Roseburg Forest Products Co.

National Labor Relations Board - Board Decisions

Nov 29, 2019

368 N.L.R.B. 124 (N.L.R.B. 2019)

368 NLRB No. 124
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.
Roseburg Forest Products Co. and Carpenters Indus-
trial Council (CIC), Local Union No. 2949. Case
19–CA–213306
November 29, 2019
DECISION AND ORDER
BY MEMBERS MCFERRAN, KAPLAN, AND EMANUEL
On October 31, 2018, Administrative Law Judge Elea-
nor Laws issued the attached decision. 1 The Respondent
filed exceptions and a supporting brief, the General Coun-
sel filed an answering brief, and the Respondent 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 exceptions and briefs and has decided to affirm
the judge’s rulings, findings,2 and conclusions3 and to
adopt the recommended Order4 as modified.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, having found that the Respondent violated
Section 8(a)(3) and (1) by suspending and discharging em-
ployee Nicholas Miller, we shall order the Respondent to
offer Miller full reinstatement to his former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed. We also shall order that the
Respondent make Nicholas Miller whole, with interest,
for any loss of earnings and other benefits that he may
have suffered as a result of the discrimination against him.

1 On November 6, 2018, the judge issued an errata correcting certain
language in the Conclusions of Law section of her decision.
2 We agree with the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by suspending and discharging Nicholas Miller for en-
gaging in protected concerted complaints about working conditions prior
to and during a meeting with the Respondent’s officials about these com-
plaints, and that the suspension and discharge also violated Sec. 8(a)(3)
because the Respondent acted against Miller in response to his commu-
nication with fellow employees on a union-moderated Facebook page.
We further agree that the four-factor analysis set forth in Atlantic Steel
Co., 245 NLRB 814 (1979), applies in determining the legality of the
Respondent’s actions. We therefore reject the Respondent’s contentions
that Miller engaged in misconduct during this meeting that would war-
rant loss of statutory protection under Atlantic Steel or that this alleged
misconduct represented an independent basis for discipline that should
have been analyzed under the dual-motivation test set forth in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981).
Backpay shall be computed in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest at the
rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). In accordance with our
decision in King Soopers, Inc., 364 NLRB No. 93 (2016),
enfd. in pertinent part 859 F.3d 23 (D.C. Cir. 2017), we
shall also order the Respondent to compensate Nicholas
Miller for his search-for-work and interim employment
expenses regardless of whether those expenses exceed in-
terim earnings. Search-for-work and interim employment
expenses shall be calculated separately from taxable net
backpay, with interest at the rate prescribed in New Hori-
zons, above, compounded daily as prescribed in Kentucky
River Medical Center, above.
Additionally, we shall order the Respondent to compen-
sate Nicholas Miller for the adverse tax consequences, if
any, of receiving a lump-sum backpay award, and file with
the Regional Director for Region 19, 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(s). AdvoServ of New Jersey,
Inc., 363 NLRB No. 143 (2016).
The Respondent shall also be required to expunge from
its files any and all references to the suspension and dis-
charge, and to notify Nicholas Miller in writing that this
has been done and that the suspension and discharge will
not be used against him in any way.
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modified
below and orders that the Respondent, Roseburg Forest
Products Co., Riddle, Oregon, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the Or-
der as modified.
1. Substitute the following for paragraph 2(b).
Member Kaplan does not pass on the judge’s finding that the Re-
spondent’s discipline and discharge of Miller also violated Sec. 8(a)(3),
inasmuch as the remedy for this violation would not materially differ
from the remedy for the 8(a)(1) violation.
3 In affirming the judge’s unfair labor practice findings, we do not
rely on her citation to Fresenius USA Mfg., 358 NLRB 1261 (2012),
which was issued by a panel subsequently found invalid by NLRB v. Noel
Canning, 573 U.S. 513 (2014).
4 In accordance with AdvoServ of New Jersey, Inc., 363 NLRB No.
143 (2016), we shall modify the judge’s recommended tax compensation
and Social Security reporting remedy by deleting the language requiring
the Respondent to file a report with the Social Security Administration
allocating backpay to the appropriate calendar quarters.
We shall also modify the judge’s remedy and recommended Order to
conform to the Board’s standard remedial language, and we shall substi-
tute a new notice to conform to the Order as modified.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
“(b) Make Nicholas Miller whole for any loss of earn-
ings and other benefits suffered as a result of the discrim-
ination against him, in the manner set forth in the remedy
section of the judge’s decision as amended in this deci-
sion.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. November 29, 2019
______________________________________
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT discharge, suspend, or otherwise discrim-
inate against any of you for engaging in union activities or
other protected concerted activities.
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, within 14 days from the date of the Board’s
Order, offer Nicholas Miller full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL make Nicholas Miller whole for any loss of
earnings and other benefits resulting from his discharge
and suspension, less any net interim earnings, plus inter-
est, and WE WILL also make him whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL compensate Nicholas Miller for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 19, 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 cal-
endar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
suspension and discharge of Nicholas Miller, and WE
WILL, within 3 days thereafter, notify him in writing that
this has been done and that the suspension and discharge
will not be used against him in any way.
ROSEBURG FOREST PRODUCTS CO.
The Board’s decision can be found at
https://www.nlrb.gov/case/19-CA-213306 or by using the
QR code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Rela-
tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.
Irene Botero, Esq., for the General Counsel.
Kyle Abraham, Esq., for the Respondent.
Katelyn Oldham, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Roseburg, Oregon, on August 29, 2018. The Carpenters
Industrial Council, Local Union 2949 (the Union, Charging
Party, or Local 2949) filed the charge on January 18, 2018, and
an amended charge on May 1, 2018. The General Counsel is-
sued the original complaint on May 30, 2018. Roseburg Forest
Products (the Respondent or RFP) filed a timely answer denying
all material allegations.
ROSEBURG FOREST PRODUCTS CO. 3
The complaint alleges the Respondent suspended and then
discharged employee Nicholas Miller for engaging in union
and/or protected concerted activities, in violation of Section
8(a)(3) and (1) of the National Labor Relations Act (the Act).
On the entire record, and after considering the briefs filed by
the General Counsel, the Respondent, and the Union, I make the
following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent has been a corporation
with an office and place of business in Riddle, Oregon (the Rid-
dle Plant), and has been engaged in the manufacture and the non-
retail sale of softwood plywood. The parties admit, and I find,
that the Respondent is 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.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and the Respondent’s Operations
The Respondent is a forest products company based in Spring-
field, Oregon, engaged in the manufacture and marketing of
wood products. The Riddle Plant, at issue here, is one of several
plants the Respondent operates in the Northwest and Southeast
United States. Employees at the Riddle Plant manufacture soft-
wood plywood.
The following unit has been certified for purposes of collec-
tive bargaining under Section 9(b) of the Act:
All of Respondent’s production, maintenance and transporta-
tion employees and all temporary and part-time employees
who perform work within the bargaining unit, excluding office
and clerical employees, and guards, supervisors, quality and
production control, technical and professional employees as
defined in the Act.
The Charging Party and the Respondent have been parties to succes-
sive collective-bargaining agreements, the most recent of which is
effective June 1, 2016, through June 1, 2020. (GC Exh. 2.)1 Roughly
430–450 bargaining employees work at the Riddle Plant.
The Local 2949 maintains a Facebook page for members to
socialize and share workplace issues. It is moderated by a group
of its members, including Sue Crawford, Jeannie Weakley (J.
Weakley), and Bill Miller. The Facebook page is restricted, with
only members who have been approved by the moderators hav-
ing access.2

