Louisiana-Pacific Corp.

16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Louisiana-Pacific Corporation and United Brother- hood of Carpenters, Mid-Atlantic Industrial Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 11-CA- 12998 and 11-CA-13152 July 13, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On September 28, 1989, Administrative Law Judge Walter H Maloney issued the attached deci- sion The Respondent and the General Counsel filed exceptions and supporting bnefs The Charg- ing Party filed cross-exceptions and a supporting brief The Respondent filed answering briefs both to the General Counsel's exceptions and to the Charging Party's cross-exceptions The National Labor Relations Board has delegat- ed 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,' and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended Order as modified The judge found that the Respondent violated Section 8(a)(1) of the Act when its supervisors told employees that they would not receive a raise and that millwrights and electricians would not be up- graded because of the Union and when the plant manager told an employee to remove his cap bear- ing union insignia The judge also found that the Respondent violated Section 8(a)(3) and (1) of the Act by issuing a series of warning notices to em- ployees Richard Vautnn and Larry McConnell and subsequently discharging Vautnn and suspending McConnell for 3 days 2 In addition, the judge found that the Respondent violated Section 8(a)(5) and (1) of the Act when it failed to notify and bargain with the Union con- cerning the withholding of the 1988 annual wage increase We agree 3 However, the judge declined 'The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance 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 Or 1951) We have carefully examined the record and find no basis for reversing the findings 2 The Respondent did not except to these 8(a)(3) and (1) violations, to the 8(a)(1) violation involving union insignia, or to the additional 8(a)(1) violation based on the Respondent's telling employees they would be closely watched because of their union activities 'The Respondent's assertion that It promised the Dungannon employ- ees an "evaluation" only is without merit The judge correctly found that the record shows that the Respondent promised the employees an annual to find that the Respondent also had violated Sec- tion 8(a)(3) by discnminatonly withholding the 1988 wage increase holding that the General Coun- sel had not prosecuted the case on this theory The General Counsel excepts to this finding We agree with the General Counsel's arguments and find that the Respondent's withholding of the 1988 annual wage increase also violated Section 8(a)(3) of the Act Moreover, the judge incorrectly concluded that an affirmative remedy requiring the Respond- ent to grant the wage increase would be inappro- priate Both the 8(a)(5) and (3) violations support a make-whole remedy and we shall so order 4 The Respondent opened its Dungannon, Virginia waferboard plant in May 1986 The following August, employees received an across-the-board in- crease in wages of 30 cents an hour At this time, the operations manager for the Respondent's north- ern division, Dan Dilworth, and Plant Managers Pete Chase and Steve Harper discussed the wage increase with employees, advising them that "[they] would be evaluated every year about that time and should get a raise every year at that time" In addition, Dilworth told employees that the plant was not yet ready for the Company's in- centive program with its monthly production bonus but that this program would be extended to Dungannon at a later date In May 1987, the Respondent instituted the in- centive program at Dungannon Under the pro- gram, the employees were paid a monthly produc- tion bonus that vaned according to their produc- tivity beyond the plant's baseline minimal accepts- across-the-board Increase in base wages The consensus testimony of em- ployees Larry McConnell, Rich Finch, Richard Vautnn, Donnie Salyers, Greg Robinson, Randy Bush, Terry Starnes, and Pam Stidham was that the Respondent told them they would get an annual base-rate wage In- crease Although McConnell, Salyers, and Robinson also used the word "evaluation" and Vautnn the word "review," they understood that they would get a base-rate wage increase annually We therefore find it unnec- essary to rely on the judge's comments that "in common mdustnal rela- tions parlance, evaluation means pay increase and the Respondent's em- ployees were entitled to assume as much" (ALJD sec C,2, par 12) We note also that the Respondent's reliance on Great Atlantic dl Pacific Tea Co, 166 NLRB 27 (1967), and similar cases involving preelection conduct is misplaced An employer acts at its peril in making changes in terms and conditions of employment during the penod when its objec- tions to an election are pending Where, as here, the final determination on the objections results in the certification of the union, the employer's unilateral changes during that period violate Sec 8(a)(5) and (1) of the Act See Mike O'Connor Chevrolet-Buick-GMC Co, 209 NLRB 701, 703, and cases cited in fn 11 (1974) 4 We disagree with the judge's observation that he was precluded from recommending an affirmative remedy that would require the Respondent to grant an Increase in wages consistent with its 1987 increases (ALJD sec III, par 2) To remedy the 8(a)(5), (3), and (1) violations, we shall order the Respondent to make employees whole by payment of the amounts of wage Increases they have been deprived of by reason of the Respondent's unlawful conduct, as prescribed in Ogle Protection Service, 183 NLRB 682 (1970), plus interest New Horizons for the Retarded, 283 NLRB 1173 (1987) See Southeastern Michigan Gas Co, 198 NLRB 1221 (1972), enfd 485 F 2d 1239 (6th Cu. 1973) 299 NLRB No 5 LOUISIANA-PACIFIC CORP 17 ble production of waferboard The first bonus was paid in July, and the payments continued in each succeeding month of 1987 At the end of the summer of 1987, the Dungan- non employees began mquinng about the across- the-board wage increase Dilworth, Chase, and Plant Manager Dan Hemore assured employees that the raise would be forthcoming, but that it would be late In September 1987, Chase an- nounced the raise to employees-25 cents for pro- duction employees and 35 cents for utility employ- ees, to take effect on the first of October Chase also told employees "from now on [they were] going to start being eligible in October for our annual raises" Dilworth assured employees that "[they] would be getting one [raise] around that time from every year there on" Dilworth also spoke to the employees about the introduction of a new flaker machine at the plant that was expected to mcrease production, and announced that "the rate for the production bonus would be adjusted accordingly" Chase and Dilworth told the em- ployees that the ceiling on the monthly production bonus was a dollar 5 At the end of the summer of 1987, more than a year before the flaker's installation, the Union began its organizing campaign among the Respond- ent's employees On November 19, 1987, the Union filed a representation petition It won an election held on February 3 and 4, 1988, by approximately a 2-to-1 margin The Respondent filed objections to the election The Board found them to be without merit and certified the Union on March 24, 1989 The judge found that in January 1988 Dilworth told employees at one of the lunchroom meetings conducted during the organizing campaign that, if the employees brought the Union in, he would not even talk to them about the pay raise regularly scheduled for October 6 The judge further found 'The Respondent's Production Incentive Program states The baselines detailed in this plan shall remain fixed except in cases where a capital expenditure made by the company of the value of $10,000 or more, that increases or potentially Increases the minimal acceptable average production per shift In these cases, the baselines of the incentive program shall be Increased by 80% of the increase, or potential increase in production The