR clothing at all times, because they
were being told that they did. On around May 6, 2017, Besley
had a conversation with Matt Rhodes. Besley asked Rhodes if
maintenance employees had to wear the FR clothing all the
time. Rhodes responded, “No. You can have the shirt ready
with your helmet.” (Tr. 405−406.) Thereafter, Besley spoke
with Darby about it. Darby informed Besley that he expected
the maintenance employees to be wearing their FR clothing at
all times. Respondent’s FRC policy, which was finalized on
May 23, 2017, states that maintenance employees are to wear
FR clothing at all times while on duty. (Jt. Exh. 11.)
Conversation Between Moss and Reed
On around April 20, 2017, Respondent held meetings with
employees to discuss the new safety clothing and shoe policies.
Kris Thom and Doug Moss held such a meeting that was at-
tended by the “B” crew. Darla Reed attended this meeting. In
the course of the meeting, Moss and Thom talked about the
personal protective equipment and clothing employees needed
to wear. Employees were going to need to start wearing jeans
to work, and they could no longer wear shorts or capris pants.
Toward the end of the meeting, Reed spoke up and asked Moss
and Thom if they were going to come down on the production
floor and work with the production employees in 110-degree
heat, in jeans. There was reference to the air conditioning out
on the production floor, and Reed stated that air conditioning
unit was “not worth shit.” (Tr. 337−338.) Reed also used the
term “bullshit.” At that point, Moss called an end to the meet-
ing. (Tr. 326−327.)
Approximately 30 minutes later, Reed was summoned to the
office. Reed had Darlene Russell accompany her as her Union
representative. According to Reed, when they arrived at the
office, Doug Moss and Kelly Foss were present. Moss began
by accusing Reed of singling him out during the meeting. Reed
denied singling Moss out. She told him that she asked if they
all were going to come out on the floor in that 110-degree
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
weather and work with the employees in blue jeans. According
to Reed, Moss then said to her that from here on out, if she had
anything to say, she was to say it before the meeting or after the
meeting, and she could not say anything during the meeting.
(Tr. 329.) Russell did not testify at the hearing.
According to Moss, he told Reed and Russell that “if they
had objections to the policies and they felt that strongly about
it, if they wanted to cuss me or raise their voice at me to do so
before the meeting or after the meeting in my office or in some
other office but not to conduct themselves that way in a compa-
ny meeting.” (Tr. 787.)
Conversation Between Cochrell and Besley
On around May 5, 2017, Local 1480 President Michael Bes-
ley was working, performing maintenance on a machine near
line 2, when a unit employee, Shawn Teiger approached to
discuss his points under the company’s attendance policy.
Besley spoke with Teiger for a few minutes and said he would
look into it later. Besley then walked away. Jeff Cochrell then
walked up to Teiger, said something, and then walked away.
Teiger then approached Besley to tell him that Cochrell said
that they could not do union business on the floor on company
time. Besley then walked over to Cochrell and told him that he
could not tell them not to do union business on the floor.
Cochrell replied that he was new and did not know that they
could do union business on the floor. No further action was
taken regarding this incident. (Tr. 384-385.)
Conversations Between Management and Besley
Related to PPE
On around May 5, 2017, Graham Darby approached Michael
Besley and asked where his safety glasses were. Besley, who
wears glasses, stated that he was unaware that he had to wear
safety glasses. Darby told Besley to follow him into his office.
The two went into Darby’s office, and Darby told Besley that
he needed to be wearing side shields with his glasses, and he
gave Besley some side shields. Darby said that employees
were supposed to be wearing safety glasses all the time, and
that he (Besley) had been told three times that day to wear
them. Besley asked Darby who had allegedly told him to wear
safety glasses that day, and Darby said he did not have that
information. Besley said that he would wear the safety glass-
es/shields. He put on the side shields and then left Darby’s
office. A few minutes after leaving Darby’s office, Court
Dooley saw Besley and asked him to come into the office.
Besley went into Dooley’s office. Dooley then said that Besley
had been told three times that day about wearing safety glasses.
Besley asked Dooley who had told him three times to wear the
safety glasses, and Dooley could not name them.
According to Besley, Dooley then told him that because he
was the Union President, he was held to a higher standard and
that he should be a role model for the others. (Tr. 423−425.)
According to Dooley, he explained to Besley that the two of
them were both leaders at the facility, and he wanted Besley’s
help with these new safety policies and procedures and practic-
es that the company was implementing because they were being
implemented for the employees’ safety. Dooley stated that he
was basically pleading with Besley as a leader of the Union to
help with this process. (Tr. 833−834.) I am crediting Dooley’s
recollection over Besley. At times, Besley had poor or limited
recall of conversations. He also had a tendency to paraphrase
conversations or testify about what his overall impression was
from a conversation, as opposed to actually what was said. I
find this to be one of those situations.
On around May 6, 2017, Besley had a conversation with
Matt Rhodes. In this conversation, Besley asked Rhodes if the
maintenance employees had to wear the FR clothing all the
time. Rhodes responded, “No. You can have the shirt ready
with your helmet.”
On May 7, 2017, Besley attended the pre-shift maintenance
meeting.16 He was wearing his street clothes to this meeting.
After the meeting, he went to get a laptop to use for the day.
As he did, he was approached by Richard Keith, who asked him
where his FR clothing was. Besley responded that it was in his
locker. Keith asked him, “Aren’t you going to put them on?”
Besley said, “I didn’t know we needed to.” Keith then told
Besley to come into his office. The two went into the office
and closed the door. Matt Rhodes was in the office. Rhodes
asked Besley if he wanted to have union representation. Besley
said he did and he went out and got Cory Pendleton, a junior
mechanic, to come into the office. When Pendleton came into
the office, Rhodes asked him, “You’re not – are you in the
union?” Pendleton said no. Rhodes then asked Besley, “Can
he still represent you?” Besley responded, “I don’t know why
he couldn’t.” But then Besley recalled that Jason Gann was
there, so he called Gann on the radio and asked him to come up
the office. Gann eventually arrived, and then Pendleton left.
After Gann arrived, Rhodes told Besley that if he did not put
his uniform on that they were told by Darby to suspend Besley
until further investigation. Besley asked Rhodes about their
conversation the previous day when Rhodes had said that the
employees did not have to wear their FR clothing all the time.
Rhodes responded that he was misinformed. Rhodes reiterated
“If you refuse to put your uniform on, we’ll have to suspend
you.” Gann and Besley had a conversation, and Besley agreed
to go and put on his FR clothing, because he did not want to
leave the three junior mechanics working that day to work the
shift alone. Besley then left to put on the FR clothing and
walked by the supervisor’s office to show them that he was
fully dressed.
Because of schedule rotations, Besley next worked the night
shift on around May 15, 2017. He arrived late to work that day,
so he was unable to change into his FR clothing before the start
of the pre-shift meeting. Matt Rhodes and Richard Keith
came into the meeting. After the meeting got over, they asked
Besley to stay over. They informed Besley that he had been
warned before about not showing up in his FR clothing, and
that they were going to have to suspend him. They took his
access badge and then walked him out of the facility.
On around May 23, 2017, following his return from the sus-

16 A shift change meeting is where the previous shift and the new
shift coming on meet and talk about outstanding work orders and any
issues that they have as a team. If there are work orders still open
because the prior shift did not get a job completed, it is assigned to
someone to continue that job. The maintenance employee is given the
work order number.
ORCHIDS PAPER PRODUCTS CO. 19
pension, Besley was called into a meeting with Graham Darby,
Doug Moss, and Jason Gann. Darby spoke with Besley about
the clothing policies and gave him copies of the written poli-
cies. Darby reiterated that Besley needed to wear his FR cloth-
ing all the time (i.e., the steel-toed shoes, the FR pants, and the
FR shirt). Darby then spoke with Besley about CMMS (Com-
puter Maintenance Management System), which is a software
program that maintenance employees have on their laptops to
track work orders and productivity. There is no dispute that
Besley was failing to properly log his time and work orders.
There also was a discussion about Besley’s alleged failure to
escalate maintenance issues, which is the reporting process
maintenance employees are to follow if they are unable to re-
solve a maintenance issue in a timely manner. Darby issued
Besley a written warning for refusing to wear PPE as directed
by company management; continuing to improperly utilize the
CMMS system to correctly track his work orders and produc-
tivity (despite recent training); and failing to follow proper
escalation procedures concerning when a maintenance techni-
cian is required to notify a supervisor if he is unable to resolve
a maintenance issue within a certain period of time.
At the hearing, Respondent introduced witness statements
and reports regarding these issues. This evidence reflects that
Besley was frequently away from his work area or not perform-
ing or not logging in his work into CMMS. This was a
longstanding and relatively frequent issue. The same is true
regarding Besley’s failure to follow the escalation procedures
regarding equipment. Besley was disciplined in June 2016 for
failing to escalate a maintenance issue. But there was no disci-
pline issued until the May 23, 2017 written warning.
The FR clothing, particularly the pants, ran long in order to
make sure the necessary areas were covered. Besley rolled up
his pants so he was not walking on the cuffs. On around May
25, 2017, Besley was called into a meeting with Doug Moss,
Graham Darby, Richard Keith, and Matt Rhodes. Darby began
by telling Besley that he needed to unroll his pants and wear
them down. Besley stated that the pants were too long and that
he was walking on them. Darby told him that he needed to
wear them down. Besley asked questions about needing to
have the pants rolled down. Besley stated how he had talked
with other employees about the length of their FR pants. Moss
then asked Besley why he was “beating the pants thing to death
asking people about them.” Besley said it was because he was
the Union president and people were coming to him with ques-
tions. (Tr. 466−470.)
At some point during this conversation, the topic turned to
OSHA. According to Besley, he had made a statement about
contacting OSHA, and Moss said, “Don’t be calling OSHA on
us.” Moss denied telling Besley not to call OSHA. Rather,
Moss testified that he told Besley, "When there is a safety issue
in the plant, the fastest way to get it fixed is to come to -- go to
KrisThom, our safety manager; contact Court, contact Graham
Darby, our maintenance manager; or come get me. Let us as a
company address these issues immediately. If we don't respond
or if we don't do what we're supposed to do, then by all means
contact OSHA.”
IV. LEGAL ANALYSIS
A. Respondent’s Handling of “Temporary” Employees
1. Allegations and arguments
The complaint contains several allegations surrounding Re-
spondent’s handling of the “temporary” employees referred by
People Source who worked at the converting facility for more
than 60 days. Paragraph 13 of the complaint alleges that Re-
spondent violated Sections 8(a)(5) and (1) and 8(d) of the Act
when it failed to continue in effect all the terms and conditions
of the parties’ collective-bargaining agreement, without the
Union’s consent, by employing these employees for more than
60 days without giving them credit for their continuous service
from their date of hire and without applying the terms of the
agreement to determine their wages and other terms and condi-
tions of employment. Paragraph 13 also alleges that Respond-
ent violated Sections 8(a)(5) and (1) of the Act (on the respec-
tive dates) when it failed to bargain with the Union before dis-
charging the following five employees who all worked at the
converting facility for more than 60 days: Carrie Bunnell (Au-
gust 8, 2016), Rebecca Scott (August 14, 2016), John Aguilar
(August 10, 2016), Brandon Glory (September 9, 2016), and
Jennifer Whisenhunt (September 11, 2016). Paragraph 8(a) of
the complaint alleges Respondent also violated Section 8(a)(3)
and (1) of the Act when it discharged these individuals because
the Union pursued their inclusion in the bargaining unit and
demanded that Respondent apply the terms of the collective-
bargaining agreement to them, and to discourage the Union and
employees from engaging in these and other union activities.