1 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for the General Counsel’s exhibit; “R. Exh.” for the
Respondent’s exhibit; “GC Br.” for the General Counsel’s brief, “R. Br.”
for the Respondent’s brief, and “CP Br.” for the Charging Party’s brief.
Although I have included several citations to the record to highlight par-
ticular testimony or exhibits, I emphasize that my findings and conclu-
sions are based not solely on the evidence specifically cited but rather
are based on my review and consideration of the entire record.
2 Some union officials also have access. RFP supervisors and man-
agers are not eligible for access to the page.
3 N. Miller was the more senior of the two detail saw operators at the
Riddle plant.
Nicholas Miller (N. Miller) worked at the Riddle Plant from
November 3, 2003, until his termination on September 8, 2017.
For the 5 years preceding his termination, N. Miller worked as a
detail saw operator in the finish end department.3 He reported to
his uncle, Ken Miller (K. Miller), the supervisor of the finish end
department. K. Miller reported to Dan Cornell the finishing su-
perintendent. Cornell reported to Chad Lynch, the panel super-
intendent. Lynch reported to Tate Muir, the plant superinten-
dent, and Muir reported to Tony Ramm, the Riddle Plant man-
ager.4 During the relevant time period, Tris Thayer was the hu-
man resources (HR) supervisor5 and Deneen Dahl was the safety
manager. 6 (R. Exh. 2.)
When Ramm became the Riddle Plant manager in May 2014,
he implemented a strategy of developing a work force with
“world class behaviors.” This entailed making sure the leader-
ship team treated employees with respect and enhanced their
self-esteem through questions rather than yelling and screaming.
Once the leadership team was trained, management began setting
the same expectations for the crew members. At the end of
2015/beginning of 2016, Ramm and Dahl conducted crew meet-
ings to teach employees that they should communicate respect-
fully and avoid foul language and derogatory comments that
would tend to damage self-esteem. Edward Weakley (E. Weak-
ley), who has worked for RFP for 50 years, and is a trustee, del-
egate, and shop steward for the Union, experienced a change of
culture at the mill in the last 5–6 years, with management expect-
ing employees, including supervisors, to act in a more profes-
sional and appropriate manner.
The Respondent has a nonharassment policy, handed out dur-
ing orientation, proscribing discriminatory and/or harassing be-
havior.7 (R. Exh. 3.) As of at least June 16, 2017, the Respond-
ent has maintained social media guidelines. (R. Exh. 6.) Since
at least June 6, 2017, the Respondent has maintained an open-
door policy. (R. Exh. 7.) The social media policy and open-door
policy were likely communicated to employees on a slide during
a communication meeting.8
B. N. Miller’s Recent Background
Forrest Bray (Bray), the previous finish end supervisor sent N.
Miller home early on May 12, 2016, because he was away from
his work station. A May 13, 2016 corrective action discussion
states that N. Miller had been suspended for the rest of his shift
the previous night for job performance and failure to communi-
cate with his supervisor. N. Miller was provided with a book
called, “Question Behind the Question” which discusses how to
communicate productively. (R. Exh. 11.) In a meeting with
4 At the time of the hearing, Ramm was the general manager of the
plywood plants.
5 At the time of the hearing, Thayer worked for a different employer.
6 At the time of the hearing, Dahl was human resources manager.
7 R. Exh. 3 is the version of the nonharassment policy dated May
2017, which postdates N. Miller’s start date by more than a decade. Dahl
did not know whether N. Miller received a copy or whether any em-
ployee had signed off as receiving this policy prior to September 2017.
8 Dahl testified that typically policies are communicated on slides,
depending on whether or not they have signoff pages. Neither R. Exhs.
6 nor 7 has a signoff page for employees. R. Exh. 7 has a signature line
for the vice president of human resources only.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
Dahl, Bray, Cornell, and Thayer about this incident, N. Miller
denied fault, and instead stated he believed Bray had been harsh
with him, accusing him of shutting down his machine too often.
N. Miller called Bray a liar, and said he was lazy and worthless.9
N. Miller lost his status as a “certified buddy,” which was an
enhanced role that involved supervising a more junior employee
in locking out correctly. N. Miller’s “certified buddy” status was
taken away because he had signed off as a certified buddy for the
newer employee even though the lockout tagout had not been
done properly. During a step 1 grievance meeting, N. Miller was
told that his attitude and performance needed to improve for him
to continue to work for the Respondent.10
N. Miller received a performance assessment on December
11, 2016. The “needs improvement” box was checked more fre-
quently than in previous performance assessments, and in the
“comments” section, the loss of his certified buddy status was
noted, as was the need to improve overall on teamwork. (R. Exh.
15.)
Every quarter, Ramm closes down the mill in sections to meet
with employees. In the meetings, he discusses RFP’s perfor-
mance, including where they are doing well, and what they are
looking toward. He also gets feedback from the crew. During
such a meeting in the summer of 2017, N. Miller stated that be-
cause RFP had terminated supervisors for performance reasons,
but had kept two supervisors who had violated safety protocols,
it portrayed the image that safety was no longer a priority.
Ramm said that was N. Miller’s opinion, and N. Miller re-
sponded that he had talked to coworkers who felt the same way.
Ramm knew that one of the supervisors who had been terminated
was N. Miller’s father, and that N. Miller believed Bray should
have been terminated for safety issues. Ramm told N. Miller that
the employee meeting was an inappropriate place for him to ask
about someone else’s performance. After the meeting, Ramm
took N. Miller to his office and they had a closed-door discus-
sion. Ramm explained to N. Miller that he was unable to share
personnel files with him, but the matter had been fully investi-
gated and the Respondent had acted pursuant to the investiga-
tion. The meeting ended positively, and N. Miller was not dis-
ciplined.
C. Employee Reactions to Smoky Working Conditions
In late August and early September 2017, forest fires caused
smoky conditions in the Riddle area. Management struggled to
keep smoke out of the Riddle Plant, as it is not a sealed facility.
Employees complained, and management recognized the air
quality at the mill was not ideal. In response, management of-
fered dust masks and permitted employees to use paid time off
work or unpaid leave if they felt the conditions at the mill were
unsafe. On three occasions, the mill was closed down because
the air quality impeded visibility creating an unsafe work envi-
ronment. Based on the wind patterns impacting when smoke