Respondent's attorney testified at the hearing that the flaker repre- sented an Investment of $2 million for the Respondent It was Installed in the fall of 1988 Thereafter the incentive payments ranged from slightly less than SI to SI 99 per hour We note the judge inadvertently dated the new flaker's Impact on in- centive payments as first occurring in September 1989 rather than in Sep- tember 1988 We note that, at one point in his decision, the judge correctly identi- fied Dilworth as making this statement, but later in his decision incorrect- ly ascribed the statement to Chase The General Counsel did not allege that this statement was an independent violation of Sec 8(a)(1) because it did not occur within the time limits of Sec 10(b) of the Act that Supervisors Brad Dodge and Tom Moore told employees Larry McConnell and Richard Vautnn sometime in July or August 1988 that Dungannon employees would not get their raise because of the Union The employees did not get a raise in base wages nor did the Respondent adjust the baseline of the incentive program The Respondent offered the testimony of Oper- ations Manager Dilworth to explain the Respond- ent's failure to give the base-rate wage increase Dilworth testified that he alone is responsible for the annual evaluation of the Dungannon plant, the Respondent's only unionized plant He stated that he had nine waferboard plants in his division and that he reviews each plant on its own merits once a year In accomplishing that review, Dilworth ex- plained, he looks at the economics of the area, comparable industries in the area, and the incentive program Dilworth acknowledged that he some- times employs a combination of both the mcentive program and an across-the-board wage increase But, he stated that some plants have gone more than 1 or 2 years without an increase in the base rate, and that three plants have had only one base- rate increase According to Dilworth, five of the nine waferboard plants (including Dungannon) did not receive an across-the-board wage increase in 1988 Dilworth testified that he had evaluated Dungan- non in October 1988, and sometime in November or December 1988, had decided not to make any changes in either the base wages or in the baseline for the incentive program He stated that he had felt that the incentive program tied productivity to the new flaker machine during its shakeout period, and that, should the machine's efficiency prove transitory, it would be disadvantageous to the Re- spondent to have lowered the baseline of the incen- tive program and increased the across-the-board wage rate Dilworth admitted that he had not noti- fied anyone about his decision, he had not dis- cussed the issue with the Dungannon plant manag- er and had neither telephoned anyone m manage- ment nor issued memoranda on the subject The judge concluded that Dilworth's January 1988 statement and Dodge's and Moore's July- August 1988 statements, ascribing to the Union the withholding of the fall 1988 base-rate increase, were sufficient to support a finding of discriminato- ry motivation As noted earlier, however, he de- clined to find that the Respondent had violated Section 8(a)(3) of the Act when it had withheld the 1988 wage increase because he found that the Gen- eral Counsel had failed to prosecute the case on this theory The General Counsel has excepted to this finding, arguing that the discnminatory-moti- 18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vation theory was stated in the complaint and was litigated at the heanng, but was inadvertently omit- ted from the General Counsel's brief to the judge We find merit in the General Counsel's exceptions Both Section 554(b)(3) of the Administrative Procedure Act and Section 102 15 of the Board's Rules and Regulations require that the complaint inform the Respondent of the violations alleged The Board may not make a finding or order a remedy on a violation not alleged in the complaint or litigated at the hearing See, e g, Teamsters Local 992 v NLRB, 427 F 2d 582, 588 (DC Or 1970), NLRB v Blake Construction Co, 663 F 2d 272, 279 (D C Cm 1981) In this case, the statutory and regulatory require- ments for finding an 8(a)(3) violation are satisfied The complaint in paragraphs 11, 12, 18, and 19 states that in violation of Section 8(a)(3) and (1) of the Act, the Respondent withheld an annual wage increase from its employees in 1988 because its em- ployees had assisted the Union The General Coun- sel elaborated on the complaint's discriminatory motive theory at the outset of the hearing Employees inquired of supervision why they had not received their annual wage increase They were told at that time the reason was be- cause of the union We firmly believe that this evidence, along with the established past prac- tice of the employer, makes out a violation that but for their union activity they would have been granted a wage increase The General Counsel then proceeded to put in evi- dence the testimony of employees Larry McCon- nell, Richard Vautrm, Rich Finch, and Donnie Sa- lyers on this issue Finally, we note that, pursuant to Section 102 42 of the Board's Rules and Regulations, there is no requirement that parties file any briefs with the ad- ministrative law judge As filing a postheanng brief is permissive in the first instance, the mere omission of the 8(a)(3) argument from his brief at that point hardly, by itself, warrants finding, that the counsel for the General Counsel thereby waived the 8(a)(3) theory explicitly put in issue by the complaint Ac- cordingly, we conclude that the issue of the Re- spondent's motivation in withholding the 1988 wage increase was properly before the judge 7 We also conclude that the judge correctly stated that the record supports finding that the Respond- ent withheld the 1988 wage increase for discrimina- tory reasons Our analysis of this issue does not end, however, with a consideration of the incrimi- nating statements of the Respondent's manager and 'See Moore Co, 264 NLRB 1212 In 1 (1982), enf denied without opinion 722 F 2d 738 (4th Or 1983) supervisors Rather, we find that these statements satisfy the General Counsel's burden to make a prima facie showing sufficient to support the infer- ence that protected union activity was a motivating factor in the Respondent's decision to withhold the 1988 wage increase We further find that Dil- worth's testimony in rebuttal, if credited, fails to demonstrate that the Respondent would have with- held the increase even in the absence of the pro- tected conduct 8 Dilworth testified that he decided sometime in November or December 1988 to do nothing con- cerning both base wages and the baseline in the in- centive program because he wanted to wait until after the new flaker's shakeout period Dilworth also claimed that he told no one—management or employees—about this 1988 decision not to give the across-the-board increase in base wages 9 This claimed secrecy renders implausible the asserted timing of, and the asserted reasoning behind, the decision It strains credulity to believe that the op- erations manager for a company division compris- ing several plants would make a decision about re- muneration for employees at one of those plants without at least discussing that matter with man- agement at that plant Moreover, Dilworth's failure to commumcate openly with managers and em- ployees is contrary to the past practice at Dungan- non As indicated above, Dilworth and Plant Man- agers Pete Chase and Steve Harper openly dis- cussed the August 1986 across-the-board increase in wages with the Dungannon plant employees Similarly, at the end of the summer in 1987, Dil- worth, Chase, and Plant Manager Dan Hemore re- peated this pattern of open discussion concerning the 1987 increase Dilworth and Chase also openly discussed with employees the installation of the new flaker and its potential impact on the monthly production bonus Thus, the alleged secrecy itself suggests that Dilworth did not make the decision when he said he did Even were we to assume that this decision was made when Dilworth said it was, withholding the increase was inconsistent with the Respondent's