The General Counsel contends that Article 16, Section 5 of
the parties’ agreement states that employees retained after the
end of the 60-day probationary period shall be given continuous
service credit back to the date of hire. Yet, Respondent failed
to follow the parties’ agreement when it did not convert “tem-
porary” employees John Aguilar, Carrie Bunnell, Brandon Glo-
ry, Rebecca Scott, and Jennifer Whisenhunt, who there is no
dispute all worked at Respondent’s converting facility for more
than 60 days. The General Counsel also asserts that Respond-
ent discriminated or retaliated when it informed People’s
Source that these individuals were no longer needed only after
the Union claimed that they were unit employees covered by
the parties’ agreement because they had completed their proba-
tionary period.
Respondent denies these allegations, arguing that each is
premised on an assumption that these employees referred by
People Source were also employees of Respondent. Respond-
ent argues that the employees at issue were not employees of
Respondent, regardless of how long they worked at Respond-
ent’s converting facility, because Respondent and People
Source are not joint employers. Furthermore, even if they were
considered Respondent’s employees, Respondent did not vio-
late Section 8(a)(3) and (1) of the Act because there is no evi-
dence that it knew the employees engaged in protected concert-
ed or union activities, and there is no evidence of discriminato-
ry animus. Additionally, Respondent contends that it had no
obligation to bargain with the Union over a decision that had no
impact on the bargaining unit, and, even if it did, Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
did bargain in good faith when it met with the Union.
2. Joint-employer relationship
The first issue to be resolved is whether Respondent and
People Source were joint employers of the temporary employ-
ees assigned to the converting facility. In BFI Newby Island
Recyclery, 362 NLRB No. 186 (2015), the Board revised the
joint employer standard. Prior to BFI, joint employer status
existed where “two separate entities share or codetermine those
matters governing the essential terms and conditions of em-
ployment.” See TLI, Inc., 271 NLRB 789 (1984), Laerco
Transportation, 269 NLRB 324 (1984). The level of control
needed to be “direct and immediate” as to employment actions
such as hiring, firing, discipline, supervision, and direction.
See, e.g., Airborne Freight Co., 338 NLRB 597 (2002). In BFI,
the Board adopted a two-part test to determine if there was a
joint employer relationship. The Board held that “the initial
inquiry is whether there is a common-law employment relation-
ship with the employees in question.” BFI, 362 NLRB No. 186,
at slip op. 2 (2015). If the common-law employment relation-
ship exists, then the inquiry turns to “whether the putative joint
employer possesses sufficient control over employee’s essential
terms and conditions of employment to permit meaningful col-
lective bargaining.” Id. The Board no longer requires that a
joint employer possess and exercise the authority to control
employees’ terms and conditions. Rather, the Board held that
“control” can now be direct, indirect, or even a reserved right to
control, whether or not that right is ever exercised. Additional-
ly, in defining essential terms and conditions of employment,
the Board held it includes not only hiring, firing, discipline,
supervision, direction, and determining wages and hours, but it
also includes dictating the number of workers to be supplied,
controlling scheduling, seniority, overtime, and assigning work
and determining the manner and method of how work is to be
performed. Id. The Board noted that the burden of proving
joint-employer status rests with the party asserting that relation-
ship. Id.
Based on the evidence, I find that the General Counsel has
presented sufficient evidence to establish that Respondent and
People Source were joint employers over the temporary em-
ployees referred to work at the converting facility. As previ-
ously stated when Respondent requires temporary employees,
one of its supervisors submits a work order to People Source
that identifies the number of employees needed, where they
will be needed (e.g., an identified production line or area of the
facility), what shift they will be working, and, at times, how
long the assignment will last. Respondent can identify, by
name, who it wants People Source to refer out to fill the order.
Once assigned, Respondent can convert a temporary employee
to a “permanent temp.” The means the individual is assigned to
work on the A, B, C, or D shift, with the unit employees, for an
indefinite period of time.
Respondent also can terminate a temporary employee’s as-
signment. For example, if a temporary employee is unable to
work a shift because of an illness or appointment, Respondent
can replace the employee for the day, or replace him/her per-
manently. Additionally, if an employee has attendance issues,
such as failing to report for work or leaving early, Respondent
can inform People Source to end the assignment and send a
replacement. There is no dispute that Respondent contacted
People Source to terminate the assignments of all the perma-
nent temps working at the converting facility following the
August 4 meeting. Also, there is no dispute that Respondent
notified People Source that, in the future, assignments could not
last longer than 59 days.
People Source has no supervisors or managers working at
Respondent’s converting facility. The only onsite supervisors
or lead people are those who work for Respondent. The evi-
dence is limited regarding who supervises the temporary em-
ployees and what that supervision involves. However, the two
temporary employees who testified (Whisenhunt and Bunnell)
both stated that they were given their work assignments and
direction from lead people or supervisors who worked for Re-
spondent. Bunnell testified that the person who supervised her
also supervised Orchids employees. Whisenhunt testified that
her Orchids supervisor was the individual who informed her
that she was being converted to a permanent temp, and later
informed her that Respondent was ending her assignment.
Finally, Respondent is involved in the temporary employees
being paid. As previously stated, the temporary employees
assigned to the converting facility record their time using a
People Source time clock. Respondent gathers and remits the
time cards to People Source for processing. People Source
calculates the hours worked and then sends the totals back to
Respondent to verify that the employees worked the hours
listed. Once verified, People Source then completes the payroll
process, including issuing the paychecks.
Based on the foregoing, I find that Respondent and People
Source are joint employers because they directly codetermine
the essential terms and conditions of employment for these
temporary employees.
3. Failure to adhere to contract and discriminatory termination
of assignment
As a joint employer, Respondent had an obligation to apply
the terms of the agreement to those who fall within the bargain-
ing unit. Gourmet Award Foods, 336 NLRB 872, 874 (2001).17
The General Counsel alleges Respondent failed to abide by the
terms of the parties’ agreement regarding its handling of these
temporary employees who worked at the converting facility for
more than 60 days. Per Article 16, section 5 of the parties’
agreement, when an employee completes 60 days of employ-
ment, he/she shall be given continuous service credit back to
the date of hire. The agreement also states that employees are
eligible for various contractual benefits once they have com-
pleted their 60-day probationary period (e.g., holiday pay, mili-
tary leave, pay for jury duty, health insurance, accident and life

17 Respondent contends that these temporary employees do not be-
come unit employees regardless of how long they work because they
are not performing bargaining unit work. I reject this claim. These
temporary employees perform DRP and cleaning work, but that work is
also performed by unit employees. Additionally, the temporary em-
ployees who become permanent temps also are assigned to work on the
production lines and other areas, and they perform some of the same
tasks the unit employees perform.
ORCHIDS PAPER PRODUCTS CO. 21
insurance, and 401(k) plan participation).
There is no dispute that John Aguilar, Carrie Bunnell, Bran-
don Glory, Rebecca Scott, and Jennifer Whisenhunt each com-
pleted 60 days of employment, but did not receive the contrac-
tual pay or benefits.18 Respondent has presented no contract
provision, other than the provisions in Article 16 and Article 6
giving it the right to decide whom to hire, to support its claim
that it had no obligation to apply the terms of the contract to
those temporary employees once they completed the 60-day
probationary period. I, therefore, find that Respondent failed to
abide by the terms of the agreement by not providing the con-
tractual pay or benefits to those temporary employees who
completed their 60 days of employment, without the Union’s
consent, in violation of Section 8(a)(5) and (1) and Section 8(d)
of the Act.
Additionally, there is the issue of whether Respondent failed
to abide by the terms of the parties’ agreement when it termi-
nated the assignments of these temporary employees following
the August 4 meeting. Article 6 states an employee can be
“discharged for just and reasonable cause” and/or can be re-
lieved of duty “because of lack of work or other legitimate
reasons.” Dooley acknowledged that Respondent suspended its
use of the temporary employees (which resulted in terminating
the assignments of the above individuals), only after the Union
asserted that the temporary employees were covered by the
agreement. Dooley testified that Respondent took this action
because it was uncertain following the August 4 meeting what
the Union wanted the Respondent to do. Assuming arguendo
that there was confusion following that meeting, I find that
confusion was resolved by Vincent’s August 12 email to
Dooley explaining exactly what should happen per the terms of

18 The Complaint alleges Respondent made unilateral changes and
contract modifications. In Bath Iron Works Corp., 345 NLRB 499, 501
(2005), the Board addressed the difference between the two, holding:
The “unilateral change” case and the “contract modification” case
are fundamentally different in terms of principle, possible defenses, and
remedy. In terms of principle, the “unilateral change” case does not
require the General Counsel to show the existence of a contract provi-
sion; he need only show that there is an employment practice concern-
ing a mandatory bargaining subject, and that the employer has made a
significant change thereto without bargaining. The allegation is a fail-
ure to bargain. In the “contract modification” case, the General Counsel
must show a contractual provision, and that the employer has modified
the provision. The allegation is a failure to adhere to the contract. In
terms of defenses, a defense to a unilateral change can be that the union
has waived its right to bargain. A defense to the contract modification
can be that the union has consented to the change. In terms of remedy, a
remedy for a unilateral change is to bargain; the remedy for a contract
modification is to honor the contract. Thus, where, as here, the General
Counsel's sole allegation is the allegation of unlawful modification of
the contracts within the meaning of Section 8(d), the Board is limited to
determining whether the employer has altered the terms of a contract
without the consent of the other party.
Id. (internal citations omitted).
In a contract modification case, if an employer has a “sound argua-
ble basis” for its interpretation of a contract and is not “motivated by
union animus or . . . acting in bad faith,” the Board ordinarily will not
find a violation. Id citing to NCR Corp., 271 NLRB 1212, 1213 (1984).
In such cases, there is, at most, a contract breach, rather than a contract
modification. Id. citing to NCR, supra at fn. 6.
the agreement. Based on Dooley’s admission, Respondent did
not terminate the assignments for just and reasonable cause or
because of lack of work or other legitimate reasons. Respond-
ent, therefore, failed to abide by Article 6 of the parties’ agree-
ment, without the Union’s consent, in violation of Section
8(a)(5) and (1) and Section 8(d) of the Act.
Furthermore, because Dooley acknowledged Respondent
terminated the assignments of these five named employees in
response to the Union asserting that such employees were cov-
ered by the parties’ agreement and entitled to receive contractu-
al pay and benefits, I find that those terminations were because
of protected concerted and union activities, in violation of Sec-
tion 8(a)(3) and (1) of the Act. See Schrock Cabinet Co., 339
NLRB 182 (2003) (discipline followed assertion of contractual
right).