9 Dahl was not on the original meeting invite but was later invited to
the meeting when it became apparent N. Miller’s certified buddy status
would be taken away.
10 Clearly, N. Miller did not get along with Bray. On the “Feedback
to Supervisor” portion of his December 2016 performance appraisal, N.
Miller stated Bray had poor communication skills, was unproductive
would enter the mill, management decided to close the doors and
windows in the evening, when the smoke was more cleared out,
until the next morning. The plant, which is not air-conditioned,
gets hot in the summer, and the temperature inside is cooler when
the plant doors can remain open. The windows and doors have
therefore typically remained open when it is hot.
When employees came to work the morning of September 5,
the doors and windows to the plant had been closed.11 N. Miller
expressed to his coworkers his belief that it was not possible to
restrict the amount of smoke coming into the plant because it is
not a sealed facility and it lacks an air filtration system. At
around 7 a.m. N. Miller asked K. Miller why the doors and win-
dows had been closed. K. Miller said management had decided
to close the windows to restrict the smoke coming into the plant.
N. Miller reiterated the beliefs he expressed to his coworkers,
said he thought closing the doors and windows was a dumb idea,
and complained that the plant would become hotter, creating an-
other safety concern.
Around 7:30 a.m., N. Miller posted the following on the Un-
ion’s Facebook page:
Apparently closing all of the doors and windows will help keep
the smoke out of the plant. Even though the plant isn't sealed
and there isn't a filtration system. This is the level of stupidity
that our management team has elevated to
(GC Exh. 4.) Eighteen employee-members reacted by hitting ei-
ther “liking” the post, or hitting a smiley or surprised emoji. An-
other member responded, “Yeah, close all the windows and
doors, but forget about all the holes and cracks in the walls.”12
N. Miller replied, “My point exactly.” Becky Smith (Smith)
posted in response, “That was done sunday (sic) and it lasted til
11. Smoke found its way in the air and wasn’t moving so around
noon 30 they called it. What’s it look like outside over there? It
was a blanket that day.” A couple of other employees chimed in
about the conditions of the plant the preceding weekend and
management’s decision to close the plant for part of the week-
end.
N. Miller then posted, “There’s no way to keep the smoke out
because it's already in there. There are huge fans sucking in air
from outside and closing the doors won’t help. It will only turn
it into a sweat shop.” Two other members “liked” this post. J.
Weakley posted that management was handing out masks, and
Dwight Williams responded, asking if they were handing out the
right ones. N. Miller posted that masks were available but had
not been handed out. Todd Fugate replied, “Musta learnt that
shit in college.” Connie Corleone added, “Safety even said
themselves in an email that the masks provided do little to noth-
ing to protect your lungs.”
CJerika Sheets posted a report showing the air quality index in
Riddle for September 5 at 11 a.m. was “very unhealthy.” Smith
responded, “What the F?!” She also posted that if employees felt
toward employees when stressed, put production before safety, was a
compulsive liar, and an overall bad supervisor. (R. Exh. 15.)
11 On September 5, the high temperature at the regional weather sta-
tion in Roseburg, Oregon, was 92, the low temperature was 65, with an
average daily temperature of 79 degrees. (Tr. 271.)
12 N. Miller believed this member was Brittany Cross, an employee at
different facility, and the daughter of one of N. Miller’s coworkers.
ROSEBURG FOREST PRODUCTS CO. 5
they needed to leave it was allowed as an unpaid plant closure.
Some other members posted comments about and pictures of the
air quality in the plant. The entire exchange among members
generated by N. Miller’s post occurred on September 5.
Dahl or another manager conducted multiple so-called “glass
wall” meetings with the employees about the air quality and vis-
ibility in the Riddle Plant. Around 11 a.m. on September 5, Dahl,
accompanied by Lynch, conducted a meeting with the finish-end
employees in the lunchroom. Dahl said she understood there
were concerns about the smoke and how management was trying
to deal with it by shutting the windows and the doors. N. Miller
expressed his belief that it was silly and/or stupid to believe that
shutting the doors and windows would keep smoke out of the
mill.13 Dahl agreed this was not alleviating the problem, and ex-
pressed that she was out of ideas, and asked the employees for
their ideas. None of the employees offered ideas or otherwise
spoke.
D. N. Miller’s Suspension and Termination
An employee took a screenshot of N. Miller’s September 5
Facebook post and sent it to Dahl at 11:04 a.m. on September 6.
(R. Exh. 4.) Around that same time, Thayer and Dahl decided to
meet with N. Miller. K. Miller instructed N. Miller to accom-
pany him to Thayer’s office. Thayer called E. Weakley to rep-
resent N. Miller during the meeting and told him it concerned N.
Miller’s Facebook post.14 Present for management were Dahl,
Thayer, K. Miller, Lynch, and Dathen Walker, a safety techni-
cian.15
The meeting started out with Dahl asking N. Miller about his
Facebook comments.16 Dahl testified as follows:
Q How did the meeting start?
A I started the meeting and I said, Nick, you
know I met with you yesterday. Went through our conver-
sation, around, hey, here’s what we’re doing, here's why
we're doing it and here's what we’re trying to accomplish
with closing the doors and closing the windows. I said, I
feel like we had a very positive outcome. Nick, you and I

13 N. Miller said he did not speak during the meeting, but I credit Dahl
on this point. N. Miller admittedly was not paying much attention as he
was eating his lunch. By contrast, Dahl’s recollection of N. Miller saying
it was silly to think closing the doors and windows would keep out the
smoke was unequivocal and certain. (Tr. 108.)
14 E. Weakley’s testimony that Thayer called him to the meeting to
discuss the Facebook comment is uncontradicted and is supported by his
contemporaneous notes. (GC Exh. 6.) Thayer testified the meeting was
held because of reports of derogatory comments from N. Miller’s
coworkers and the Facebook post.
15 None of the witnesses who were in the meeting had clear recall of
precisely who was there. Dahl listed the employees she recalled had been
present, but then qualified it by saying, “To the best of my recollection.”
(Tr. 139.) Thayer listed those who were present, prefaced by “Best of
my recollection . . .” and said he thought he was missing one person in
addition to those he listed. (Tr. 195.) N. Miller listed who was present,
but could not remember one individual’s name, and thought there was
also an additional person present. (Tr. 74–75.) N. Miller also thought
Kevin Craig, the superintendent over drying, was there, and E. Weakley
thought Craig may have been present but was not sure. (Tr. 26.) E.
Weakley recalled another employee, Alice Briggs, was also present, but
the weight of the evidence indicates she was not.
are in agreement, it’s not a great plan, I understand that.
And I said, you know, do you remember yesterday when I
asked you, you know, hey, if you have any solutions or sug-
gestions, please come see me, he said, yes. And then I asked
Eddie Weakley, you know, do you remember me having
that conversation with Nick, and he said, I do.17 And I said,
Nick, I’ve been made aware that you had posted on Face-
book about, you know, managements stupid and, you know,
you think it’s a terrible idea, you know, do you have other
concerns, you know, I'm confused where this post came
from. We just talked about this. So—
Q And how did he respond?
A He started to get frustrated, said, I could post
whatever I want.
I said, I agree. It’s not—I don’t care about the post. I’m
trying to resolve your issue, which seems like it’ the same
issue we had yesterday when we kind of understood I don’t
know what else to do. We’re kind of stuck here. And I said,
you know, to say that I’m stupid after you didn’t have any
other solution either, and he said, you know, Deneen, I
don’t think you’re stupid and I don’t think Chad Lynch is
stupid. He didn’t call him Chad Lynch, he said Chad. But
he said the rest of the management team is a bunch of idiots.
(Tr. 140–141.) After going back and forth, N. Miller said they
weren’t getting anywhere, and held up his arms. Dahl agreed
they were not making any headway. Dahl left the meeting briefly
and went to her office across the hall.18 During the exchange,
voices were raised, but nobody used profanity or threatening lan-
guage, and nobody left their seats.19 At Thayer’s request, N.
Miller and E. Weakley left the room for about 10 minutes while
management, including Dahl who had returned to the meeting,
caucused.20 When they reconvened, Thayer told N. Miller he was
suspended pending investigation.
On September 8, Thayer called N. Miller and told him he had
been terminated. Ramm is vested with the authority to terminate
16 Dahl’s testimony and E.Weakley’s notes both indicate that the
meeting started this way.
17 Dahl thought N. Miller’s Facebook posting occurred after the Sep-
tember 5 meeting with the finish end employees rather than earlier that
morning
18 Dahl and Thayer conveyed that N. Miller became louder and more
frustrated during the meeting. N. Miller and E. Weakley testified that
Dahl and N. Miller both spoke with elevated voices. It is clear to me the
exchange was somewhat heated, but that no party lost control or ap-
proached the level of becoming violent.
19 Dahl testified that N. Miller’s face was red, and he was tilted back
in his chair with his arms folded. Dahl and Thayer testified that they
were unable to calm N. Miller down during the meeting. N. Miller and
E. Weakley dispute that N. Miller was ever out of control. Considering
the testimony of all who were present, and as detailed in the analysis
below, both N. Miller and Dahl were upset, and acted within the bounds
of normal behavior in what commenced as a contentious setting.
20 Dahl testified that N. Miller expressed frustration that RFP never
listened to his ideas. I do not find the issue of whether N. Miller in fact
made such comments material to the outcome of this case, as discussed
below.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
employees. In making his recommendation to Ramm to termi-
nate N. Miller, Thayer primarily relied on what had transpired at
the September 6 meeting, but also relied in part on N. Miller’s
attendance, performance, and the comment he made in the crew
meeting. Ramm made the decision to terminate N. Miller based
on Thayer’s input. Ramm also spoke with Dahl, Muir, Lynch,
and K. Miller. In addition, Ramm considered the comment N.
Miller had made about management keeping the bad supervisors
and letting go of the good ones. Ramm looked at N. Miller’s
performance reviews as well as his past discipline and deter-
mined that N. Miller had a pattern of difficulty following instruc-
tions and treating people respectfully.
Pursuant to the Respondent’s termination records, the reason
for N. Miller’s termination was “Violation of Company Loy-
alty.” (GC Exh. 5; R. Exh. 16.) Thayer completed and signed
the employee termination record, and checked the box indicating
that N. Miller had violated company loyalty because that best
represented the reason for his termination.21 Thayer did not
check boxes on the form indicating performance, absenteeism or
tardiness, failure to follow work instructions, communication is-
sues, or violation of company policy as a reason for N. Miller’s
termination.
E. Other Employees’ Social Media Posts and
Workplace Comments
Around September 6, Dahl told Smith the language she used
in connection with N. Miller’s post did not represent her very
well. In addition to the comments detailed above, Smith posted
at 7:37 a.m. on September 5, as part of the screenshot sent to
Dahl:
This won’t last long. . . . I have been on the receiving (sic) end
of my employers displeasure not once, but twice due to posts
on this site. I sure hope you feel you look better. There will not
be a 3rd time. Soon as i hit post, I’m removing myself. They
never said who you are, i didn’t ask, i don’t care. You know
who you are . . . GO FUCK YOURSELF!
(R. Exh. 4.) Dahl spoke with Smith, who agreed the post
did not reflect well on her. The conversation was posi-
tive and ended with the two hugging.22
Back in June 2015, employee Scott McCool posted the fol-
lowing to a group called “Umpqua Chatters”:
Thank you Roseburg for the big glass of suck you poured that
we all get to quaff from.
The hard hats are wonderful in 90-100 degree temperatures,
and the big suck ass glasses over our own glasses just can't be
beat for comfort.
Hats off to you in your air conditioned offices who made these
choices.
(R. Exh. 5.) Ramm spoke to McCool about the post.23
On November 15, 2016, employee Jay Milburn posted on his
Facebook page the following: “Thank you everyone for all the