previous actions at the Dungannon plant In 1987, the Respondent not only introduced the production incentive program with its monthly bonuses in May, but it also paid the across-the-board wage in- crease in October Given the 1987 experience, we are not persuaded that the Respondent's introduc- tion of the new flaker in 1988 precluded any addi- tional recompense other than the incentive pro- 8 See Wright Line, 251 NLRB 1083, 1089 (1980), enfd 662 F 2d 899 (1st Or 1981), cert denied 455 US 989 (1982) 9 The Respondent offered no contemporaneous wntten documentation attesting to Dilworth s decision LOUISIANA-PACIFIC CORP 19 gram for the Dungannon employees Indeed, we are persuaded that were it not for the Union's win- ning the election, the Respondent would have granted the employees a base-wage rate increase in the fall of 1988 Thus, we find that the Respond- ent's assertion that it gave no raise because it wanted to see the effects the flaker had on produc- tion is not supported on the record considered as a whole In sum, at the critical time when the union cam- paign was underway, the Respondent told the Dungannon employees that they would not receive their 1988 across-the-board wage mcrease—an in- crease they had been promised—if they supported the Union Later, the Respondent followed up on its threat to deny the across-the-board increase in wages The record thus supports the finding that the Re- spondent withheld the 1988 wage increase because it wanted to discourage the Dungannon employees' union activity Accordingly, we conclude that the Respondent failed to rebut the General Counsel's prima facie case and that the Respondent's with- holding of the 1988 wage mcrease violated Section 8(a)(3) and (1) of the Act 10 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Louisiana-Pacific Corporation, Dungan- non, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified 1 Insert the following as paragraph 1(a) and re- letter the subsequent paragraphs "(a) Discnmmatonly withholding annual in- creases in base rates from production and mainte- nance employees employed by the Respondent at its Dungannon, Virginia plant" 2 Insert the following as paragraph 2(b) and re- letter the subsequent paragraphs "(b) Resume the annual wage increase policy and make whole all employees in the appropriate unit for all wage increases that they would have re- ceived had the Respondent not unlawfully discon- tinued that policy, plus interest" 3 Substitute the attached notice for that of the administrative law judge 10 See Times Wire & Cable Co , 280 NLRB 19 (1986) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT discnmmatonly withhold any in- creases in base rates from production and mainte- nance employees employed at our Dungannon, Virgmia plant, or otherwise discriminate against employees because of their protected activities WE WILL NOT unilaterally withhold any in- creases in base rates from production and mainte- nance employees employed at our Dungannon, Virginia plant, and WE WILL NOT unilaterally change any wages, hours, or terms and conditions of employment of those employees WE WILL NOT refuse to bargain collectively in good faith with United Brotherhood of Carpenters, Mid-Atlantic Industrial Council, United Brother- hood of Carpenters and Joiners of America, AFL- CIO, as the exclusive collective- bargaining repre- sentative of our Dungannon, Virginia production and maintenance employees WE WILL NOT inform employees that they will not receive pay increases or job reclassifications be- cause they selected the Union as their collective- bargaining representative WE WILL NOT prohibit employees from wearing union insignia at the plant WE WILL NOT inform employees that they will be closely watched because of their union activi- ties WE WILL NOT issue oral or written warnings to employees in reprisal for their union activities and union sympathies WE WILL NOT discourage membership in or ac- tivities on behalf of United Brotherhood of Carpen- ters, Mid-Atlantic Industrial Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization by placing illegal warnings in employee personnel 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD files, by suspending or discharging employees, or by otherwise discriminating against them in their hire or tenure WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL, on request, bargain collectively with the Union as the exclusive collective-bargaining representative of our Dungannon, Virginia produc- tion and maintenance employees and, if agreement is reached, WE WILL embody that agreement in a signed, written contract WE WILL grant wage increases in accordance with our past practice and WE WILL make all em- ployees in the appropriate unit whole for any wage increases that they were unlawfully deprived of by paying them the amounts of the increase due them, with interest WE WILL offer to Richard Vautnn full and im- mediate reinstatement to his former or substantially equivalent employment, and WE WILL make Larry McConnell and Richard Vautnn whole for any loss of pay or benefits that they may have suffered by reason of the discriminatory practices against them, with interest WE WILL remove from the personnel records of Richard Vautnn and Larry McConnell all discipli- nary warning notices and related memoranda, and WE WILL inform these employees that we have taken this action and that the disciplinary warning notices and related memoranda will not be used as the basis for future discipline LOUISIANA-PACIFIC CORPORATION Pans Favors, Esq and Rosetta Lane, Esq , for the General Counsel William M Earnest, Esq , of Atlanta, Georgia, for the Respondent DECISION STATEMENT OF THE CASE FINDINGS OF FACT WALTER H MALONEY, Administrative Law Judge This case came on for hearing before me at Norton, Vir- ginia, upon a consolidated unfair labor practice com- plaint,' issued by the Regional Director for Region 11 of The pnncipal docket entnes in this case are as follows Charge filed herein by United Brotherhood of Carpenters, Mid-Atlan- tic Industnal Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Union), against the Respondent in Case 1I-CA- 12998 on October 11, 1988, amended on November 1, 1988, and amended again on November 30, 1988, complaint issued by the Regional Director for Region it, against the Respondent on November 30, 1988, Respond- ent's answer filed on December 2, 1988, charge filed by Union in Case 11-CA-13152, on January 25, 1989, order consolidating cases and con- solidated complaint issued by Regional Director for Region 11, against the National Labor Relations Board, which alleges that Respondent Louisiana-Pacific Corporation 2 violated Sec- tion 8(a)(1), (3), and (5) of the Act More particularly, the consolidated complaint alleges that the Respondent told employees that they would not receive a wage in- crease because they selected the Union to be their collec- tive-bargaining representative, informed them that cer- tain job classifications could not be upgraded because they had selected the Union as their collective-bargain- ing representative, prohibited employees from wearing hats with proumon msignia, informed union supporters that they would be closely watched, issued written warn- ings to employees m reprisal for their union activities, suspended Richard Vautnn and Larry McConnell in re- prisal for their umon activities, and discharged Vautnn for the same reason The consolidated complaint also al- leges that the Respondent withheld an annual wage in- crease from its Dungannon production and maintenance employees in derogation of its duty to bargain with the Union as their duly selc, bargaining agent After the Board certified the Un-: on March 24, 1989, the Re- spondent recognized it as the representative of its Dun- gannon employees but it did not accord such recognition between the date of an election, held on February 3 and 4, 1988, and the date of the Board decision Respondent denies the commission of independent violations of Sec- tion 8(a)(1) of the Act, asserts that Vautnn and McCon- nell deserved the repnmands it placed in their respective records for an assortment of work-related deficiencies, and