B. Verbal Agreement
Paragraphs 8 and 11 of the complaint allege that Respondent
violated Sections 8(a)(5), (3), and (1) of the Act when it with-
drew from a verbal agreement the parties reached regarding the
use of temporary employees to perform non-production over-
time work. The General Counsel alleges that in August or Sep-
tember 2016, Jason Gann and Court Dooley entered into a ver-
bal agreement to first offer this nonproduction overtime work to
volunteers from the unit, and, if not enough employees volun-
teered, then Respondent could use temporary employees to
perform the work. The basis for these allegations is the testi-
mony of Jason Gann, who is the only witness with personal
knowledge that testified that he and Dooley had reached this
oral agreement. And as previously stated, I do not credit
Gann’s testimony. As I find that Respondent did not enter into
such a verbal agreement, I find that Respondent did not unlaw-
fully withdraw the same. Consequently, I recommend that
these allegations be dismissed.
C. Conversion of Lines 6 & 7 To Op-Tech Lines
Paragraphs 14(a), (b), and (c) of the Complaint allege that
Respondent unilaterally converted Lines 6 and 7 to “Op-Tech”
Lines, without the Union’s consent, in violation of Section
8(a)(5) and (1) and Section 8(d) of the Act. Section 8(d) of the
Act defines the obligation to bargain with respect to wages,
hours, and other terms and conditions of employment, but states
that the duties so imposed shall not be construed as requiring
either party to discuss or agree to any modification of the terms
and conditions contained in a contract for a fixed period, if such
modification is to become effective before such terms and con-
ditions can be reopened under the provisions of the contract.
Consequently, when a collective-bargaining agreement is in
effect, a party is under no obligation to consent to, or even dis-
cuss, proposed midterm modifications of a contractual term,
unless the agreement contains a reopener provision. Kellogg
Co., 362 NLRB No. 86, slip op. at 5 (2015) (“[W]hen a collec-
tive-bargaining agreement is in effect, a party is under no obli-
gation to consent to, or even discuss, proposed midterm modifi-
cations of a contractual term, unless the agreement contains a
reopener provision.”). An employer violates Section 8(a)(5) and
(1) and Section 8(d) of the Act when during the term of a col-
lective-bargaining agreement it modifies any provision govern-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
ing a mandatory subject of bargaining. See e.g., Daycon Prod-
ucts Co., Inc., 357 NLRB 508 (2011), reaffd. 360 NLRB No.
54 (2014); Republic Die & Tool Co., 343 NLRB 683, 686
(2004); St. Barnabas Medical Center, 341 NLRB 1325 (2004).
Article 37 of the parties’ agreement explicitly addresses the
conversion of lines 6 or 7 to Op-Tech lines and requires that
“both parties will discuss and must agree” before conversion of
one or both of those lines could occur. When Respondent
proposed converting lines 6 and 7 to Op-Tech lines, the Union,
through Vincent, declined to agree to the change. Respondent,
nonetheless, went forward with the conversion. Respondent
contends that it was permitted to make this change, claiming
that the contractual language in Article 37 was ambiguous, and
that the extrinsic evidence from two individuals formerly from
the Union’s negotiating committee involved in negotiating the
contract (Montoya and Wright) was that the Union had previ-
ously agreed to allow the conversions at issue. The General
Counsel counters that Article 37 is unambiguous and, therefore,
extrinsic evidence is inadmissible. I agree. Article 37 unam-
biguously requires that the Union agree to the conversion of
lines 6 and/or 7. Board precedent prohibits the use of parol
evidence to vary the unambiguous terms of a collective-
bargaining agreement. See NDK Corp., 278 NLRB 1035
(1986).
Additionally, even if I were to find the language ambiguous,
I do not credit the testimony offered by Court Dooley that the
parties had previously discussed the conversions of these lines,
and the Union agreed to it. Respondent failed to introduce
sufficient evidence regarding these alleged negotiations and
resulting agreement to conclude that a valid agreement existed.
As previously stated, Respondent did not call witnesses or pre-
sent evidence regarding this alleged agreement.
As a result, by failing to get the Union’s consent before mov-
ing forward with the conversions of lines 6 and 7 to Op-Tech
lines, Respondent violated Sections 8(a)(5) and (1) and Section
8(d) of the Act.
D. Health Insurance
Paragraph 11(b) of the Complaint alleges that Respondent
unilaterally changed health insurance, without providing the
Union with timely notice and an opportunity to bargain over the
decision or its effects, in violation of Section 8(a)(5) and (1) of
the Act. The General Counsel contends that Respondent,
through Moss, notified the Union after the decision to change
carriers had been made and implemented. An employer vio-
lates Section 8(a)(5) when it unilaterally institutes changes in
mandatory terms of employment without bargaining in good
faith. NLRB v. Katz, 369 U.S. 736, 743 (1962). In general,
good-faith bargaining requires timely notice and a meaningful
opportunity to bargain regarding a proposed change. See
Brimar Corp., 334 NLRB 1035, 1035 (2010); Wackenhut
Corp., 345 NLRB 850, 868 (2005). Once notice is received,
the union must act with “due diligence” to request bargaining,
or risk a finding that it has waived its bargaining right. See
KGTV, 355 NLRB 1283 (2010). A union may be excused from
requesting to bargain if the notice provides too little time for
negotiation before implementation, or if the employer other-
wise has made it clear that it has no intention of bargaining the
issue. In these circumstances, a bargaining request would be
futile, because the employer’s notice informs the union of noth-
ing more than a fait accompli. Id. Ciba-Geigy Pharmaceutical
Division, 264 NLRB 1013, 1017 (1982), enfd. 722 F.2d 1120
(3d Cir. 1983)
Respondent unilaterally changed the unit's health insurance
carrier from Community Care to United Healthcare, and it first
notified the Union that it had changed carriers after the decision
had been made and a day or so before the insurer was going to
begin enrolling employees. Respondent does not dispute that it
failed to provide the Union with timely notice or an opportunity
to bargain. Moss also did not dispute Besley’s testimony that
Respondent was unwilling to bargain with the Union over this
change when Besley requested to bargain. Rather, Respondent
contends that there is no violation because the General Counsel
failed to establish that the change was substantial, material, and
significant. However, the Board had held that the identity of
the employees’ health insurance carrier is as much a mandatory
subject of bargaining as is the level of benefits the employees
enjoys. Seiler Tank Truck Service, Inc., 307 NLRB 1090, 1100
(1992); Connecticut Light Co, 196 NLRB 967 (1972), rev. 476
F.2d 1079 (2d Cir. 1973); Aztec Bus Lines, 289 NLRB 1021,
1036 (1988). As a result, I find that Respondent had an obliga-
tion to bargain over the change in carriers and the effects of that
change, and that its failure or refusal to do so violates Section
8(a)(5) and (1) of the Act. See Dodge of Naperville, Inc., 357
NLRB 2252 (2012) (no waiver of effects bargaining by failing
to request bargaining when change announced as a fait accom-
pli).
E. Clothing, Shoe, and FRC Policies
Paragraph 12 of the complaint alleges that Respondent vio-
lated Sections 8(a)(5) and (1) of the Act when it implemented a
shoe policy, a clothing policy, and flame-resistant clothing
policy without providing the Union with notice and an oppor-
tunity to bargain over the decision or its effects. The Board has
held that work rules requiring the use of safety and personal
protection equipment are mandatory subjects of bargaining. See
Public Service Co. of Oklahoma, 334 NLRB 487, 489 (2001),
enfd. 318 F.3d 1173 (10th Cir. 2003) (“work and safety rules”
are a mandatory subject of bargaining); AK Steel Corp., 324
NLRB 173 (1997). See also Castle Hill Health Care Center,
355 NLRB 1156, 1183 (2010); Kohler Mix Specialties, 332
NLRB 631, 632 (2000); and Minnesota Mining & Mfg. Co.,
261 NLRB 27, 29 (1982), enfd. 711 F.2d 348 (D.C. Cir. 1983).
The General Counsel alleges that Respondent failed to bargain
in good faith with the Union regarding these policies because it
announced them as a fait accompli. I reject this claim as it
relates to the protective clothing and shoe policies. Respondent
implemented these policies in response to an OSHA investiga-
tion which determined that Respondent had failed to conduct a
required hazard assessment and ensure that employees had the
necessary personal protective equipment. Union representa-
tives Darla Reed and Darlene Russell were aware of the OSHA
inspection and the subsequent findings. Respondent later en-
tered into an informal settlement agreement with OSHA requir-
ing that Respondent have a hazard assessment performed and
then adopt personal protective equipment policies to ensure the
ORCHIDS PAPER PRODUCTS CO. 23
safety of the employees working at the converting facility, and
Respondent needed to be in compliance by April 28, 2017. The
evidence, however, is unclear whether Reed or Russell knew
that Respondent had agreed to implement new clothing and
shoe policies as part of this resolution. In late March and early
April 2017, Respondent notified the employees that it had cre-
ated protective clothing and shoe policies that would become
effective April 28, 2017. On April 5, 2017, the Union request-
ed to meet and bargain over the dress code, and Respondent
agreed. At their April 12 meeting, the parties reached an
agreement in which Respondent would provide employees with
shirts, a sweatshirt, and a jacket (for employees who worked
outdoors). On April 20, 2017, Doug Moss sent Chad Vincent
an email asking whether the Union had any response to their
meeting regarding the new PPE/dress code policies, noting that
the rollout date for the policies was April 28, 2017. On April
27, 2017, Vincent replied that the Union would accept the
company’s offer as presented without waiving its right to
grieve, bargain or discuss any issues regarding the implementa-
tion of the PPE/clothing policy. Respondent already offered to
reimburse employees up to $120 for the purchase of safety
shoes, and the Union did not request to bargain further over that
policy.
In light of these facts, I do not find that Respondent an-
nounced these policies as a fait accompli or that it implemented
them without providing the Union with notice or an opportunity
to bargain over the decision or its effects. After the April 12
meeting, the Union did not make any further demand to bar-
gain. I, therefore, do not find that Respondent failed or refused
to bargain over the decision to implement the clothing and shoe
policies, or their effects, and I recommend the dismissal of the
allegations in paragraph 12 as they relate to the clothing and
shoe policies.
I reach a different conclusion regarding Respondent’s later
implementation of its flame-resistant (FR) clothing policy.
With regards to that policy, there was discussion between Re-
spondent and the Union in around August 2016 about the need
for Respondent to become compliant with NFPA 70E, which
required the performance of an arc flash study to determine the
FR rating of the protective clothing and equipment that the
maintenance employees would need to wear within the arc flash
boundary area. Thereafter, Respondent commissioned the
study, and the results of that study were issued in April 2017.
Darby informed Besley that Respondent would be providing
FR clothing and equipment to the maintenance employees for
them to wear to be compliant with NFPA 70E. At the April 12,
2017 bargaining session at Rogers State University, the parties
discussed the FR clothing for the maintenance employees. The
Union asked Court Dooley whether the maintenance employees
would need to wear their FR clothing all the time, and Dooley
responded that he did not see why they would need to wear it
other than when they were working near the electrical cabinets.
Matt Rhodes gave Michael Besley a similar answer when the
two spoke in early May 2017.