21 The Union filed a grievance over N. Miller’s termination.
22 Dahl initially testified that Smith had apologized, but later testified
she was not sure she had apologized but had agreed it reflected poorly
on her.
birthday wishes. i really appreciated them, even if I had to work.
Couldn’t call in sick, didn’t seem right. . . . this time anyway.”
(R. Exh. 8.) Dahl saw this post because she and Milburn are
Facebook friends. She responded on Facebook, Happy late birth-
day Jay Milburn, glad you got to spend the day with us! Your
smile makes everyone’s day!”, followed by a smiley emoji. Mil-
burn was not disciplined for his post.
In March of 2017, employee Linda Wright showed Dahl a Fa-
cebook post from Smith about her supervisor, Forrest Bray, ask-
ing to do something she found unsafe. Smith had already re-
ported the incident to Dahl. Dahl spoke with Smith in the HR
office and let her know the incident was being investigated.
Smith was not disciplined, and Bray was suspended for a week.
A later video determined that Smith and her coworker Rusty had
lied and were doing the exact same thing for which they had ac-
cused Bray. Neither Smith nor Rusty were disciplined because
management determined Bray should have stopped them.
On September 3, 2017, Wright showed Dahl another Face-
book post Smith made about the poor air quality in the plant,
accompanied by a picture of the smoky conditions inside the
plant. (R. Exh. 9.) Muir spoke to Smith about posting this and
another picture of the plant, because posting pictures from inside
the mill is only allowed with prior permission. Smith was disci-
plined for taking a picture from outside the facility because she
did not clock
Employee R.C. Jenkins posted a picture of the smoky condi-
tions inside the facility on his personal Facebook page. (R. Exh.
10.) Dahl talked to Jenkins, who apologized and removed the
photo. He was not disciplined.
Employee Mike Axtel made derogatory comments about RFP,
supervisors, and new hires. Ramm spoke to Axtel about his com-
ments but did not discipline him.
Ramm suspended Nick Parker, a front-line supervisor, for
making a harsh sarcastic comment to an employee. The em-
ployee had raised concerns about hitting his head on a bolt hang-
ing down from a beltway, and the supervisor responded, “Well,
duck next time.”
III. DECISION AND ANALYSIS
A. Credibility
Evaluation of the issues in this case requires assessment of
witness credibility. A credibility determination may rest on var-
ious factors, including “the context of the witness’ testimony, the
witness’ demeanor, the weight of the respective evidence, estab-
lished or admitted facts, inherent probabilities and reasonable in-
ferences that may be drawn from the record as a whole.” Hills
& Dales General Hospital, 360 NLRB 611, 617 (2014), citing
Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001). In making credibil-
ity resolutions, it is well established that the trier of fact may be-
lieve some, but not all, of a witness’s testimony. NLRB v. Uni-
versal Camera Corp., 179 F.2d 749 (2d Cir. 1950).
The Board has agreed that “when a party fails to call a witness
23 Dahl did not know the nature of the conversation Ramm had with
McCool, and Ramm did not provide testimony on the topic.
ROSEBURG FOREST PRODUCTS CO. 7
who may reasonably be assumed to be favorably disposed to the
party, an adverse inference may be drawn regarding any factual
question on which the witness is likely to have knowledge.” In-
ternational Automated Machines, 285 NLRB 1122, 1123 (1987),
enfd. 861 F.2d (6th Cir. 1988). This is particularly true where
the witness is the Respondent’s agent. Roosevelt Memorial Med-
ical Center, 348 NLRB 1016, 1022 (2006). Moreover, an ad-
verse inference is warranted by the unexpected failure of a wit-
ness to testify regarding a factual issue upon which the witness
would likely have knowledge. See Martin Luther King, Sr. Nurs-
ing Center, 231 NLRB 15, 15 fn. 1 (1977) (adverse inference
appropriate where no explanation as to why supervisors did not
testify); Flexsteel Industries, 316 NLRB 745, 758 (1995) (failure
to examine a favorable witness regarding factual issue upon
which that witness would likely have knowledge gives rise to the
“strongest possible adverse inference” regarding such fact).
Testimony from current employees tends to be particularly re-
liable because it goes against their pecuniary interests. Gold
Standard Enterprises, 234 NLRB 618, 619 (1978); Georgia Rug
Mill, 131 NLRB 1304, 1304 fn. 2 (1961); Gateway Transporta-
tion Co., 193 NLRB 47, 48 (1971); Federal Stainless Sink Divi-
sion, 197 NLRB 489, 491 (1972).
It is impossible to reconcile all of the different recollections
of the witnesses for both sides. In evaluating the various differ-
ent versions of events, I have fully reviewed the entire record and
carefully observed the demeanor of all the witnesses. I have con-
sidered the apparent interests of the witnesses; the inherent prob-
abilities in light of other events; corroboration or the lack of it;
consistencies or inconsistencies within the testimony of each
witness and between witnesses with similar apparent interests.
See, e.g., NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962).
Testimony in contradiction to my factual findings has been care-
fully considered but discredited. My credibility findings are in-
corporated into my legal analysis below on certain relevant top-
ics. In line with Universal Camera Corp., I do not in blanket
fashion fully credit or discredit the various witnesses who testi-
fied on the most material matter before me—i.e. what precisely
occurred at the September 6 meeting, as specified below.
B. Discipline Arising out of Protected Activity Analysis
Most cases involving alleged discriminatory discipline are an-
alyzed under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989, approved in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). The Board has held, however, that Wright Line does not
apply to situations where a causal connection between the em-
ployee’s protected activity and the employer’s conduct that is al-
leged to be unlawful may be presumed. See, e.g., Aluminum Co.
of America, 338 NLRB 20, 22 (2002); Atlantic Scaffolding Co.,
356 NLRB 835, 839 (2011). An employee’s discipline inde-
pendently violates Section 8(a)(1), regardless of the employer’s
motive or a showing of animus, where “the very conduct for
which employees are disciplined is itself protected concerted