further asserts that McConnell was suspended and Vautnn was discharged because of poor job perform- ance Upon these contentions the issues in this case were joined 3 B The Unfair Labor Practices Alleged The Respondent is a large national corporation which opened a factory at Dungannon in southwest Virginia in 1986 It currently employs about 100 employees who work in four shifts and maintain round-the-clock produc- tion 7 days a week The Respondent manufactures a new product known as waferboard, which is used for walls, floors, and roofing in both residential and commercial construction In the late summer of 1987, the Union initi- ated an organizing campaign at the Respondent's Dun- gannon plant and filed a representation petition on No- vember 19 (Case 5-RC-13002) On February 3 and 4, 1988, it won the election by a majority of about two to one However, it was not certified until 14 months later Respondent on March 16, 1989, Respondent's answer filed March 22, 1989, heanng held in Norton, Virginia, on April 25-27, 1989, briefs filed with me by the General Counsel and the Respondent on or before July 3, 1989 2 The Respondent admits, and I find, that it is a Delaware corporation which operates a factory at Dungannon, Virginia, where It manufactures wood building material known as waferboard During the 12 months pre- ceding the issuance of the consolidated complaint in this case, the Re- spondent received at its Dungannon, Virginia factory, goods and raw ma- terials valued in excess of $50,000 directly from points and places located outside the Commonwealth of Virginia Accordingly, the Respondent is an employer engaged in commerce within the meaning of Sec 2(2), (6), and (7) of the Act The Union is a labor organization within the meaning of Sec 2(5) of the Act 3 Errors in the transcript have been noted and corrected LOUISIANA-PACIFIC CORP 21 because of the processing of objections to the conduct of the election which were filed by the Respondent Respondent conducted a vigorous campaign to defeat the organizing drive I discredit the testimony of Kathy Hammond, Respondent's personnel director, that the Company simply provided employees with information relating to the pro's and con's of unionization Supervi- sors were given literature disparaging unionization and were instructed to give it to the members of their respec- tive crews and then to read it to them On the union side, employees, including discnmmatees McConnell and Vautnn, distributed union handbills at the plant gate to other employees and campaigned for the Union in pri- vate conversations at the plant The Union disseminated a periodic news letter to employees, which contained signed articles written by other employees, including Vautnn, and carried its message to employees and to the general public in a daily newspaper of general circulation in the area During the election campaign the Respondent kept known or suspected umon supporters under careful scru- tiny during their shifts D Shift, the one supervised by Foreman Mickey Mullins, was regarded by management as a focal pomt of union activism Supervisor Jim Sum- mers instructed management trainee Terry Starnes to help Mullins keep an eye on this crew because Mullins had too many union supporters on his hands Included in this crew were Vautnn, McConnell, Brice Barker, and Nelson Osborne Summers told Starnes to keep a special eye on Vautnn, instructing Starnes to make repeated trips to the dryer control room to discourage Vautrm from campaigmng He told Starnes to do what ever he had to do—come in by side doors or back doors, if nec- essary—to catch Vautnn "screwing off" Starnes was also instructed to watch employee Glen Compton, who was being reprimanded for a safety viola- tion He informed Starnes that the Company was going to "push this thing to the max" with regard to Compton By that statement Summers meant that the Respondent was gomg to bypass certain steps in the Company's pro- gressive discipline system in order to give Compton a 3- day suspension for his first offense Hammond was also present during a preelection supervisor's meeting relating to surveillance of union sympathizers In reference to Compton, Hammond told Starnes to "stay in his back pocket watch especially for safety violations if we can get anything else, we'll get rid of one of these union assholes" Surveillance of union sympathizers was also mentioned at other supervisory meetings Among those who were made the special subject of company scrutmy were Vautrm, McConnell, Nelson Osborne, Ron Osborne, Donnie Salyers, and Larry McConnell 4 4 Several company supervisors and officials whose names were men- tioned prominently in the testimony in this case were not summoned to testify This number included Mickey 0 Mullins, Peter Chase, Tom Moore, Jeff Mann, Jim Summers, Brad Dodge, Dan Hemore, and Tom Fannon Hammond testified briefly at the outset of the case as an adverse witness summoned by the General Counsel, but she did not resume the stand at any later point in time to rebut testimony concerning her antiun- ion activities Accordingly, much of the General Counsel's evidence stands unrebutted in the record and is credited Starnes testified without contradiction that management officials who attended preelection supervisory meetings, specifically Summers and Hammond, felt that Vautrm was bucking for union president On the evening of the count of ballots—February 4, 1988—a postmortem was held by management officials and antiunion members of the bargaining unit to lament the fact that the Union had won the election by a deci- sive margin Regional Manager Peter Chase told the in- formal gathering not to worry, commending those in at- tendance for their efforts in trying to keep the Union out of the plant He urged them to give procompany sympa- thizers some leeway in taking breaks and going to lunch Hammond was a little more emphatic She thanked those who had worked for her and also thanked bargaining unit members who had supported the Company, saying that it took a lot of guts for some employees to switch ties after having first supported the Union Her advice as to how to handle union supporters was quite blunt "As far as your Vautnns, McConnells, your Osborne boys, and your Bnce Bakers just keep an eye on them and anything that you can find on them—anything, any dis- crepancy to a rule—just don't give them a break any- where and maybe you'll find a way to get rid of some of these union people "5 Jim Summers then chimed in "These s o b 's really showed you who your friends are now There ain't a one out there that cares anything about you They didn't support you, they didn't back you up at all If it was up to me, I'd fire every damn one of them" Chase then broke in and advised caution, tell- ing the group that if the Company took any immediate action against any union organizer or union sympathizer, they would surely have grounds to file a charge with the Board or some other agency He also tried to comfort company supporters by telling them that, during negotia- tions, the Union would have to negotiate with him and it would not be able to do so He insisted that, as far as he was concerned, the Union would never get a contract While objections to the election were pending before the Regional Office and the Board, the Respondent con- tinued to express its feelings against the unionization of the plant on an ongoing basis In the summer of 1988, employees at Dungannon were anticipating an across- the-board increase in wage rates similar to increases they had received in 1986 and 1987 McConnell had occasion, during this point in time, to discuss this question with Brad Dodge, an electrical supervisor who worked both at Dungannon and at the Respondent's Houlton, Maine factory, the parent plant of the Dungannon facility Dodge told McConnell that the Respondent's employees at Houlton had already received their wage increase but that he doubted that Dungannon employees would re- ceive anything because of the Union Not long thereaf- ter, McConnell broached the same subject with Supervi- sor Tom Moore, who told him and employee Ricky Finch that the Company was not going to