Unlike when Respondent announced that it was going to im-
plement the clothing and shoe policies, the Union did not re-
quest to bargain when Respondent announced that it intended to
require that the maintenance employees wear FR-rated clothing
in accordance with NFPA 70E. However, Respondent,
through Darby, broadened the FRC policy in May 2017 when
he announced that maintenance employees would be required
to wear their FR clothing at all times while they were on duty,
as opposed to when they were working within the arc flash
boundaries. I find Respondent announced and implemented
this broader policy without providing the Union with notice or
an opportunity to bargain over the decision or its effects, in
violation of Section 8(a)(5) and (1) of the Act.
F. Discipline of Michael Besley
Paragraph 9 of the Complaint alleges that Respondent violat-
ed Section 8(a)(3) and (1) of the Act when it suspended and
later issued a written warning to Michael Besley on May 15,
2017 and May 23, 2017, respectively, because he engaged in
protected concerted and union activities. Paragraph 12(c) and
(d) of the complaint alleges that Respondent violated Section
8(a)(5) and (1) of the Act when it suspended and later issued a
written warning to Besley on these dates, because it did so
based on the unilaterally implemented FRC policy requiring
that maintenance employees wear their FR clothing at all times
during their shift. Under clearly established Board law, if an
employer's unilaterally imposed rule was a factor in the disci-
pline or discharge of an employee, the discipline and discharge
violates Section 8(a)(5) and (1) of the Act. Consec Security,
328 NLRB 1201 (1999); Behnke, Inc., 313 NLRB 1132, 1139
(1994); Equitable Gas Co., 303 NLRB 925, 931 fn. 29 (1991).
Since there is no dispute that Respondent suspended Besley on
May 15, 2017 because he failed to comply with the unilaterally
implemented FRC policy requiring that maintenance employees
wear their FR clothing at all times during their shift, that sus-
pension violates Section 8(a)(5) and (1) of the Act. The same
holds true for the portion of the May 23, 2017 warning Re-
spondent issued to Besley for failing to comply with this unilat-
erally implemented rule. Based on my findings that these dis-
ciplines made pursuant the unlawfully implemented broader
FRC policy violated Section 8(a)(5) of the Act, I need not con-
sider the General Counsel’s Section 8(a)(3) theory regarding
those actions.
But I must consider the General Counsel’s Section 8(a)(3)
theory as it relates to the portion of the written warning Re-
spondent issued to Besley on May 23, 2017. The warning dis-
ciplined Besley for failing to properly utilize the CMMS system
to correctly track his work orders and productivity (despite
recent training). The warning also disciplined him for failing to
follow proper escalation procedures concerning when a mainte-
nance technician is required to notify a supervisor if he is una-
ble to resolve a maintenance issue within a certain period of
time.
The General Counsel contends Respondent issued Besley
this warning in retaliation for his protected concerted and union
activities as the Local Union President, including challenging
the FRC policy and its enforcement. An employer violates
Section 8(a)(3) and (1) of the Act by taking adverse action
against employees because of their protected concerted and
union activities. Under Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), the General Counsel bears the initial burden to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
show that the employees' protected activity was a motivating
factor for the adverse action by demonstrating: (1) the employ-
ee's protected activity; (2) knowledge of that activity; and (3)
animus. See Austal USA, LLC, 356 NLRB 363, 363 (2010). The
Board has held that animus or discriminatory motive can be
inferred from evidence of suspicious timing, false reasons given
in defense of the action, failure to adequately investigate al-
leged misconduct, departures from past practices, tolerance of
behavior for which the employee was allegedly disciplined or
discharged, and disparate treatment of the disciplined or dis-
charged employees. Consolidated Bus Transit, Inc., 350 NLRB
1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009); Medic
One, Inc., 331 NLRB 464, 475 (2000). The burden then shifts
to the employer to show that it would have taken the same ac-
tion, even in the absence of the employee's protected activity.
Austal USA, LLC, 356 NLRB at 363−364. Under Wright Line,
an employer does not satisfy its burden merely by stating a
legitimate reason for the action taken, but instead must per-
suade by a preponderance of the credible evidence that it would
have taken the same action in the absence of the protected con-
duct. Manno Electric, Inc., 321 NLRB 278, 280 fn. 12 (1996).
In applying these factors, I find that Besley was engaged in
protected concerted and union activities at around the time he
received this discipline, including when he spoke to Darby and
other supervisors regarding these shoe, clothing, and FRC poli-
cies, and Respondent was clearly aware of these activities.
Respondent introduced testimony and documentary evidence
that Besley was frequently away from his work area or on break
when he should have been working; he was frequently failing
to properly log his time in CMMS; and he repeatedly failed to
follow the escalation procedure. But that evidence indicates
that this was occurring for several months prior to the issuance
of the May 23, 2017 written warning, which was the first time
in almost a year that he received any discipline for these of-
fenses. I find the timing of this warning in relation to Besley’s
protected concerted and union activities, as well as Respond-
ent’s apparent tolerance of the infractions prior the protected
activities at issue, support that the warning was motivated by
animus. Respondent failed to offer a credible explanation for
why it waited to issue Besley the warning, and it failed to pre-
sent comparable evidence that it would have issued the warning
if he had not engaged in protected activities. Consequently, I
find that the issuance of the written warning for failing to
properly use CMMS and comply with escalation requirements
was discriminatorily motivated, in violation of Section 8(a)(3)
and (1) of the Act.
G. Promulgation of Overbroad Policy & Modification of
Agreement Regarding Union Activities
Paragraph 7(a) of the Complaint alleges that on about Febru-
ary 8 and 9, 2017, Respondent verbally promulgated and since
then maintained an overly broad rule prohibiting employees
from talking to employees from other departments, except dur-
ing non-work time, in direct response to employees’ union
activities and to discourage its employees from forming, joining
or assisting the Union or engaging in other concerted activities,
in violation of Section 8(a)(1) of the Act. Paragraph 15 of the
Complaint alleges that since on about February 8 and 9, 2017,
Respondent failed to continue in effect all the terms and condi-
tions of the parties’ collective-bargaining agreement by prohib-
iting employees from engaging in any union activities during
working time and on the work floor, without the Union’s con-
sent, in violation of Sections 8(a)(5) and (1) and 8(d) of the
Act.
Article 8, section 5 of the agreement states that “[i]t is ex-
pected that the officers and/or the shop steward will be away
from their regular job assignment as little as possible. It is un-
derstood that if union business or investigation of grievances
need to be conducted during working hours, supervisory per-
mission must be obtained in any departments affected.”
The unrefuted testimony from Union Officials Besley, Mon-
toya, and Reed was that various supervisors or managers stated
that they were not to conduct Union business during work time
or on the production floor. According to Reed and Besley, the
past practice has been to allow employees to discuss the Union
or union business on the production floor. Reed and Besley
also testified that the company has allowed employees to dis-
cuss other nonwork related topics, such as sports and vacations,
while on the production floor, without restriction or the threat
of discipline. Respondent failed to refute this evidence. It is
well settled that an employer may prohibit discussions regard-
ing union matters “during periods when the employees are sup-
posed to be actively working,” if the employees are also prohib-
ited from discussing other subjects “not associated or connected
with the employees' work tasks.” Scripps Memorial Hospital
Encinitas, 347 NLRB 52 (2006), quoting Jensen Enterprises,
339 NLRB 877, 878 (2003); see also Sam's Club, 349 NLRB
1007, 1009 (2007). However, if employees are permitted to
discuss other matters unrelated to work during work time, an
employer violates Section 8(a)(1) by prohibiting similar con-
versation regarding union-related issues. Sam's Club, 349
NLRB at 1009; Scripps Memorial Hospital Encinitas, 347
NLRB at 52. Based on the evidence, I find that Respondent
discriminatorily promulgated rules prohibiting Union officers
or agents from talking to employees in other areas, except dur-
ing nonwork time, while allowing employees to discuss other,
nonunion related matters during work time, in violation of Sec-
tion 8(a)(1) of the Act.
I further find that Respondent unilaterally modified the terms
of the parties’ agreement (Article 8, sec. 5), without the Un-
ion’s consent, by making these blanket statements to Union
officers that they were prohibited from discussing Union busi-
ness during work time or on the production floor, regardless of
whether they obtained their supervisor’s permission, in viola-
tion of Section 8(a)(5) and (1) and Section 8(d) of the Act.
H. Independent 8(a)(1) Violations
1. Background
The Complaint alleges Respondent, through its supervisors
and agents, committed several independent violations of Sec-
tion 8(a)(1) of the Act. Section 8(a)(1) of the Act makes it an
unfair labor practice for an employer “to interfere with, restrain,
or coerce employees in the exercise of” their rights to engage in
protected union and concerted activity. In deciding whether an
employer has made a threat in violation of this prohibition, the
Board considers the totality of the circumstances in assessing
ORCHIDS PAPER PRODUCTS CO. 25
whether a statement or conduct has a reasonable tendency to
interfere, restrain, or coerce employees. KSM Industries, 336
NLRB 133 (2001); Mediplex of Danbury, 314 NLRB 470, 471
(1994). The test for is an objective one. G4S Secure Solutions
(USA) Inc., 364 NLRB No. 92, slip op. at 2-3 (2016). “[T]test
of interference, restraint, and coercion under Section 8(a)(1) of
the Act does not turn on the employer's motive or on whether
the coercion succeeded or failed.” American Tissue Corp., 336
NLRB 435, 441 (2001), citing NLRB v. Illinois Tool Works,
153 F.2d 811, 814 (7th Cir. 1946).
2. August 24, 2016 conversation between Dooley and Gann
The General Counsel alleges that on or about August 24,
2016, Court Dooley violated Section 8(a)(1) of the Act when he
told Jason Gann that Respondent discharged the temporary
employees because the Union sought to include them in the
bargaining unit. (Complaint ¶ 6(a)). This allegation concerns
the conversation between Dooley and Gann when Gann filed
his second grievance and told Dooley that Respondent needed
to recall the three temporary employees who worked 60 days.
Dooley responded that the Union had told Respondent to get rid
of the temporary employees (during their August 4, 2016 meet-
ing). Dooley testified that he and Merryman were confused
following the August 4 meeting as to what the Union wanted
Respondent to do regarding the temporary employees, because
they both believed that Vincent was upset with having tempo-
rary employees performing unit work and wanted them gone.
However, Dooley did not seek clarification before terminating
the employees’ assignments, and he did not recall those em-
ployees after Vincent sent his August 12 email to Dooley clari-
fying that the Union’s position was that those temporary em-
ployees who worked more than 60 days were covered under the
terms of the parties’ agreement. Therefore, at the time Dooley
made this statement, effectively blaming the Union for the dis-
charge of these temporary employees, he knew that is not what
the Union was seeking. I find that Dooley continuing to blame
the Union for the discharge of these employees after he knew
that not to be true, particularly in response to a union official
filing a grievance regarding those temporary employees, had a
reasonable tendency to interfere, restrain or coerce employees
in the exercise of their Section 7 rights. Under the circum-
stances, I find the statement violates Section 8(a)(1) of the Act.