24 N. Miller’s action of raising the complaint with management distin-
guishes the Facebook conversation from the unprotected activity of
“mere griping” unaccompanied by action or contemplation thereof. (See
cases cited in R Br. pp. 30–31.)
activity.” Burnup & Sims, Inc., 256 NLRB 965, 976 (1981). Fur-
thermore, when an employee is disciplined for conduct that is
part of the res gestae of his protected concerted activities, “the
pertinent question is whether the conduct is sufficiently egre-
gious to remove it from the protection of the Act.” Stanford NY,
LLC, 344 NLRB 558 (2005); Aluminum Co. of America, supra.
An employee’s leeway for impulsive behavior when engaging
in protected activity is not without limit and is subject to the em-
ployer's right to maintain order and respect in the workplace. See
Piper Realty Co., 313 NLRB 1289, 1290 (1994); NLRB v. Ben
Pekin Co., 452 F.2d 205, 207 (7th Cir. 1991); NLRB v. Power
Tool Co., 351 F.2d 584, 587 (7th Cir. 1965). The standard for
determining whether specified conduct is removed from the pro-
tections of the Act is whether the conduct is “so violent or of
such serious character as to render the employee unfit for further
service.” St. Margaret Mercy Healthcare Centers, 350 NLRB
203, 204–205 (2007), quoting NLRB v. Illinois Tool Works, 153
F.2d 811, 815 (7th Cir. 1946); See also Hawthorne Mazda, 251
NLRB 313, 316 (1980), and cases cited therein; Severance Tool
Industries, 301 NLRB 1166, 1170 (1991); Aroostook County Re-
gional Ophthalmology Center 317 NLRB 218, 220 (1995), enf.
denied in part 81 F.3d 209 (D. C. Cir. 1996); Health Care & Re-
tirement Corp., 306 NLRB 66, 65 (1992) (Foul language or epi-
thets directed to a member of management insufficient to require
forfeiting employees protection under Sec. 7).
Application of the above framework depends on whether it is
appropriate to assume a causal relationship between N. Miller’s
protected activity and the discipline he received. The questions
that arise, then, are first whether N. Miller’s Facebook post and
ensuing conduct were protected and remained so, and second
whether this activity may be presumed as the reason for the al-
leged unlawful discipline.
N. Miller clearly engaged in protected activity by complaining
about the smoke in the Riddle Plant and management’s response
to it. He complained orally to employees and supervisors, and
on the Union’s Facebook page, about the smoky conditions, ex-
acerbated by the hot environment closing the doors and windows
created. Undeniably, his concerns were shared by other em-
ployee union members, as the Facebook string, including em-
ployees’ reactions to N. Miller’s posts, shows. See Meyers In-
dustries (Meyers I), 268 NLRB 493 (21984), reversed sub nom
Prill v. NLRB, 755 F. 2d 941 (D.C. Cir. 1985), cert. denied 474
U.S. 948 (1985), on remand Meyers Industries (Meyers II), 281
NLRB 882 (1986), affd. sub nom Prill v. NLRB, 835 F. 2d 1481
(D.C. Cir. 1987), cert. denied 487 U.S. 1205 (1988). N. Miller’s
individual complaint to his supervisor and his affirmation of his
Facebook post to the supervisors and managers at the September
meeting were “logical outgrowth[s] of the concerns of the group”
and were thus concerted.24 Every Woman’s Place, 282 NLRB
413 (1986); Mike Yurosek & Son, Inc., 306 NLRB 1037, 1038
(1992), after remand, 310 NLRB 831 (1993), enfd. 53 F.3d 261
(9th Cir. 1995). I find, therefore, N. Miller engaged in protected
concerted activity and union activity.25
25 In addition to raising his complaints on the Union Facebook page,
N. Miller’s complaint falls within the definition of union activity because
the collective-bargaining agreement between the Union and the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
As to whether N. Miller lost the Act’s protections by virtue of
his behavior, I find he squarely did not.
With regard to activity on social media, including Facebook
posts, the Board evaluates whether they were sufficiently dis-
loyal, reckless, or maliciously untrue as to lose the Act’s protec-
tion. Jefferson Standard, 346 US 464 (1953); Linn v. Plant
Guards Local 114, 383 US 53 (1966); Triple Play Sports Bar,
361 NLRB 308 (2014).26 In Triple Play Sports Bar, employees
of a bar were part of a Facebook discussion lamenting the taxes
they owed because of the owner’s errors. Most parallel to the
situation here, employee Sanzone chimed in, “I owe too, such an
asshole.” and was terminated for disloyalty. The Board found
the employer violated the Act, as Sanzone’s reference on another
employee’s Facebook page to the bar’s owner as an “asshole”
was not sufficiently egregious to warrant her termination. The
first factor the Board considered was that the Facebook discus-
sion was about an ongoing dispute over the employer’s tax-with-
holding practices. Here, the discussion was about an ongoing dis-
pute over management’s response to the smoky work environ-
ment. Second, the Board noted that the Sanzone’s comment was
not directed to the general public, but was made on an individ-
ual’s personal page “rather than, for example, a company page
providing information about its products or services.” Id. at 312.
The same is true here, as the comment was made on a Facebook
page not open to the public or even the Respondent’s supervisors
and managers. Significantly, the Board in Triple Play stated:
Where, as here, the purpose of employee communications is to
seek and provide mutual support looking toward group action
to encourage the employer to address problems in terms or con-
ditions of employment, not to disparage its product or services
or undermine its reputation, the communications are pro-
tected. See Valley Hospital, 351 NLRB at 1252 fn. 7, and cases
cited therein.
Id. N. Miller’s comment that unnamed management exercised
stupidity by closing the Riddle Plant’s doors and windows was
made on a closed Facebook page intended for union members.
It was milder in nature and less pointed in its target than the com-
ment the Board found protected in Triple Play.
In Pier Sixty, 362 NLRB 505 (2015), the Board approved the
judge’s consideration of multiple factors when considering
whether a Facebook post violated the Act. Applicable here, and
not addressed elsewhere in this decision, are the related factors
of whether the Respondent considered language similar to that