give Dungan- non employees a raise because of the Union Moore added that, because of the Union, the Company would 5 Hammond denied under oath that she had attended any postelection meeting I discredit her statement, which was contradicted by Company Division Manager Dan Dilworth, among others 22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD not be reclassifying millwnghts upward from Class C to B or from Class B to A, and the same would be true re- specting any upward reclassification of electncians McConnell and other pressmen work in an enclosed booth overlooking the production line In September 1988, McConnell and the new plant manager, Dana Du- lohery, held a conversation in the press booth concern- ing a baseball cap which McConnell was wearing Many parts of the factory are "hard hat" areas, meaning that employees and supervisors are expected to wear protec- tive helmets while working in those portions of the plant Since the press booth is both covered and en- closed, it is not a hard hat area and employees are free to wear other head coverings or no covenng at all McCon- nell's baseball cap had a union insignia on it and Dulo- hery took exception to the insignia He told McConnell to take the cap off and not to wear it McConnell began to argue with him and asked him why he could not wear the cap Dulohery gave no reason, he simply repeated his order directing McConnell to remove the cap This exchange continued as McConnell continued to demand a reason for the order Dulohery simply replied that, if McConnell wanted to wear anything, he should wear a hard hat Dulohery ended the conversation by telling McConnell that, if he wished to discuss the matter fur- ther, he could do so in the plant manager's office Mc- Connell removed the baseball cap with the union insignia and did not wear it again at the plant In January 1989, McConnell had a conversation with his foreman, Mickey Mullins, concerning the Union The conversation occurred dunng a breakdown while em- ployees were checking and cleaning the equipment on the production line McConnell asked Mulhns whether Mullins thought that McConnell had anything to do with the repeated breakdowns which the Respondent was ex- penencmg with its equipment Mullins replied that he did not think that McConnell was responsible but Summers and Dulohery thought it was funny that many of the breakdowns occurred on shifts manned by Mullins' crew He told McConnell that the latter had better "watch it" because Summers and Dulohery had a grudge against him McConnell's response was that he did not know why they would feel that way since he had never done anything to hurt anyone McConnell asked Mullins why upper management felt the way they did Mullins replied that it was because of McConnell's union activities and that McConnell had better "keep an eye out" for them At issue in this case are certain warnings given by the Respondent to McConnell and Vautnn for unsatisfactory performance of their duties as press operators This job is one of the higher paying and more responsible positions in the bargaining unit There is normally one press oper- ator on each shift He is assigned to work in a control room or press room, descnbed above, and to control the functioning of a large, partially automated press through the use of various buttons and gauges found in the con- trol booth This operation falls near the end of the entire process of making waferboards The process begins with the debarking of logs of various sizes which are brought to the plant by independent contractors After the bark is stnpped from the logs by machine, the logs then pass through a newly acquired machine called a wafenzer, which slices the wood into very thin flakes or wafers These wafers or chips are placed in a wet bin, dried by a dryer, and then conveyed to separate dry bins One bin holds chips which are used to form the cores of the wa- ferboards and another holds chips which are used to form the bottoms and tops of the boards From the dry bins the chips are sent to a blender where they are mixed with resin and wax and poured into formers which form the bottom, core, and surface layers of a waferboard From this point, the resin-treated wafers, sometimes called mats, are placed on metal screens and inserted into a loader cage Eight mats are automatically transferred from the loader cage into the press on separate wooden pallets After the loading is completed, the pallets are re- moved from the press by a loader boom The mats are then pressed to a desired thickness under 2,275 pounds of pressure The combination of heat, moisture, resin, and pressure bonds the wafers into waferboards dunng a pressing cycle which lasts about 3 minutes After the pressure is released, the completed boards are removed from the press by an unloader boom which clamps the head bars along the front of the screens on which the mats have been resting When the press is operating properly, the headbars protrude from the press so they will not be crushed during the pressing cycle After the waferboards are removed from the press, they are sent along a conveyer to the saw line, where they are cut into sheets, stacked, strapped, and carried to the warehouse for shipment Finished products are graded "A" for the best board, "U" for second best, and "X" for unsuitable for sale About 2 percent of the Re- spondent's monthly production is "X" rated As previously noted, the Respondent normally follows a progressive discipline system for a wide variety of in- fractions and shortcomings which violate its standards of employee conduct or proficiency The first step is an oral warning, the second a written warning, the third a 3-day suspension, and the fourth is discharge This is the system which was assertedly brought to bear upon Mc- Connell and Vautnn On or about December 27, 1988, Vautnn was discharged after having received a verbal warning on August 30, wntten warnings on September 9 and October 18, respectively, and a 3-day suspension on December 8 All of these disciplinary measures were im- posed for mistakes committed in the performance of his duties as press operator McConnell was given a 3-day suspension on or about January 24, 1989, for a mistake after having received a verbal warning on October 18 and a written warning on December 8, 1988, all for job- related errors as press operator Vautrm started to work for the Respondent in August 1985, while the Dungannon plant was still under con- struction He first worked as a utility man doing cleanup work, was later employed as a Class B millwright, worked on the dryer, and was then assigned to the qual- ity control department He bid on the job of press opera- tor against 8 or 10 other employees and was given the position on a full-time basis in August 1988, after having been a part-time observer in the press room learning the requirements of a job while still doing quality control "LOUISIANA-PACIFIC CORP 23 work 6 Dulohery came to Dungannon as plant manager at the same time, after having worked for the Respond- ent in a management capacity at its plant in Colorado Shortly after his arrival in Dungannon, Dulohery began making pnvate memos to Vautrm's personnel file They recited various errors which Vautnn had been seen com- mitting as a newly assigned press operator and also recit- ed Dulohery's conversations with Vautnn which at- tempted to correct these mistakes 7 The notations dealt with such matters as failing to turn on the core blending system, plugging the core blender outfeed conveyor, and failing to turn the press on semi-automatic to complete the press cycle instead of asking for help from the mam- tenance department On August 30, Dulohery made an- other entry in Vautnn's file, styled as a memo from him- self to Vautnn, which contained a discussion with Vau- trim which took place on that day concerning certain press functions It stated The point of the meeting has been to correct the problem If Rich wants to continue to be a press op- erator, he must become more consciencious of oper- ating procedures and solving problems without cre- ating more problems Dana asked Rich if he needs more training There will be written