3. November 29, 2016 conversation between Dooley, Reed,
and Besley
The General Counsel alleges that on or about November 29,
2016, Court Dooley violated Section 8(a)(1) of the Act when he
told Reed and Besley that they were prohibited from talking
about the union or union business during working time or while
on the work floor, while permitting employees to talk about
other nonwork related subjects. (Complaint ¶ 6(b)). The con-
versation at issue followed Respondent receiving reports from
employees that Reed was harassing and threatening employees
if they supported the decertification effort. Besley asked
Dooley why it was okay for another employee (Andrew Mason)
to pass a decertification petition around on the floor and get
signatures, and Reed was being called into the office for har-
assment. Dooley answered that they had put a stop to it and
that Mason was no longer getting signatures on company time.
Later, Dooley told Reed and Besley that they could not talk
Union business on the floor. It had to be on their breaks. (Tr.
303.)
The General Counsel contends that, according to Reed and
Besley, the past practice has been to allow employees to discuss
the Union on the production floor. Both Reed and Besley also
testified that the company allowed employees to discuss sports
and vacations while on the production floor, without restriction
or the threat of discipline. Respondent failed to refute this evi-
dence. As previously stated, if employees are permitted to
discuss other matters unrelated to work during work time, an
employer violates Section 8(a)(1) by prohibiting similar con-
versation regarding union-related issues. Sam's Club, 349
NLRB at 1009; Scripps Memorial Hospital Encinitas, 347
NLRB at 52. As a result, I find that Dooley’s broad statement
prohibiting employees from discussing the Union while on
work time or on the work floor, contrary to past practice, while
allowing other nonwork related discussions, violated Section
8(a)(1) of the Act.
4. December 2016 conversation between Blower, Foss,
and Reed
The General Counsel alleges on or about December 16,
2016, Bradley Blower and Kelly Foss violated Section 8(a)(1)
of the Act by coercing Darla Reed by accusing her of harass-
ment because she engaged in union activity. (Complaint ¶
6(c).) This allegation relates to the meeting Blower and Foss
had with Reed in which they called her into their office and told
her that they had received reports that she was harassing em-
ployees on the production floor, and that she needed to stop.
They did not provide her with specifics regarding what she
allegedly was doing to harass employees. I find that, under
these circumstances, the vague accusations of harassment and
instructions to stop could reasonably be interpreted as reaching
protected—but unwelcome—union solicitation or activity.
Such a prohibition is unlawful. See generally, Lutheran Herit-
age Village-Livonia, 343 NLRB 646 (2004) (broad written
rules or policies vaguely prohibiting conduct or statements
unlawful). As a result, I find the statements violate Section
8(a)(1) of the Act.
5. January 25, 2017 conversation between Dooley and Gann
The General Counsel alleges that on around January 25,
2017, Court Dooley violated Section 8(a)(1) of the Act when he
told Jason Gann that his union activities were disrespectful to
management (Complaint ¶ 6(d)). This alleged violation oc-
curred in the meeting Dooley had with Gann after the meeting
in which Gann acted as the Union representative for Gabriel
Cutler. Dooley told Gann that he did not like the way that
Gann had treated his management during the meeting and that
Gann was not to talk to his management that way. Dooley did
not specify what Gann said that was offensive, only that he was
not to do again. In this case, Dooley made the statement to a
Union officer about statements while acting in his representa-
tional capacity. Under the circumstances, I find Dooley’s blan-
ket statements reasonably would have a tendency to interfere
with, restrain, or coerce employees in the exercise of their pro-
tected concerted and union activities, in violation of Section
8(a)(1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
The General Counsel alleges that during this same conversa-
tion Dooley also violated Section 8(a)(1) of the Act by creating
the impression that Gann’s union activities were under surveil-
lance. (Complaint ¶ 6(e).) Specifically, Dooley said to Gann,
“I just want to let you know that people are reporting to me
saying you are doing Union business on company time.” Gann
then asked, “Are you saying you are having me watched?”
Dooley responded, “No, I am not having you watched. I am just
letting you know that people have been reporting that you have
been doing Union business on company time.” The Board's
test for determining whether an employer has created an unlaw-
ful impression of surveillance as whether under all the relevant
circumstances reasonable employees would assume from the
statement in question that their union or protected activities had
been placed under surveillance. Stevens Creek Chrysler, 353
NLRB 1294, 1295−1296 (2009); Bridgestone Firestone South
Carolina, 350 NLRB 526, 527 (2007). Where an employer
tells employees that it is aware of their union activities but fails
to tell them the source of that information, Section 8(a)(1) is
violated because employees are left to speculate as to how the
employer obtained the information causing them reasonably to
conclude that the information was obtained through employer
monitoring. Stevens Creek Chrysler, supra at 1296; Conley
Trucking, 349 NLRB 308, 315 (2007). I find that Dooley’s
statement, after he chastised Gann for his behavior while acting
as a Union representative, reasonably would cause an employee
to assume his protected union activities were under surveil-
lance, particularly when Dooley vaguely referred to receiving
reports from “people” about Gann’s activities, in violation of
Section 8(a)(1) of the Act.
Finally, the General Counsel alleges that during this conver-
sation Dooley further violated Section 8(a)(1) of the Act by
effectively prohibiting Gann from conducting union business
on the production floor in contravention of the parties’ collec-
tive-bargaining agreement (Complaint ¶ 6(f)). Specifically,
after making the above statements about receiving reports that
Gann had been doing union business on Company time, Dooley
asked Gann if he had let anybody know, supervisor or anybody,
when he leaves his work station. Gann told Dooley that he had
let his lead know when he goes to deal with union matters.
Gann informed Dooley that Stafford was his lead man, and that
Dooley could confirm what Gann was saying by asking Staf-
ford. Dooley told Gann to just be sure and let somebody know
whenever he leaves his work station. At the outset this may
seem like Dooley ensuring that Gann is complying with the
contractual requirements for performing Union business on
company time. However, in the context of his other statements
to Gann, I find that Dooley’s statements reasonably create the
impression that Gann’s union activities would be placed under
greater scrutiny; thus, having a reasonable tendency to interfere
with, restrain, or coerce him in acting as a union steward. Apex
Elec. Servs., Inc., 350 NLRB 40, 42 (2007). Under these cir-
cumstances, I find that Dooley’s statements violate Section
8(a)(1) of the Act.
6. February 2017 Conversation Between Blower, Foss,
and Reed
The General Counsel alleges that on or about February 6,
Bradley Blower and Kelly Foss violated Section 8(a)(1) of the
Act by again coercing Darla Reed by accusing her of harass-
ment because she engaged in union activity. (Complaint ¶ 6(h).
This allegation relates to the second conversation between
Blower, Foss, and Reed in which they stopped her on the pro-
duction floor to tell her that they were again receiving com-
plaints that she was harassing employees. Again, they did not
provide her with specifics regarding what she allegedly was
doing to harass employees. I find that, under these circum-
stances, the vague accusations of harassment and instructions to
stop could reasonably be interpreted as reaching protected—but
unwelcome—union solicitation or activity. Such a prohibition
is unlawful. Lutheran Heritage Village-Livonia, supra. As a
result, I find the statements violate Section 8(a)(1) of the Act.
7. February 2017 Conversations Between Blower, Foss,
and Montoya
The General Counsel alleges that on or about February 6,
2017, Bradley Blower and Kelly Foss violated Section 8(a)(1)
of the Act by coercing Chris Montoya by accusing him of har-
assment because he engaged in union activities. (Complaint ¶
6(g).) This allegation relates to when Blower and Foss ap-
proached Montoya in the warehouse to inform him that they
had received reports that he was harassing people. They did so
because there were reports that Montoya impliedly threatened
harm to an employee’s family member because her husband
was involved in the decertification effort. Blower and Foss did
not provide Montoya with details of the accusations in this
conversation, but Montoya was informed of the accusations in a
subsequent conversation near in time. In this context, I find
that Montoya was not engaged in protected activity because the
accusations of harassment related to physical threats, and Mon-
toya was aware that it related to such threats. In Re Strack &
Van Til Supermarkets, 340 NLRB 1410, 1413 (2004).
The General Counsel alleges that on or about February 6,
2017, Bradley Blower and Kelly Foss violated Section 8(a)(1)
of the Act by threatening to terminate Chris Montoya because
of his Union activities. (Complaint ¶ 6(i).) This allegation
relates to the meeting the morning when Blower or Foss told
Montoya that the way that he talked to them when they ap-
proached him the day before was unacceptable, and that if he
did it again, he would be walked out. Under the circumstances,
I do not find that Montoya was engaged in protected concerted
or union activities when he stated that he wanted to speak to the
CEO. I, therefore, do not find that the statement that a threat to
discharge him for that behavior would reasonably tend to inter-
fere with, restrain, or coerce him in the exercise of his statutory
rights. As a result, I do not find the alleged threat to violate
Section 8(a)(1) of the Act.
8. Conversation Between Moss and Dooley and Reed
and Montoya
The General Counsel also alleges that on or about February
8, 2017, Court Dooley and Doug Moss violated Section 8(a)(1)
of the Act by telling Darla Reed and Chris Montoya that em-
ployees were prohibited from talking about the union or union
business during working time or while on the work floor while
permitting employees to talk about other nonwork related sub-
jects. (Complaint ¶ 6(j).) As previously stated, if employees
ORCHIDS PAPER PRODUCTS CO. 27
are permitted to discuss other matters unrelated to work during
work time, an employer violates Section 8(a)(1) by prohibiting
similar conversation regarding union-related issues. Sam's
Club, 349 NLRB at 1009; Scripps Memorial Hospital Encini-
tas, 347 NLRB at 52. As a result, I find that Dooley’s broad
statement prohibiting employees from discussing the Union
while on the work floor or on work time, while allowing other
nonwork related discussions, violated Section 8(a)(1) of the
Act.
9. Conversation Between Moss, Reed, and Russell
The General Counsel also alleges that on or about April 12,
2017, Doug Moss violated Section 8(a)(1) of the Act when he
called Darla Reed and Darlene Russell into his office and pro-
hibited them from speaking during meetings and requiring that
they only talk before or after the meetings. (Complaint ¶ 6(k).)
According to Reed, Moss told her that from here on out, if she
had anything to say, she was to say it before the meeting or
after the meeting, and she could not say anything during the
meeting. According to Moss, he told Reed and Russell that “if
they had objections to the policies and they felt that strongly
about it, if they wanted to cuss me or raise their voice at me to
do so before the meeting or after the meeting in my office or in
some other office but not to conduct themselves that way in a
company meeting.” I find that regardless of which version I
credit, Moss’s statement restricting what Reed and Russell can
say in future employee meetings was overbroad, even if he was
restricting them from using profanity. The Board has found
that an employer violates Section 8(a)(1) of the Act by main-
taining rules that are so broad that they would reasonably be
construed to limit protected criticism of the employer. See
Lafayette Park Hotel, 326 NLRB at 828 (rule against “false,
vicious, profane, or malicious” statements about the employer
was overbroad); Southern Maryland Hospital Center, 293
NLRB 1209, 1221 (1989) (rule against “derogatory attacks”
was unlawful), enfd in rel. part, 916 F.2d 932 (4th Cir. 1990);
and Great Lakes Steel, 236 NLRB at 1037 (rule against distrib-
uting “libelous, defamatory, scurrilous, abusive, or insulting”
literature was unlawfully overbroad). Under the circumstances,
I do not find that the comments Reed or Russell made during
the meeting were directed at Moss personally. But rather their
commentary, as Union officers, targeted the new clothing poli-
cy. Such commentary, even if it involved brief profanity, is
protected activity. See Prescott Industrial Products Co., 205
NLRB 51, 51−52 (1973) (referring to protection afforded to a
“moment of animal exuberance”). As a result, I find that
Moss’s statement restricting similar conduct in the future vio-
lates Section 8(a)(1) of the Act.