Respondent contains a safety clause. Wheeling-Pittsburgh Steel Corp.,
277 NLRB 1388, enfd. 821 F.2d 342 (6th Cir. 1987).
26 The legal paradigm for determining whether social media posts lose
protection is different than the legal paradigm for workplace interactions.
This case presents both, though they are inextricably intertwined. I have
utilized both paradigms, but in cases where the protected communica-
tions take multiple forms, consideration of the totality of the circum-
stances makes the most sense.
27 The other factors are substantively addressed in other sections, as
their analyses are relevant to considerations in other legal frameworks,
and not unique to the context of a Facebook post in a closed group. The
location, subject matter and nature of the Facebook post are considered
in the Triple Play analysis. The other factors, i.e. whether the record
contained any evidence of the Respondent’s antiunion hostility; whether
used by the employee to be offensive, and whether the Respond-
ent maintained a specific rule prohibiting the language at issue.
27 I agree with the Respondent that the evidence establishes a
culture at RFP that did not tolerate employees demeaning or in-
sulting each other. N. Miller’s Facebook statement that managers
were acting stupidly was more frowned upon at RFP than it
would likely have been at most other industrial plants.28 This
weighs against protection.
Regarding whether the Respondent maintained a specific rule
or policy prohibiting the language at issue, the Respondent
points to its non-harassment and open door policies.29 The non-
harassment policy states that RFP will “not tolerate behavior that
is inappropriate” and “[e]ach and every employee is expected to
conduct themselves in an appropriate, professional manner.” (R.
Exh. 3.) While this policy could arguably be read to prohibit N.
Miller from commenting on Facebook that management had
made a stupid decision in closing the doors and windows, the
context of a closed Union-based forum must be considered.30 In
a forum where it is abundantly clear the employees vent their
frustrations to each other, N. Miller’s relatively tame comment
is not out of place at all.
The Respondent’s open-door policy states in relevant part, “it
is important that you have a way to address work-related issues.
We strongly believe that by working together, we can resolve
almost any question or concern that may arise. If you have a
problem or concern, we want you to tell us.” (R. Exh. 7.) This
policy does not address N. Miller’s situation, as he both made
the Facebook post and shared his complaint with management.
This factor therefore weighs in favor of protection.
Considering the totality of the circumstances, I find that N.
Miller’s Facebook post was at all times protected.
Turning to N. Miller’s behavior at the meeting, I will first ad-
dress the relationship between: (a) the Facebook post and the re-
lated verbal complaints about management’s response to the
smoke at the facility; and (b) the affirmation of these complaints
at the September 6 meeting. I find the September 6 meeting was
part of the course of N. Miller’s protected activity. It is undis-
puted that the meeting was called contemporaneously with Dahl
receiving the screenshot of the Facebook post. Thayer told Un-
ion Steward E. Weakley he wanted him at the meeting because
of N. Miller’s Facebook post. The meeting commenced with N.
Miller being asked about the Facebook post. It was obviously
convened to address N. Miller’s Facebook post. For the Re-
spondent to say that it was simply a meeting to gather
the Respondent provoked Miller’s conduct; whether Miller’s conduct
was impulsive or deliberate; and whether the discipline imposed upon
Perez was typical of that imposed for similar violations or disproportion-
ate to his offense, are considered as part of the totality of the circum-
stances.
28 His statements in the meeting do not fall into this paradigm.
29 The Respondent also points to RFP’s core values: Sawdust in the
Veins, Handshake Integrity, Driven to Win. These clearly do not, at least
explicitly, prohibit the language in N. Miller’s Facebook post. The Re-
spondent does not assert that the language in N. Miller’s Facebook post
specifically violated its social media policy.
30 I note the Pier Sixty factors are for social media posts, not in person
meetings, which are still governed by Atlantic Steel Co., infra.
ROSEBURG FOREST PRODUCTS CO. 9
information about N. Miller’s concerns about the smoke in the
facility and was somehow attenuated from his Facebook post and
his related complaint to his supervisor defies reason.31
Regarding what N. Miller said, I credit the testimony of Dahl
and Thayer that N. Miller referred to unnamed management,
with the exception of a couple specified managers, as “dumb”,
“stupid”, “idiots” or like terms during the September 6 meeting.
Dahl’s testimony on this point, detailed above, was very specific
and convincing, and was corroborated. N. Miller and E. Weak-
ley’s blanket denials were less persuasive, particularly in light of
the fact that N. Miller quite clearly referred to management as
acting stupidly in his Facebook post, and expressed his belief to
K. Miller that it was a dumb idea to close the doors and win-
dows.32
Because the meeting in which N. Miller’s alleged unprotected
conduct occurred in person at the workplace, the factors set forth
in Atlantic Steel Co., 245 NLRB 814, 816 (1979), apply. Under
Atlantic Steel, the Board considers the following factors to de-
termine whether an employee loses the Act’s protection: (1) the
place of the discussion; (2) the subject matter of the discussion;
(3) the nature of the employee’s outburst; and (4) whether the
outburst was, in any way, provoked by an employer’s unfair la-
bor practice.
Here, the place of the discussion was a closed-door meeting in
the human resources office with several managers, including the
top human resources official at the Riddle Plant, where manage-
ment had summoned the union steward. This weighs in the Gen-
eral Counsel’s favor. See, e.g., Stanford Hotel, supra ( Discus-
sion occurring in private location away from the normal work
area and other employees, causing no disruption to order or dis-
cipline in the workplace, weighs in favor of protection).
Second, the subject matter of the discussion was the Facebook
post, the subject matter of which, in turn, concerned complaints
related to working conditions at the Riddle Plant. Because the
subject matter of the meeting was N. Miller’s concerted pro-
tected/union activity, the second factor strongly militates in fa-
vor of finding that N. Miller’s remarks retained Act’s protection.
See Fresenius USA Mfg., 358 NLRB 1261, 1266 (2012). The
Respondent argues that N. Miller proceeded to go on a “rant”
about how management never listens to his ideas and he would
be better off working somewhere else. This does not change the
fact, however, that the meeting was called to discuss N. Miller’s
Facebook post, and the evidence shows that the Facebook post,
including the working conditions it addressed, was the crux of
the meeting. Moreover, Dahl’s testimony demonstrates that N.
Miller’s comments were initially made in response to being con-
fronted about his Facebook page. I do not find it significant that
N. Miller, who by all accounts had become frustrated after being
confronted with the private Facebook post someone had surrep-
titiously shared with management, may have reiterated his com-
ments as the conversation strayed to his other workplace frustra-
tions. It does not negate that the meeting was called to address,
and did in fact address, the Facebook post and N. Miller’s