procedure on how to close the press should there be programs and trouble- shooting techniques 6 There will be a follow-up meeting to check Rich's progress on Sept 13, 1988 Dana F Dulohery On September 9, Vautrm was given an employee warning notice, which stated On 9-9-88 at approximately 11 30 a m you failed to restart the formers after stopping them due to a plug in the line This resulted in blank mats and thin mats having to be rejected This caused unnecessary downtime and bad board On 8-30-88 you were given a verbal warning for the same type of inci- dent This leaves us no alternative but to give you a written warning If this happens again it may result in discipline up to and including discharge 6 Respondent's witnesses spoke in terms of a training program for pro- spective press operators at Dungannon No such program exists in any formal, structured sense of the word There is no academic instruction or training for the job, those who are selected for it are simply allowed to spend their spare time from other positions in the control room watching other press operators man this position 7 In the course of its regular disciplinary procedure, the Respondent uses a printed form, called an employee warning notice The nature of the infraction, regardless of what It might be, is checked on the form and a short narrative is set forth describing what happened The form is then shown to the employee and his signature is solicited It is then placed in his personnel file and left there permanently There is no provision in the Respondent's disciplinary procedure for the removal of disciplinary no- tices after the passage of a stated period of time The notations made by Dulohery in August were not made on these forms but were merely typed notes placed in Vautnn's personnel file which had not been brought to Vautrm's attention 6 As of April 1989, when the hearing in this case took place, no such troubleshooting manual had been prepared On October 18, 1988, Vautnn received another wntten employee warning notice, which read On 10-13-88, Rich Vautnn was operating the press Rich closed the press on the pallet thus de- stroying the pallet and causing downtime On the same date Rich ran the line at 100% speed while using 50% of the required material causing down- grade panels The problems with Rich's perform- ance and inattention to his job have been discussed with him on several occasions and he has received one written warning However, due to the wording on Rich Vautrm's warning dated 9-9-88, with this being a different incident, he will not be suspended Rich will receive only a written warning, but must improve his performance by paying attention to his job Any further problems with Rich will result in disciplinary action up to and including discharge On December 8, 1988, Vautnn received another warn- ing notice, which read In spite of several verbal and written warnings your quality of work has failed to improve For in- stance, on December 6, 1988, at approx 9 14 a m you failed to change the press settings correctly during a change over of thickness This resulted in unnecessary downtime and downgrade board Also you failed to log the downtime of the shift report With a previous written warning on 10-18-88, we must suspend you for three days without pay Your suspension will begin on December 13, 1988, and you will be expected to return to work on Decem- ber 16, 1988 at 11 00 pm It is important that your performance improve as any further problems with your performance will result in your termmation as press operator On December 22, 1988, Vautnn was experiencing diffi- culty with the No 5 pallet on the loader The press could not be loaded because the required number of screens, namely eight, were not there, so Vautnn sum- moned Addington, the line technician, to help with the loading of the press Instead of Addington, Steve Ver- million, Vautnn's supervisor, responded to the call Ver- million personally loaded the No 5 pallet into the press manually When the loader boom came out of the press, Vermillion, who was standing on a railing next to the press, gave a signal to Vautnn in the press booth to start the press Vautnn pressed the button starting the press in this cycle and heard the sound of wood breaking Ver- million jumped down from where he was standing and pushed the emergency stop button One of the wooden pallets which was in the press had not been completely removed so the press closed on it and crushed it Vermil- lion asked Vautnn why he had closed the press when a pallet was sticking out of it Vautnn said he could not see it Vautnn asked Vermillion why he had signaled to him to start the press when the pallet was sticking out since Vermillion was standing right next to the press Vermillion had no answer The crushed pallet was re- placed by another pallet which had been kept in reserve and the press resumed operation The plant production 24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD report for December 22, 1988, showed that D crew (which was involved in this incident) was down a total of 80 minutes, 40 minutes to replace the crushed pallet and an aggregate 40 minutes for two other mishaps which occurred in the course of the shift Notwithstand- ing these problems, D crew was second among the four production crews in percentage of total operating time during which it functioned on that workday The following day Vautnn was called into the office, suspended, and given a warning notice which was placed in his personnel file It read On December 22, 1988, you pressed a pallet which caused unnecessary downtime, downgrade board, and destroyed the pallet On 12-8-88, you received a three-day suspension due to performance prob- lems At this time we are suspending you without pay until this can be investigated further On 12-27- 88, you will be notified of the status of the investi- gation and a meeting will be set up at that time On December 27, Vautnn was called to the plant for a meeting with Dulohery and several management offi- cials Dulohery handed Vautnn a warning notice which read "Due to your continued poor performance, your employment with Louisiana-Pacific is terminated as of 12-27-88" Vautnn questioned this action, asking Dulo- hery how Dulohery could fire him over this incident when Vermillion was present blocking his view of the press and he was merely doing what Vermillion told him to do when he pressed the button closing the press Du- lohery's reply was that Vautnn should have seen the pallet protruding from the press Vautnn argued that, if he had failed to close the press pursuant to Vermillion's instruction, he could have been written up for disobeying orders His argument was unavailing and he left the plant Larry McConnell has worked for the Respondent for about 3 years Dunng that period of time, he has held jobs on the saw line and in the quality control depart- ment In March 1988, he was promoted to press operator as a result of a bidding process On October 24, 1988, McConnell was given an em- ployee warning notice which read On October 17, 1988, when the press was loaded you failed to see that one may after being loaded came part way back out of the press This caused one side of the headbar to be pressed inside of the press This can cause a considerable amount of equipment damage, including unnecessary down- time Due to your neglect and the job performance problem listed on the attached page that Mickey Mullins and Jim Summers have discussed with you, we are issuing this verbal warning Any additional problems with your job performance may result in disciplinary action up to and including discharge On December 8, 1988, McConnell was issued another employee warning notice, which read On November 29, 1988, you failed to see that a mat had pulled back out of the press You have received a verbal warning on October 24, 1988, for a similar situation, with neglect and job performance It is important that your performance improve as any other problems will result in disciplinary action up to and including discharge On January 24, 1989, McConnell was suspended for 3 days after having received the following notice On Monday, January 