10. Conversation between Cochrell and Besley
The General Counsel alleges that Jeff Cochrell violated Sec-
tion 8(a)(1) of the Act on or about May 5, 2017, when he pro-
hibited Michael Besley from conducting union business on the
production floor. (Complaint ¶ 6(l).) This allegation relates to
when unit employee Shawn Teiger approached Besley about
points he had received under the company’s attendance policy.
Jeff Cochrell later walked up to Teiger and said that they could
not do union business on the floor on company time. Teiger
told this to Besley, and Besley then walked over to Cochrell
and told him that he could not tell them not to do union busi-
ness on the floor. Cochrell replied that he was new and did not
know that they could do union business on the floor. The past
practice was that employees could discuss the Union and Union
business on the production floor and during work time. They
also are able to discuss non-union, non-work-related topics,
such as vacations and sports, during work time, without re-
striction or threat of discipline. As previously stated, if em-
ployees are permitted to discuss other matters unrelated to work
during work time, an employer violates Section 8(a)(1) by pro-
hibiting similar conversation regarding union-related issues.
See Sam's Club, 349 NLRB at 1009; Scripps Memorial Hospi-
tal Encinitas, 347 NLRB at 52. As a result, Cochrell’s state-
ment about discussing Union business on the production floor
on company time violated Section 8(a)(1) of the Act.19
11. May 5, 2017 conversation between Dooley and Besley
The General Counsel alleges that Court Dooley violated Sec-
tion 8(a)(1) of the Act on or about May 5, 2017 when he told
Michael Besley that he was held to a higher standard because of
his union position. (Complaint ¶ 6(m).) This allegation relates
to the conversation Besley had with Dooley regarding Besley’s
failure to wear side shields on his glasses. As previously stated,
I credit Dooley’s recollection of this conversation over Bes-
ley’s. Dooley testified that he explained to Besley that the two
of them were both leaders at the facility, and he wanted Bes-
ley’s help with these new safety policies that the company was
implementing because they were being implemented for the
employees’ safety. Dooley stated that he was basically plead-
ing with Besley as a leader of the Union to help with this pro-
cess. Respondent had recently implemented these personal
protective equipment measures, without any objection from the
Union. Article 25 of the parties’ agreement, which deals with
health and safety, states, in pertinent part, that “[t]he Union and
the Company will cooperate in assisting and maintaining the
company’s rules regarding health, safety, and sanitation.” I find
that Dooley’s statement to Besley was consistent with this poli-
cy, and he was asking Besley’s assistance as the Local Union
President in maintaining the recently implemented rules. I,
therefore, find that under the circumstances Dooley’s statement
to Besley did not violate Section 8(a)(1) of the Act.
12. May 7, 2017 conversation between Besley, Rhodes,and
Keith
The General Counsel alleges that Matt Rhodes and Richard
Keith violated Section 8(a)(1) of the Act on or about May 7,
2017 when they threatened Besley with suspension if he failed
to wear his FR clothing. (Complaint ¶ 6(n).) The threat to
discipline employees for not complying with a unilaterally
implemented rule violates Section 8(a)(1) of the Act. See GHR
Energy Corp., 294 NLRB 1011, 1048 (1989); Advanced Instal-
lations, Inc., 257 NLRB 845 (1981). As previously stated, I
find that Respondent modified the policy to require that
maintenance employees wear their FR clothing at all times

19 There is no complaint allegation that Respondent’s use of compa-
ny time was overbroad. However, such restrictions are unlawful. See
NLRB v. Chicago Metallic Corp., 794 F.2d 527 (9th Cir. 1986), enforc-
ing in part 275 NLRB 871(1985).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
while on duty, without providing the Union with prior notice
and an opportunity to bargain over this change. As such, I find
that the threat to discipline for failing to comply with this rule
violated Section 8(a)(1) of the Act.
The General Counsel also alleges that on or about May 7,
2017, Matt Rhodes violated Section 8(a)(1) of the Act when he
asked Corey Pendleton whether he was a Union member.
(Complaint ¶ 6(o).) This alleged violation occurred is the
same conversation. Keith and Rhodes asked Besley if he want-
ed Union representation, and Besley stated that he saw Pend-
leton outside and he would ask him to come in and join them.
When Pendleton came in, Rhodes asked Pendleton if he was a
Union member, Pendleton said he was not. Besley then radioed
to Jason Gann for him to come to act as Besley’s representative
during the meeting. When Gann arrived, Pendleton was ex-
cused.
The issue is whether Rhodes’ question to Pendleton as to
whether he was a union member constituted unlawful interroga-
tion. In determining whether a question is coercive in violation
of Section 8(a)(1), the Board applies the standard set forth in
Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
Rossmore House sets forth factors to consider in determining
whether any particular question falls outside the legal bounds
and into unlawful interrogation. The factors are as follows: (1)
the background, (2) the nature of the information sought, (3)
The identity of the questioner, (4). The place and method of
interrogation, and (5) truthfulness of the reply. These factors
are not meant to be mechanically applied. The issue is whether
the questioning would reasonably have a tendency to interfere
with, restrain, or coerce employees in the exercise of their Sec-
tion 7 rights. This is an objective standard and does not turn on
whether the employee was actually intimidated. Multi-Aid Ser-
vice, 331 NLRB 1126 (2000), enf. 255 F.3d 363 (7th Cir.
2001).
In this case, Besley, the local union president, called Pend-
leton into a meeting in the supervisors’ office with two lower-
level supervisors to be his union representative. Rhodes asked
Pendleton the single question of whether he was a member of
the Union to determine if he could act as a union representative,
and Pendleton truthfully replied that he was not a member.
Pendleton remained in the office for the discussion that Gann
was going to be called to come and be Besley’s union repre-
sentative, so he had an understanding as to why he was asked
the question. Under these circumstances, I find that Rhodes’
single question to Pendleton to determine whether it was ap-
propriate for him to act as a Union representative for Besley did
not constitute unlawful interrogation, in violation of Section
8(a)(1) of the Act.
13. May 25 Conversation between Moss and Besley
The General Counsel alleges that on or about May 25, 2017,
Doug Moss violated Section 8(a)(1) of the Act when he threat-
ened Besley with unspecified reprisals for continuing to ask
questions about Respondent’s implementation of a new cloth-
ing policy. (Complaint ¶ 6(p).) This allegation involves the
situation in which Besley was called into a meeting with Doug
Moss, Graham Darby, Richard Keith, and Matt Rhodes. Darby
began by telling Besley that he needed to unroll his pants and
wear them down. Besley stated that the pants were too long
and that he was walking on them. Darby told him that he need-
ed to wear them down. Besley asked questions about needing
to have the pants rolled down. Moss then asked Besley why he
was “beating the pants thing to death asking people about
them.” Besley said it was because he was the Union president
and people were coming to him with questions. Under the
circumstances, particularly that Respondent unilaterally
changed the FRC policy to require employees to wear that
clothing at all time while on duty, I find that Moss’s question to
Besley as to why was he beating the pants thing to death
amounted to a threat of unspecified reprisals.
The General Counsel alleges that on or about May 25, 2017,
Moss violated Section 8(a)(1) of the Act when he instructed
Besley not to report Respondent to OSHA. (Complaint ¶ 6(q).)
According to Besley, he made a statement about contacting
OSHA, and Moss said, “Don’t be calling OSHA on us.” This
was in response to the Union previously contacting OSHA to
report safety concerns. The Board has held that an employer
cannot lawfully interfere with, restrain or coerce employees' in
their concerted communications regarding matters affecting
their employment with third parties such as governmental
agencies. Kinder-Care Learning Centers, 299 NLRB 1171,
1171−1172 (1990). Moss’s statement, even if it was that Re-
spondent wanted Besley to report the issues internally and wait
to see if they got it handled internally before contacting OSHA,
unlawfully interferes with or restrains employees’ right to en-
gage in protected concerted activities of seeking outside assis-
tance in matters relating to employees’ terms and conditions of
employment. I, therefore, find that Moss’s statement about
contacting OSHA violated Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent, Orchids Paper Products Co., is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. Respondent and People Source Staffing
Professionals, LLC (People Source) are joint employers of the
temporary employees People Source refers to work for Re-
spondent at the converting facility.
2. The Union, United Steel, Paper & Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union, AFL−CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. At all material times, the Union has been the certified ex-
clusive collective-bargaining representative, within the mean-
ing of the Section 9(a) of the Act, of Respondent’s employees
at its Pryor, Oklahoma Converting facility with the exception of
executives, office, sales, clerical employees, professional em-
ployees, guards, watchmen, and supervisory employees as de-
fined in the Labor Management Relations Act of 1947, as
amended; and Respondent and the Union have been parties to a
collective-bargaining agreement, dated June 25, 2012, to June
25, 2016, which was extended until the parties reach a new
agreement, covering this unit of employees.
4. Respondent violated Section 8(a)(5) and (1) of the Act
when it verbally promulgated and since then maintained an
overly broad rule prohibiting employees from talking to em-
ORCHIDS PAPER PRODUCTS CO. 29
ployees from other departments, except during nonwork times,
without providing the Union with prior notice and an oppor-
tunity to bargain over this rule.
5. Respondent violated Section 8(a)(5) and (1) of the Act
when it unilaterally changed health insurance carriers without
providing the Union with prior notice and an opportunity to
bargain over this change or its effects.
6. Respondent violated Section 8(a)(5) and (1) of the Act
when it unilaterally changed the flame-resistant clothing policy
to require that covered employees wear that clothing at all
times while on duty, without providing the Union with prior
notice and an opportunity to bargain over this change or its
effects.
7. Respondent violated Section 8(a)(5) and (1) of the Act
when it suspended Michael Besley on May 15, 2017, and later
disciplined him on May 23, 2017, for violating the unilaterally
changed flame-resistant clothing policy requiring that covered
employees wear that clothing at all times while on duty, which
was changed without providing the Union with prior notice and
an opportunity to bargain over the change or its effects.
8. Respondent violated Section 8(a)(3) and (1) of the Act
when it discharged Carrie Bunnell, Rebecca Scott, John Agui-
lar, Brandon Glory, and Jennifer Whisenhunt, because the Un-
ion asserted that temporary employees who worked for Re-
spondent for more than 60 days be included in the bargaining
unit and covered by the terms of the collective-bargaining
agreement, and to discourage employees from engaging in
these and other union activities.
9. Respondent violated Section 8(a)(3) and (1) of the Act
when it disciplined Michael Besley on May 23, 2017, because
he engaged protected concerted and union activities, and to
discourage employees from engaging in these activities.