31 In this regard, I find management’s act of calling E. Weakley to the
meeting at its outset telling.
32 There is no dispute that N. Miller stood by his Facebook comments
during the meeting.
expressions of dismay over management’s decision to deal with
the smoke at the facility by closing the doors and windows, re-
sulting in elevated temperatures. See Plaza Auto Center, Inc. v.
NLRB, 664 F.3d 286 (9th Cir. 2011).
Turning to the third factor, the nature of the outburst, N. Miller
reiterated the comments on his Facebook post which called man-
agement, with two exceptions, stupid. While his voice may have
been elevated, he did not leave his seat or make any threats. N.
Miller referring to management as “stupid” is certainly not some-
thing to be condoned. It was, however, a relatively mild expres-
sion made out of frustration, devoid of profanity, vulgar or ob-
scene language. The Respondent asserts that N. Miller had to be
told to calm down a few times. By any account, however, N.
Miller was acting within the bounds of reason in the context of
having been called to a meeting with multiple managers and a
union steward and confronted with his Facebook post. At most,
he raised his voice, interrupted Dahl, sat tilted back with his arms
folded, and held up his arms in exasperation when he and Dahl
reached an impasse.33 Postal Service, 250 NLRB 4, 6 (1980)
(calling acting manager a “stupid ass” in a grievance meeting
was part of the res gestae of the protected discussion); Mini-
Togs, Inc., 304 NLRB 644 (1991)(applying Postal Service be-
yond the grievance setting); Burle Industries, 300 NLRB 498
(1990), enfd. 932 F.2d 958 (3d Cir. 1991) (Employee did not
forfeit protection when, in the course of encouraging employees
to leave the facility due to a possible chemical spill, he called a
supervisor a “f’ing asshole” for wanting employees to work de-
spite the fumes). The relatively mild nature of N. Miller’s gen-
eralized comments weighs in favor of continued protection.
Finally, I must consider whether N. Miller’s comments were,
in any way, provoked by an unfair labor practice. While no un-
fair labor practice had yet occurred, N. Miller’s comments were
contemporaneous with and provoked by being confronted by nu-
merous managers about his protected concerted/union activity.
Plaza Auto Center, supra. Accordingly, considering the Atlantic
Steel factors and the totality of the circumstances, I find that N.
Miller’s remarks retained the Act's protection.
Based on the foregoing, because preponderant evidence estab-
lishes that N. Miller was terminated for conduct that was part of
the res gestae of his protected concerted and union activities, I
find the General Counsel has met her burden to prove a violation
of Section 8(a)(3) and (1) as alleged.
C. Mixed-Motives Analysis
Though I do not find Wright Line applies to the instant case
because the discipline directly resulted from N. Miller’s pro-
tected activity, I will do an alternative Wright Line analysis in
the event a reviewing authority disagrees with me. Wright Line
governs mixed-motive cases where discriminatory intent is al-
leged. Under Wright Line, the General Counsel must initially
prove an employee’s Section 7 activity was a motivating factor
in the employer’s adverse employment action against the em-
ployee. The elements required to support the General Counsel’s
initial showing are the employee’s union or other protected
33 The tendency of people to naturally interrupt is readily apparent
from this and any other transcript of litigation.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
concerted activity, employer knowledge of that activity, and em-
ployer animus. If this is accomplished, the burden shifts to the
employer “to demonstrate that the same action would have taken
place even in the absence of the protected conduct.” 251 NLRB
at 1089.
Unlawful employer motivation may be established by circum-
stantial evidence, including, among other things: (1) the timing
of the employer’s adverse action in relationship to the em-
ployee’s protected activity; (2) the presence of other unfair labor
practices; (3) statements and actions showing the employer’s
general and specific animus; (4) the disparate treatment of the
discriminatees; (5) departure from past practice; and (6) evi-
dence that an employer’s proffered explanation for the adverse
action is a pretext. See Golden Day Schools v. NLRB, 644 F.2d
834, 838 (9th Cir. 1981); NLRB v. Rain-Ware, Inc., 732 F.2d
1349, 1354 (7th Cir. 1984) (timing); Mid-Mountain Foods, Inc.,
332 NLRB 251, 260 (2000), enfd. mem. 169 LRRM 2448 (4th
Cir. 2001); Richardson Bros. South, 312 NLRB 534 (1993)
(other unfair labor practices); NLRB v. Vemco, Inc., 989 F.2d
1468, 1473–1474 (6th Cir. 1993); Affiliated Foods, Inc., 328
NLRB 1107 (1999)(statements showing animus); Naomi Knit-
ting Plant, 328 NLRB 1279, 1283 (1999)(disparate treatment);
JAMCO, 294 NLRB 896, 905 (1989), affd. mem. 927 F.2d 614
(11th Cir. 1991), cert. denied 502 U.S. 814 (1991) (departure
from past practice); Wright Line, 251 NLRB at 1089; Roadway
Express, 327 NLRB 25, 26 (1998) (disparate treatment). An-
other indicator of unlawful motivation is shifting explanations
for a personnel action. See City Stationery, Inc., 340 NLRB 523,
524 (2003) (nondiscriminatory reasons for discharge offered at
the hearing were found to be pretextual where different from
those set forth in the discharge letters); GATX Logistics, Inc., 323
NLRB 328, 335 (1997) (“Where . . . an employer provides in-
consistent or shifting reasons for its actions, a reasonable infer-
ence can be drawn that the reasons proffered are mere pretexts
designed to mask an unlawful motive.”).
N. Miller’s protected concerted activity and union activity is
established, as discussed above. With regard to employer
knowledge, the Respondent asserts that Ramm, the ultimate de-
cisionmaker, did not know about the Facebook post. It is well
established, however, that “the Board imputes a manager’s or su-
pervisor’s knowledge of an employee’s protected concerted ac-
tivities to the decisionmaker, unless the employer affirmatively
establishes a basis for negating such imputation.” G4S Secure
Solutions, 364 NLRB No. 92 (2016); See also, Dobbs Interna-
tional Services, 335 NLRB 972, 973 (2001); Vision of Elk River,
Inc. 359 NLRB 69, 72 (2012), reaffirmed and incorporated by
reference in 361 NLRB 1395 (2014). It is undisputed all the
managers and supervisors in the September 6 meeting knew
about N. Miller’s protected activity. Thayer checked the box in-
dicating the reason for the termination and signed it as the super-
visor. It is abundantly clear that even if Ramm was the actual
decisionmaker, he acted on the information that was fed to him
about the meeting. He was not at the Riddle Plant on September
6, but somehow was able to testify that the meeting “was not a
disciplinary discussion at all. It was really a discussion to

34 This is not a strong indicator of animus, as Ramm had good reason
to believe N. Miller had an axe to grind about his father’s termination.
troubleshoot.” (Tr. 247.) Ramm knew at the very least that the
meeting was to address N. Miller’s comments concerning man-
agement’s response to the smoky plant. The evidence is insuffi-
cient to establish an affirmative basis for declining to impute
knowledge.
Turning to animus, the Board has held that where, as here, ad-
verse action occurs shortly after an employee has engaged in pro-
tected activity an inference of unlawful motive is raised. La Glo-
ria Oil & Gas Co., 337 NLRB 1120 (2002), enfd. 71 Fed.Appx.
441 (5th Cir. 2003); Kag-West, LLC, 362 NLRB 981 (2015).
Here, Dahl received the snapshot of the Facebook post, and she
and Thayer immediately convened a meeting with N. Miller and
multiple supervisors and managers and involved a union stew-
ard. The timing could not be more telling.
In addition, the record reflects that the Respondent took um-
brage at the content of N. Miller’s Facebook post, not just his
tone and behavior at the September 6 meeting. Dahl’s testimony
clearly shows that she was upset about the content of the Face-
book post, despite assertions to the contrary.
In addition, Ramm’s reaction to N. Miller’s comment express-
ing concern about RFP retaining supervisors who don’t value
safety in the 2017 employee meeting is evidence of animus to-
ward employees raising concerted workplace concerns. I credit
N. Miller’s testimony that he said he and other employees shared
the concern that safety was no longer a priority. His recollection
was specific and clear. Ramm, by contrast, did not recall
whether or not N. Miller was speaking just for himself or also on
behalf of coworkers. Moreover, this concern had been raised by
Smith, who posted on Facebook and spoke to Dahl about Bray’s
unsafe practices in March 2017. Of course Ramm was not obli-
gated to engage N. Miller in a conversation about the reasons
some supervisors were retained and others were not, as these are
personnel matters employees cannot be privy to. His character-
ization of N. Miller’s comment as “inappropriate” in the group
setting, however, sent the message to employees that raising con-
cerns about RFP’s actions concerning its supervisors’ safety
practices was prohibited.34
The Respondent’s disparate treatment of employee Mike Ax-
tel, who made derogatory comments about the company, super-
visors, and new employees but received no discipline also points
to animus.
The inconsistencies in the explanations for N. Miller’s termi-
nation likewise are evidence of unlawful motivation. N. Miller’s
termination record states it was for “Violation of Company Loy-
alty”, which fits well if he was terminated for the protected ac-
tivity of complaining about management’s response to the smoke
situation at the plant. It does not fit well if he was fired for the
myriad of reasons the employer offered at the hearing, discussed
below.
Because the General Counsel has established a prima facie
case, the burden shifts to the employer “to demonstrate that the
same action would have taken place even in the absence of the
protected conduct.” Wright Line, supra, at 1089. The employer
cannot carry this burden merely by showing that it also had a
legitimate reason for the action, or that it could have taken the
Nonetheless, in the context of an employee meeting, N. Miller’s com-
ment should not have been called out as inappropriate.
ROSEBURG FOREST PRODUCTS CO. 11
action, but must persuade by a preponderance of the evidence
that the action would have taken place absent the protected ac-
tivity. Dentech Corp., 294 NLRB 924, 956 (1989); Structural
Composites Industries, 304 NLRB 729, 730 (1991).
The Respondent contends that N. Miller was terminated for a
pattern of behavior, attendance, and performance problems, in-
dicating a pattern of difficulty following instructions and treating
people respectfully.
To buttress this claim, the Respondent points to other employ-
ees who posted on social media but were not disciplined or were
disciplined less harshly. It is not clear whether the “Umpqua
Chatters” platform where employee McCool made his comments
was public or private. It is also not a matter of record what Ramm
said when he met with McCool to discuss the post.35 As such, I
do not find his situation was sufficiently similar to N. Miller’s to
warrant meaningful comparison. Employee Milburn simply
commented that he couldn’t call in sick on his birthday, implying
he had contemplated it. This is not comparable to N. Miller’s
post in any way.
In addition, the evidence shows that management confronted
employee Becky Smith about the September 5 Facebook posts
she made on the Union’s Facebook page which complained
about being on the receiving end of her employer’s displeasure
for her previous posts on that site. Although Smith was not dis-
ciplined for her comments, she, unlike N. Miller, expressed con-
trition when confronted by Dahl. Smith’s March 2017 post about
Bray asking her to do something unsafe had already been re-
ported to Dahl and ended up resulting in discipline for Bray. Ap-
parently, management viewed Smith’s complaint as legitimate,
which was not the case here. Smith was disciplined for a Face-
book post of a picture of the facility she took from the parking
lot without clocking out. This is again not comparable to N. Mil-
ler’s conduct.
Importantly, it wasn’t just N. Miller’s Facebook post that was
protected. It was his complaints to coworkers and his supervisor
specifically about management’s decision to close the doors and
windows, resulting in what N. Miller believed to be an unsafe
working condition due to the combination of smoke and heat.
His affirmation of these complaints in the September 6 meeting
was likewise protected and separates him from the alleged com-
parative employees the Respondent puts forth.
The Respondent points to supervisor Parker, who was sus-
pended for telling an employee who had raised a concern about
hitting his head on a bolt beneath a beltway to “duck next time.”
I do not find the roles of N. Miller and the front-line supervisor
to be comparable. Moreover, their situations are divergent, in
that the supervisor who made the snide comment had been asked
by a subordinate employee to address a safety concern. Here,
the individuals in charge of decision making were the target of
N. Miller’s complaint over what he perceived as a management
decision negatively impacting employee safety.
As detailed above, I have found that N. Miller’s actions in the