23, 1989, at approx 200 pm while changing from 3/8" board to 7/16" board, you forgot to enter the proper L settings for 7/16" This negligence caused two bundles of approximate- ly 6000' of downgrade board On 12-12-88, you re- ceived a written warning concerning neglect and job performance, therefore you are receiving a three-day suspension, effective on Wed 1-25-89, 1- 26-89, & 1-31-89 You will be expected to return to work on 2-1-89 at 11 00 p m It is important that your performance improve as any further problems will result in your termination as a press operator McConnell returned to work after the suspension and was still employed as a press operator as of the date of the hearing m this case The Dungannon plant began to operate m May 1986 On August 10, 1986, all production and maintenance em- ployees received a 30-cent-an-hour increase in their re- spective base rates At that time, the Respondent had not yet inaugurated a program of incentive payments which began in July 1987 9 News of the 1986 across-the-board increase was given to employees by Chase at a safety meeting, which was also attended by Division Manager Dan Dilworth Chase said that the plant had not been in operation long enough to warrant an incentive program but he informed em- ployees that such a program would be instituted later on He also told them that Dungannon employees would be evaluated for a raise every year at or about the same time However, he did not explain the evaluation proc- ess 1° In October 1987, Dan Hemond, the former plant man- ager, told employees that he was going to a management meeting at Hayward, Wisconsin, where a determination would be made concerning the annual raise Upon his return, he announced that production employees would 9 The program of incentive payments which began at Dungannon in July 1987, calls for plantwide bonuses, payable in the same amount to all employees, both management and hourly rated alike, except for plant guards and a few contract workers Computations are made on a 28-day basis Thereafter an additional amount representing the incentive bonus is then placed in the paychecks of each affected worker during the follow- ing month Dunng 1987, incentive bonuses ranged from $ 30 to $ 77 per hour In the first 4 months of 1988, incentive payments ranged from $ 07 to $ 39 per hour There were no incentive payments in May, June, and July of that year 10 According to Dilworth, the evaluation process is a one-man inquiry, made by him each year with respect to all 10 of the Respondent's plants which fall under his supervision and control His evaluation extends both to base rates and to incentive rates Sometimes, as a result of the evalua- tion, the employees at a given plant may receive an Increase and some- times they may not, depending on how he feels about the plant's per- formance and the area wage scale The decision to grant or withhold an increase is Dilworth's alone and, according to him, he does not necessari- ly consult with anyone else either before or after making It LOUISIANA-PACIFIC CORP 25 receive a 25-cent increase across the board while utility employees would get a 35-cent increase because their wages had fallen behind those of other employees in the plant These increases did not become effective until Oc- tober 1987 Shortly thereafter, another meeting took place between employees and Chase and Dilworth In the course of discussing the future plans of the Compa- ny, Dilworth was asked by employee Donnie Salyers employees were going to receive a raise in October 1988 His reply was that the plant would be evaluated for a raise at the same time the following year However, in January 1988, at an employee meeting held in the com- pany lunchroom not long before the representation elec- tion, Dilworth told those in attendance that, if employees brought the Union in, he would not even talk with them about a pay raise the following October Incentive payments began to increase markedly in Sep- tember 1989, after a new wafenzer was installed and functioning, because the production capacity of the plant increased markedly Between September 1988 and March 1989, monthly incentives ran from $ 98 to $1 99, a major- ity were in excess of $1 50 an hour Dilworth testified that it was within his prerogative as division manager to reduce production incentives and that he had done so on occasion at other plants He also said that, while he was watching the rates at Dungannon carefully, he had not as yet taken any action to lower them, notwithstanding the fact that the Respondent had told employees when the program was instituted that incentive rates would not exceed $1 an hour No increase in the base rates was granted to produc- tion and maintenance employees at Dungannon m 1988, although there was a lively anticipation on the part of employees that an across-the-board increase would take place Some salaried employees received pay raises Dil- worth testified that he had decided against any such in- crease because employees were doing so well with the incentive rates that any increase m base rates would serve only to decrease what they were making under the incentive program Since the validity of the certification was still being tested in the fall of 1988, the Respondent had not as yet accorded recognition to the Union, and there is no contention that the question of base rate in- creases was in any way negotiated with the Union at that time II ANALYSIS AND CONCLUSIONS A Independent Violations of Section 8(a)(1) of the Act The Respondent violated Section 8(a)(1) of the Act by the following acts and conduct (a) It is undemed in the record that, in the summer of 1988, McConnell and Supervisor Brad Dodge held a conversation at the Dungannon plant concerning a pro- spective across-the-board increase in the fall Dodge told McConnell that the Houlton employees had already re- ceived an increase but that Dungannon employees would receive nothing because of the Union Such a statement amounts to an interference with protected activities and a repnsal for union activities which violates Section 8(a)(1) of the Act (b) At or about this same point in time, Supervisor Tom Moore also told McConnell and Finch that the Company was not going to give Dungannon employees a raise because the Union had come into the plant Like Dodge's statement, Moore's statement is undemed on the record and, for the same reasons, constitutes a violation of Section 8(a)(1) of the Act (c) In the course of his conversation with McConnell and Finch, Moore also told them that, because of the Union, the Company was not going to upgrade any mill- wrights or electncians This statement violates Section 8(a)(1) of the Act (d) In September 1988, Dulohery instructed McCon- nell not to wear a baseball cap with a union logo on it Supervisor Moore had been wearing a baseball cap bear- ing a company insignia but his choice of head covenng apparently did not offend Dulohery When McConnell argued with Dulohery and asked repeatedly for a reason, Dulohery gave none Most significantly, Dulohery did not insist that McConnell wear a hard hat in place of a baseball cap They were speaking in the press room, an enclosed area for which safety helmets were not re- quired, so all that Dulohery told McConnell on this point was "if" he wanted to wear a hat, he should wear a hard hat bearing the company logo In the absence of special circumstances, an employer may not interfere with an employee's right to wear a union button at work Republic Aviation Corp v NLRB, 324 U S 793 (1945), Burger King Corp, 265 NLRB 1507, enfd 725 F 2d 1253 (6th Cir 1984) No such special circumstances exist here to justify Dulohery's order Accordingly, by directing McConnell to cease wearing a cap bearing a union logo, the Respondent herein violated Section 8(a)(1) of the Act B Warning Notices to Vautruz and McConnell The Respondent's animus toward the unionization of the Dungannon plant has been particularized above in great detail It conducted a vigorous campaign against the Union, even instructing its foremen to take employ- ees aside in their offices to read them the texts of various newspaper articles disparaging unionism