10. Respondent violated Sections 8(a)(5) and (1) and Sec-
tion 8(d) of the Act when it failed to continue in effect all the
terms and conditions of the parties’ collective-bargaining
agreement by employing temporary employees for more than
60 days without giving them credit for their continuous service
from their date of hire and without applying the terms of the
agreement to determine their wages and terms and conditions of
employment, without the Union’s consent.
11. Respondent violated Sections 8(a)(5) and (1) and Sec-
tion 8(d) of the Act when it failed to continue in effect the
terms and conditions of the parties’ collective-bargaining
agreement by discharging Carrie Bunnell, Rebecca Scott, John
Aguilar, Brandon Glory, and Jennifer Whisenhunt, who had
been employed for more than 60 days, without complying with
the terms of the parties’ agreement related to discharge of em-
ployees, without the Union’s consent.
12. Respondent violated Sections 8(a)(5) and (1) and Sec-
tion 8(d) of the Act when it failed to continue in effect the
terms and conditions of the parties’ agreement when it convert-
ed existing lines 6 and 7 to Op-Tech lines, without the Union’s
agreement.
13. Respondent violated Sections 8(a)(5) and (1) and Sec-
tion 8(d) of the Act when it failed to continue in effect the
terms and conditions of the parties’ agreement when it prohibit-
ed employees from engaging in union activities during working
time and on the work floor, without the Union’s consent.
14. Respondent violated Section 8(a)(1) of the Act on or
about August 24, 2016, by telling employees that Respondent
discharged the temporary employees because the Union sought
to include them in the bargaining unit and covered by the col-
lective bargaining agreement.
15. Respondent violated Section 8(a)(1) of the Act on or
about November 29, 2016, prohibiting employees from talking
about the union or union business during working time or while
on the work floor while permitting employees to talk about
other nonwork related subjects.
16. Respondent violated Section 8(a)(1) of the Act on or
about January 25, 2017, by telling employees that their union
activities were disrespectful to management.
17. Respondent violated Section 8(a)(1) of the Act on or
about January 25, 2017, by creating an impression of surveil-
lance by telling employees that they were being watched and
had been seen conducting union business on the production
floor.
18. Respondent violated Section 8(a)(1) of the Act on or
about January 25, 2017, by prohibiting employees from con-
ducting union business on the production floor in contravention
of the parties’ collective-bargaining agreement.
19. Respondent violated Section 8(a)(1) of the Act on or
about February 8, 2017, prohibiting employees from talking
about the union or union business during working time or while
on the work floor while permitting employees to talk about
other nonwork related subjects.
20. Respondent violated Section 8(a)(1) of the Act on or
about April 12, 2017, by prohibiting union officers from speak-
ing during employee meetings and requiring that they only talk
before or after the meetings.
21. Respondent violated Section 8(a)(1) of the Act on or
about May 5, 2017, by prohibiting employees from conducting
union business on the production floor in contravention of the
parties’ collective-bargaining agreement.
22. Respondent violated Section 8(a)(1) of the Act on or
about May 7, 2017, by threatening employees with suspension
because of their union activities.
23. Respondent violated Section 8(a)(1) of the Act on or
about May 25, 2017, by threatening employees with unspeci-
fied reprisals for continuing to ask questions about Respond-
ent’s implementation of its changed flame-resistant clothing
policy.
24. Respondent violated Section 8(a)(1) of the Act on or
about May 25, 2017, by prohibiting employees from engaging
in protected, concerted activities by instructing employees not
to report Respondent to OSHA.
25. Respondent violated Section 8(a)(1) of the Act on or
about February 8 and 9, 2017, promulgating and maintaining an
overly rule prohibiting employees from talking to employees
from other departments except during nonwork times in re-
sponse to employees’ union activities and to discourage its
employees from forming, joining, or assisting the Union or
engaging in other concerted activities.
26. Respondent violated Section 8(a)(1) of the Act on or
about December 16, 2016, and on February 7, 2017, by vaguely
accusing a union officer of harassment.
27. Respondent has not violated the Act except as set forth
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
above.
PROPOSED REMEDY
Having found that Respondent engaged in certain unfair la-
bor practices, I shall order it to cease and desist therefrom and
take certain affirmative action necessary to effectuate the pur-
poses of the Act.
The Respondent, having unlawfully suspended employee
Michael Besley on May 15, 2017, shall make Besley whole for
any loss of earnings and other benefits suffered as a result of
the Respondent's unlawful suspension of him. The make whole
remedy shall be computed in accordance with Ogle Protection
Service, Inc., 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). In ac-
cordance with Don Chavas, LLC d/b/a Tortillas Don Chavas,
361 NLRB 101 (2014), the Respondent shall compensate Bes-
ley for the adverse tax consequences, if any, of receiving lump
sum backpay awards, and, in accordance with AdvoServ of New
Jersey, Inc., 363 NLRB No. 143 (2016), the Respondent shall,
within 21 days of the date the amount of backpay is fixed either
by agreement or Board order, file with the Regional Director
for Region 14 a report allocating backpay to the appropriate
calendar year for Besley. The Regional Director will then as-
sume responsibility for transmission of the report to the Social
Security Administration at the appropriate time and in the ap-
propriate manner. Respondent shall withdraw from its files all
references to its May 15, 2017 suspension and May 23, 2017
discipline of Besley.
The Respondent, having discriminatorily terminated the as-
signment of John Aguilar, Carrie Bunnell, Brandon Glory, Re-
becca Scott, and Jennifer Whisenhunt, must offer each of them
reinstatement and make each of them whole for any loss of
earnings and benefits they suffered as a result of the discrimina-
tion against them from the date of the discrimination to the date
of their reinstatement, in accordance with F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest at the rate prescribed in
New Horizons, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB 6
(2010). The Respondent shall compensate affected employees
for the adverse tax consequences, if any, of receiving lump-sum
backpay awards, and file with the Regional Director for Region
14, within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar year for each em-
ployee. See AdvoServ of New Jersey, Inc., 363 NLRB No. 143
(2016). The Respondent shall also compensate affected em-
ployees for their search-for-work and interim employment ex-
penses regardless of whether those expenses exceed interim
earnings. See King Soopers, Inc., 364 NLRB No. 93 (2016).
Search-for-work and interim employment expenses shall be
calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra, compounded daily
as prescribed in Kentucky River Medical Center, supra.
The Respondent, having unilaterally changed employees’
health insurance, must rescind, upon request, the changes it
made to employees’ health insurance and make employees’
whole for any losses they suffered as a result.
The Respondent, having unilaterally implemented a flame-
resistant clothing requirement that covered employees must
wear their flame-resistant clothing at all times while on duty,
must rescind that policy, upon request.
The Respondent must also bargain in good faith with the Un-
ion over the aforementioned mandatory subjects of bargaining.
The Respondent, having discriminatorily modified Article
16, Section 5 of the parties’ collective-bargaining agreement
without the Union’s consent and, as a result, failed to convert
temporary employees to unit employees after 60 days, failed to
credit those temporary employees for their continuous service
from the date of hire, and failed to apply the terms of the col-
lective-bargaining agreement to determine their wages and
terms and conditions of employment, must convert the follow-
ing employees to unit positions, give each of them credit for
their continuous service from the date of hire, make each of
them whole for any loss of earnings and benefits they suffered
as result of Respondent’s unlawful conduct, and offer to each of
them immediate and full reinstatement to unit positions: John
Aguilar, Carrie Bunnell, Brandon Glory, Rebecca Scott, Jen-
nifer Whisenhunt, and other employees that may be identified
after a review of Respondent’s records.
The Respondent, having unilaterally converted lines 6 and 7
to “Op Tech” lines without the Union’s consent and in violation
of Article 37of the parties’ collective-bargaining agreement,
must, upon request, convert lines 6 and 7 back.
The Respondent, having implemented a policy prohibiting
employees from engaging in any union activities during work-
ing time and on the work floor without the Union’s consent and
in violation of the parties’ collective-bargaining agreement,
must rescind this policy and abide by the parties’ collective-
bargaining agreement.
Respondent shall post an appropriate informational notice, as
described in the attached Appendix. This notice shall be posted
at the Respondent's Pryor, Oklahoma facility wherever the
notices to employees are regularly posted for 60 days without
anything covering it up or defacing its contents. In addition to
physical posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means.20

20 As part of its requested remedy, General Counsel seeks a notice
reading. The General Counsel, however, makes no argument in his
post-hearing brief as to why such a remedy is warranted. Traditionally,
the Board has granted this remedy when the violations found were
either egregious or extensive (i.e., widespread) and serious. See, e.g.,
Postal Service, 339 NLRB 1162, 1163 (2003); Evenflow Transporta-
tion, Inc., 361 NLRB No. 160, slip op at 1 (2014). In this case, I have
found several violations. While serious, I do not view these violations
as widespread or egregious. Accordingly, I deny the General Counsel's
request for a notice reading.
Similarly, the General Counsel requests that I order Respondent to
pay consequential damages to the discriminatees as a result of Re-
spondent's unfair labor practices. As the Board has recognized, a
change in Board law would be required for me to award consequential
damages. See, e.g., Guy Brewer 43 Inc., 363 NLRB No. 173, slip op. at
2 fn. 2 (2016). Since I must follow existing Board law (which does not
ORCHIDS PAPER PRODUCTS CO. 31
In the event that, during the pendency of these proceedings
Respondent has gone out of business or closed the facility in-
volved in these proceedings, Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by Respondent at any
time since March 22, 2016. When the notice is issued to Re-
spondent, it shall sign it or otherwise notify Region 14 of the
Board what action it will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended21
ORDER
Respondent, Orchids Paper Products Co., at its Pryor, Okla-
homa facilities, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from
(a) Failing or refusing to bargain with the Union as the des-
ignated collective-bargaining representative of Respondent’s
employees at its Pryor, Oklahoma Converting facility with the
exception of executives, office, sales, clerical employees, pro-
fessional employees, guards, watchmen, and supervisory em-
ployees as defined in the Labor Management Relations Act of
1947, as amended.
(b) Making unilateral changes to wages, hours, or other
terms and conditions of employment of the bargaining unit
employees without first providing the Union with notice and an
opportunity to bargain over the change or its effects, including
the change to the health insurance carriers and the change in the
flame-resistant clothing policy to require that covered employ-
ees wear their flame-resistant clothing at all times while on
duty
(c) Suspending or disciplining employees for violating the
unilaterally implemented or changed policies relating to flame-
resistant clothing.
(d) Discharging or terminating the assignment of employees
because the Union pursued their inclusion in the bargaining unit
and demanded that terms of the collective-bargaining agree-
ment applied to them, and to discourage the Union employees
from engaging in these and other union activities.
(e) Disciplining employees because they engaged protected
concerted and union activities, and to discourage employees
from engaging in these activities.
(f) Failing to continue in effect the terms and conditions of
the parties’ June 25, 2012, to June 25, 2016 collective-
bargaining agreement, which the parties agreed to extend until
a new agreement was reached, by employing employees for
more than 60 days without giving them credit for their continu-
ous service from their date of hire and without applying the
terms of the agreement to determine their wages and terms and
conditions of employment, without the Union’s consent.
(g) Failing to continue in effect the terms and conditions of

authorize me to award consequential damages), I deny the General
Counsel's request.