35 The General Counsel requests an adverse inference based on the
Respondent’s failure to question Ramm about his response to McCool’s
post, but did not propose an inference. Because I do not find McCool’s
situation to be analogous, and there is no information whatsoever about
the forum “Umpqua Chatters,” how management found out about
September 6 meeting were and remained protected. Though the
Respondent contends that N. Miller’s behavior at the meeting
was only one reason for his termination, it is clear that absent
that meeting, and the report Ramm received about N. Miller’s
behavior during it, the Respondent was not in the process of ter-
minating N. Miller’s employment. The interaction at that meet-
ing was the catalyst for the suspension and the termination. Put
more simply, erase the meeting and, absent some other interven-
ing event, N. Miller would still be employed. Structural Com-
posites Industries, supra. Based on the foregoing, assuming a
Wright Line analysis applies, I find the General Counsel has met
her burden to prove N. Miller was suspended and terminated in
violation of Section 8(a)(3) and (1) as alleged.
CONCLUSIONS OF LAW
By suspending and terminating employee Nicholas Miller, the
Respondent has engaged in unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act.
The unfair labor practices committed by Respondent affect
commerce within the meaning of Section 2(6) and 2(7) of the
Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
The Respondent, having discriminatorily suspended and dis-
charged Nicholas Miller, must offer him reinstatement and make
him whole for any loss of earnings and other benefits. Backpay
shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), interest at the rate prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010).
The Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters. Respondent shall also compensate the discriminatee
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year. Latino Express, Inc., 358 NLRB 823 (2012), reaffd. 361
NLRB 1171 (2014); Don Chavas, LLC d/b/a Tortillas Don Cha-
vas, 361 NLRB 101 (2014). In accordance with King Soopers,
Inc., 364 NLRB No. 93 (2016), enfd. in relevant part 859 F.3d
23 (D.C. Cir. 2017), the Respondent shall compensate Nicholas
Miller for search-for-work and interim employment expenses re-
gardless of whether those expenses exceed their interim earn-
ings. 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. In accord-
ance 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,
McCool’s post, how they responded, etc., there is really no clear factual
inference to draw. Given this dearth of information which no witness
failed to cure, however, McCool has not been adequately established as
a comparative employee.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
file with the Regional Director for Region 19 a report allocating
backpay to the appropriate calendar year for Nicholas Miller.
The Regional Director will then assume responsibility for trans-
mission of the report to the Social Security Administration at the
appropriate time and in the appropriate manner
The Respondent shall also be required to remove from its files
any references to the unlawful suspension and discharge of Nich-
olas Miller and to notify him in writing that this has been done
and that the suspension and termination will not be used against
him in any way.
The Respondent shall post an appropriate informational no-
tice, as described in the attached appendix. This notice shall be
posted in the Respondent's facility or wherever the notices to em-
ployees are regularly posted for 60 days without anything cover-
ing 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. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees em-
ployed by the Respondent at any time since September 6, 2017.
When the notice is issued to the Respondent, it shall sign it or
otherwise notify Region 19 of the Board what action it will take
with respect to this decision.
The Respondent shall further be ordered to refrain from in any
like or related manner abridging any of the rights guaranteed to
employees by Section 7 of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended36
ORDER
The Respondent, Roseburg Forest Products Co., Riddle, Ore-
gon, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Suspending, discharging, or otherwise discriminating
against any employee for engaging in union or protected con-
certed activity.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Nicholas
Miller full reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously enjoyed.
(b) Make Nicholas Miller whole for any loss of earnings and
other benefits suffered as a result of his unlawful suspension and
discharge, including search-for-work and interim employment
expenses regardless of whether those expenses exceed interim

36 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
earnings.
(c) Compensate Nicholas Miller for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and file
with the Regional Director for Region 19, 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 appro-
priate calendar years.
(d) Within 14 days from the date of this Order, remove from
its files any reference to his unlawful suspension and discharge,
and within 3 days thereafter, notify Nicholas Miller in writing
that this has been done and that the suspension and discharge will
not be used against him in any way.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(f) Within 14 days after service by the Region, post at its Rid-
dle, Oregon facility copies of the attached notice marked “Ap-
pendix.” 37 Copies of the notice, on forms provided by the Re-
gional Director for Region 19, after being signed by the Re-
spondent's authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or
covered by any other material. If the Respondent has gone out of
business or closed the facility involved in these proceedings, the
Respondent shall duplicate and mail, at its own expense, a copy
of the notice to all current employees and former employees em-
ployed by the Respondent at any time since September 6, 2017.
(g) Within 21 days after service by the Region, file with the
Regional Director for Region 19 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. October 31, 2018
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.
37 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
ROSEBURG FOREST PRODUCTS CO. 13
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
YOU HAVE THE RIGHT to discuss safety issues and work-related
complaints with other employees, including by doing so on the
Carpenters Industrial Council Union Facebook page, and WE
WILL NOT do anything to interfere with your exercise of that right.
WE WILL NOT suspend or fire you because you exercise your
right to discuss safety issues and work-related complaints ver-
bally with other with other employees and supervisors or on the
Carpenters Industrial Council Union Facebook page.
WE WILL offer Nicholas Miller immediate and full reinstate-
ment to his former job, or if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his seniority
or any other rights and/or privileges previously enjoyed.
WE WILL pay Nicholas Miller for the wages and other benefits
he lost, including search for work expenses, because we sus-
pended and fired him.
WE WILL remove from our files all references to the suspen-
sion and discharge of Nicholas Miller and WE WILL notify him in
writing that this has been done and that his suspension and dis-
charge will not be used against him in any way.
ROSEBURG FOREST PRODUCTS CO.
The Administrative Law Judge’s decision can be found at
https://www.nlrb.gov/case/19-CA-213306 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.