21 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 adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
the parties’ June 25, 2012, to June 25, 2016 collective-
bargaining agreement, which the parties agreed to extend until
a new agreement was reached, by discharging Carrie Bunnell,
Rebecca Scott, John Aguilar, Brandon Glory, and Jennifer
Whisenhunt, who had been employed for more than 60 days,
without complying with the terms of the parties’ agreement
related to discharge of employees, without the Union’s consent.
(h) Failing to continue in effect the terms and conditions of
the parties’ June 25, 2012, to June 25, 2016 collective-
bargaining agreement, which the parties agreed to extend until
a new agreement was reached, by converting existing lines 6
and 7 to Op-Tech lines, without the Union’s agreement.
(i) Failing to continue in effect the terms and conditions of
the parties’ June 25, 2012, to June 25, 2016 collective-
bargaining agreement, which the parties agreed to extend until
a new agreement was reached, when it prohibited employees
from engaging in union activities during working time and on
the work floor, without the Union’s consent.
(j) Telling employees that Respondent discharged employ-
ees because the Union sought to include them in the unit and
covered by the collective bargaining agreement.
(k) Prohibiting employees from talking about the union or
union business during working time or while on the work floor
while permitting employees to talk about other non-work relat-
ed subjects.
(l) Telling employees that their union activities were disre-
spectful to management.
(m) Suggesting to employees that they were being watched
and had been seen conducting union business on the production
floor.
(n) Prohibiting employees from conducting union business
on the production floor in contravention of the parties’ collec-
tive-bargaining agreement.
(o) Prohibiting union officers from speaking during employ-
ee meetings and requiring that they only talk before or after the
meetings.
(p) Threatening employees with suspension because of their
union activities.
(q) Threatening employees with unspecified reprisals for
continuing to ask questions about Respondent’s implementation
of a changed flame-resistant clothing policy.
(r) Prohibiting employees from engaging in protected, con-
certed activities by instructing employees not to report Re-
spondent to OSHA.
(s) Promulgating and maintaining an overly rule prohibiting
employees from talking to employees from other departments
except during nonwork times in response to employees’ union
activities and to discourage its employees from forming, join-
ing, or assisting the Union or engaging in other concerted activ-
ities.
(t) Vaguely accusing union officers of harassing other em-
ployees.
(u) In any like or related manner interfere with, restrain, or
coerce employees in the exercise of the rights listed above.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Abide by the terms and conditions of the parties’ collec-
tive-bargaining agreement dated June 25, 2012, to June 25,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
2016, which the parties agreed to extend until a new agreement
is reached.
(b) Upon request, rescind the changed flame-resistant cloth-
ing policy requirement that covered employees must wear their
flame-resistant clothing at all times while on duty.
(c) Upon request, rescind the change in health insurance car-
riers and make employees’ whole for any losses they suffered
as a result.
(d) Make Michael Besley whole for any loss of earnings and
benefits he suffered as a result of his unlawful May 15, 2017
suspension and May 23, 2017 discipline.
(e) Offer John Aguilar, Carrie Bunnell, Brandon Glory, Re-
becca Scott, and Jennifer Whisenhunt full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed, and make each of
them whole for any loss of earnings and benefits they suffered
in accordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest at the rate prescribed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). The Re-
spondent shall compensate them for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards, and
file with the Regional Director for Region 14, within 21 days of
the date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the ap-
propriate calendar year for each employee. See AdvoServ of
New Jersey, Inc., 363 NLRB No. 143 (2016). The Respondent
shall also compensate affected employees for their search-for-
work and interim employment expenses regardless of whether
those expenses exceed interim earnings. See King Soopers,
Inc., 364 NLRB No. 93 (2016). Search-for-work and interim
employment expenses shall be calculated separately from taxa-
ble net backpay, with interest at the rate prescribed in New
Horizons, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra.
(f) Convert temporary employees John Aguilar, Carrie Bun-
nell, Brandon Glory, Rebecca Scott, Jennifer Whisenhunt, and
other employees that may be identified after a review of Re-
spondent’s records who worked for Respondent for more than
60 days, credit them for their continuous service from the date
of hire, and make each of them whole for any loss of earnings
and benefits they suffered as result of Respondent’s unlawful
conduct.
(g) Upon request, rescind the conversion of lines 6 and 7 to
Op-Tech lines.
(h) Rescind the policy prohibiting employees from engaging
in any union activities during working time and on the work
floor.
(i) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful termination of assignment
of John Aguilar, Carrie Bunnell, Brandon Glory, Rebecca
Scott, and Jennifer Whisenhunt, and within 3 days thereafter,
notify the employees in writing that this has been done and that
the termination of assignment will not be used against them in
any way.
(j) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful suspension and discipline
of Michael Besley, and within 3 days thereafter, notify the em-
ployees in writing that this has been done and that the suspen-
sion and discipline will not be used against him in any way.
(k) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(l) Within 14 days after service by the Region, post at its
Pryor, Oklahoma facility copies of the attached notice marked
“Appendix.”22 Copies of the notice, on forms provided by the
Regional Director for Region 14, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to employ-
ees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(m) Within 21 days after service by the Region, file with the
Regional Director for Region 14 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply.
Dated, Washington, D.C., September 15, 2017.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT do anything to prevent you from exercising the

22 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-
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.”
ORCHIDS PAPER PRODUCTS CO. 33
above rights.
WE WILL NOT fail or refuse to bargain in good faith with the
United Steel, Paper & Forestry, Rubber, Manufacturing, Ener-
gy, Allied Industrial and Service Workers International Union,
AFL−CIO, as the exclusive collective-bargaining representative
of Respondent’s employees at its Pryor, Oklahoma Converting
facility with the exception of executives, office, sales, clerical
employees, professional employees, guards, watchmen, and
supervisory employees as defined in the Labor Management
Relations Act of 1947, as amended.
WE WILL NOT accuse you of harassing other employees be-
cause you engage in union activities including opposing a de-
certification effort.
WE WILL NOT tell you that your lawful union and protected,
concerted activities are disrespectful to management.
WE WILL NOT create the impression that we are watching
your union or protected, concerted activities.
WE WILL NOT threaten suspension, termination, or other un-
specific reprisals because you engage in union or other protect-
ed, concerted activities.
WE WILL NOT tell employees that they have been fired be-
cause of the Union or because the Union filed a grievance seek-
ing to include them in the bargaining unit or covered by the
collective bargaining agreement.
WE WILL NOT tell employees that they are prohibited from
discussing Union issues or union business while on work time
or while on the work floor.
WE WILL NOT prohibit you from conducting union business
on the production floor in
contravention of our collective-bargaining agreement with
the Union.
WE WILL NOT prohibit employees from engaging in union ac-
tivities by prohibiting them from speaking during meetings
with management.
WE WILL NOT tell you cannot engage in union and other pro-
tected concerted activity such as reporting concerns to OSHA.
WE WILL NOT maintain a rule prohibiting you from talking to
employees from other departments except during nonwork
times.
WE WILL NOT terminate the assignment of an employee be-
cause the Union sought to include them in the unit.
WE WILL NOT discipline or suspend you because of your un-
ion membership or support or because you engaged in union
activities.
WE WILL NOT fail and refuse to comply with the provisions of
our collective-bargaining
agreement with the Union concerning the status and reten-
tion of employees who have exceeded their 60-day probation-
ary period.
WE WILL NOT fail and refuse to comply with the provisions of
our collective-bargaining agreement with the Union concerning
the conversion of existing manufacturing lines to “Op-Tech”
lines without the Union’s agreement.
WE WILL NOT refuse to put into effect changes in wages,
hours and working conditions that we have negotiated with the
Union.
WE WILL NOT change bargaining unit employees’ health in-
surance benefits or their health insurance plan without provid-
ing the Union with notice and an opportunity to bargain over
the decision and its effects.
WE WILL NOT change policies regarding flame-resistant
clothing without providing the Union with notice and an oppor-
tunity to bargain about the decision and its effects.
WE WILL NOT vaguely accuse union officers of harassing oth-
er employees.
WE WILL NOT in any like or related manner interfere with
your rights under Section 7 of the Act.
WE WILL rescind the rule which prohibited Union officials
from talking to employees in other departments, except during
non-work time.
WE WILL, upon request, bargain in good faith with the Union
as the exclusive collective-bargaining representative of our unit
employees over changes to wages, hours, and other terms and
conditions of employment.
WE WILL offer Carrie Bunnell, Rebecca Scott, John Aguilar,
Brandon Glory, and Jennifer Whisenhunt who exceeded their
60-day probationary period immediate and full reinstatement to
unit positions, without prejudice to their seniority or any other
rights and/or privileges previously enjoyed.
WE WILL pay Carrie Bunnell, Rebecca Scott, John Aguilar,
Brandon Glory, and Jennifer Whisenhunt for the wages and
other benefits they lost because we terminated their assignment,
compensate them for any adverse tax consequences of receiv-
ing one or more lump-sum payments covering periods longer
than a year, and file a report with the Social Security Admin-
istration allocating backpay to the appropriate quarters.
WE WILL apply the terms and conditions of the collective-
bargaining agreement to Carrie Bunnell, Rebecca Scott, John
Aguilar, Brandon Glory, and Jennifer Whisenhunt and any
other employees who completed their 60-day probationary
period and make them whole for any wages and other benefits
they lost as a result of our failure to apply the terms of the
agreement to them.
WE WILL remove from our files all references to the termina-
tion of assignment of Carrie Bunnell, Rebecca Scott, John
Aguilar, Brandon Glory, and Jennifer Whisenhunt and WE
WILL notify them in writing that this has been done and that the
termination of assignment will not be used against them in any
way.
WE WILL abide by the terms of our collective-bargaining
agreement concerning employees who have exceeded their 60-
day probationary period and will not change those terms with-
out the agreement of the Union.
WE WILL abide by the terms of our collective-bargaining
agreement concerning the performance of union business dur-
ing working time and will not change those terms without the
agreement of the Union.
WE WILL abide by the terms of our collective-bargaining
agreement requiring discussion and agreement with the Union
prior to converting existing manufacturing lines to “Op-Tech”
lines.
WE WILL, upon request of the Union, rescind our conversion
of Lines 6 and 7 to “Op-Tech” lines and WE WILL notify the
Union in writing that this has been done.
WE WILL, upon request of the Union, rescind changes to bar-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
gaining unit employees’ health Insurance, and WE WILL notify
the Union in writing that this has been done.
WE WILL make unit employees whole for any losses sus-
tained due to the unlawfully implemented change in the health
insurance carrier.
WE WILL, upon request of the Union, rescind changes to the
flame-resistant clothing policy requiring that covered employ-
ees wear their flame-resistant clothing at all times while on
duty, and WE WILL notify the Union in writing that this has
been done.
WE WILL make Michael Besley whole for any loss of earn-
ings and benefits he suffered as a result of his unlawful suspen-
sion on May 15, 2017.
WE WILL remove from our files all references to the May 15,
2017 suspension and May 23, 2017 discipline of Michael Bes-
ley, and WE WILL notify him in writing that this has been done
and that the suspension and discipline will not be used against
him in any way.
ORCHIDS PAPERPRODUCTS CO.
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/14-CA-184805 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling
(202) 273-1940.