Its personnel director referred to union employees behind their backs as "assholes" and the production manager called them "s o b 's" Before the election the Respondent was keep- ing union activities under close surveillance, adding su- pervisory manpower to a particular crew which it re- garded as a hotbed of union activity One supervisor was told to stay in the "hip pocket" of a suspected union sup- porter and watch him carefully for safety violations The same supervisor was also told to keep an eye on Vautnn, using surreptitious approaches, if necessary, to catch him "screwing off" When a union victory became certain, supervisors were told to keep certain union adherents closely in view in order to get something on them so that they could be discharged The only restraint laid upon their zeal was to wait a while so that the victims of their efforts could not effectively seek redress from the Board Such statements, undemed in the record, disclose not only hostility toward union adherents but a company plan for getting rid of them Animus was also demon- 26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD strated in this case by the commission of independent violations of Section 8(a)(1) of the Act found above Respondent was well aware of which of its employees supported the Union Vautnn and McConnell were prominent among this number Personnel Director Ham- mond mentioned their names in this regard on more than one occasion to other supervisors and in a disparaging tone Vautnn had passed out literature on several occa- sions at the plant gate, argued the union cause with Plant Personnel Director Sandy Willis, attended several union meetings, testified or held himself available to testify for the Union at the representation hearing and at the hear- ing on objections, and served as union observer at the representation election He was viewed by management as an individual who was "bucking for" the position of union president ' 1 McConnell began his activity on behalf of the Union before the representation petition was filed in 1987 He attended union meetings and dm- tnbuted leaflets to employees at the plant gate on two or three occasions He wore a union insignia on a baseball cap at the plant and engaged in a heated argument with the plant manager when the latter insisted that McCon- nell wear something else The warning he received in January 1989, which resulted in a 3-day suspension, came just days after his supervisor had warned him to be care- ful because the plant management was trying to get something on him If a discriminatorily motivated employer sets about to find something on an employee in order to discipline or discharge him, it is immaterial whether it is successful in actually coming across a genuine rule infraction or a piece of poor work in the course of its hunting expedi- tion Gencorp, 294 NLRB 717 (1989) A violation occurs whenever it takes an adverse action, based upon its on- going pursuit, which places the employee's job in jeop- ardy In this case, a hostile employer set out to get both Vautnn and McConnell and it got them The fact that this effort took a while was all part of its announced strategy—to strike while the iron was cold so that a public agency would be induced to misconstrue its de- signs The fact that a discharge (or a suspension) may take place 4 months," 6 months," or even 17 months 14 after any overt union activity on the part of the discn- mmatee does not immunize an employer from responsi- bility for a discriminatory discharge In this case, the wnteups given to Vautnn and McConnell charged them with trivial job deficiencies which, in the case of other employees, normally did not result in disciplinary action at all The argumentative tone of Dulohery's wnteups and the fact that they were usually written in the third person indicate that he was more concerned with prepar- ing documents for inspection by an administrative law judge rather than for the correction of two poorly per- , 1 Before the election, Vermillion, who was then holding a nonsupervi- sory position, told Vautnn that employees would be making a mistake to vote for the Union, arguing that a union could do nothing for them He insisted the Company could do what it pleased with union employees and, even though they might file charges, the Company could "get nd of all of you" A few months later, after assuming a supervisory position, Vermillion assisted in the company effort to get rid of Vautnn 12 Inc , 259 NLRB 1285 13 Marcus Management Inc , 292 NLRB 251 (1989) 14 J P Stevens & Co, 167 NLRB 258 (1967) forming employees In short, the wnteups given to Vau- tnn and McConnell in the fall of 1988 and early winter of 1989 were part of a paper trail which was being laid by the Respondent to support the eventual removal of two leading union adherents whose presence on the com- pany payroll was a matter of great concern and displeas- ure long before these job deficiencies were ever noted See Chopp & Go, 295 NLRB 1058 (1989) Vautnn had barely assumed the position of press oper- ator in August 1988, when Dulohery began making memos to the file about his job deficiencies These memos were not a part of the Respondent's regular disci- plinary procedure and were placed in Vautnn's person- nel folder without his knowledge 15 He first learned of these matters a few days before the hearing in this case when they were obtained under subpoena by the General Counsel They can hardly be called reprimands when they were not given to the reprimanded employee Many of the items noted by Dulohery, such as the press being out of sequence or the kicking out of the pumps, related to deficiencies in the machinery, not the performance of the operator The building up of plugs, noted by Dulo- hery in his early memos, is a commonplace occurrence on the production line Vautnn simply denied one of the allegations in Dulohery's memo, namely that he had left the core former system off I credit his denial Vautnn was criticized for not turning the press to semiautomatic and completing the press cycle rather than seeking help from the maintenance department when the press stopped I credit Vautnn's testimony that the press in question would not work on semiautomatic and that he had tried unsuccessfully to communicate this fact to Dulohery Vautnn was reprimanded for closing a press on a pallet, thereby breaking the pallet Pallets are a cheap item, made of waferboard and kept on hand in the warehouse in case they are needed for replacement of existing pallets Such infractions can hardly be charac- terized as other than trivial On September 9, Vautnn was given a formal discipli- nary warning for failing to restart the formers after they had been stopped He failed to do so because some mill- wrights were still working in the area He explained his reason for not doing so to Vermillion but Vermillion re- fused to accept the explanation, stating that Vautnn should have known that he wanted the whole line run The production sheets for that day show that Vautnn's shift had the second highest production among the three crews that were working, so the incident had little or no bearing on the Respondent's output and was simply one more event which was seized upon to apply the Re- 15 the cases of both Vautnn and McConnell, the Respondent was dealing with two employees who had been with it for almost as long as the Dungannon plant had been in operation Apparently both had per- formed satisfactonly in a variety of other positions before being appoint- ed press operators They had secured their appointments as a result of competitive bidding It is some indication of the Respondent's discrimina- tory Intent that, when the respective performances of Vautnn and Mc- Connell as press operator were beginning to be called into question, they were not sent back to former jobs where they had done well but were both threatened with discharge, and, in the case of Vautnn, actually dis- charged LOUISIANA-PACIFIC CORP 27 spondent's progressive discipline procedure to a leading union adherent On December 8, Vautnn failed to adjust some gauge settings as a result of which the production line was down about 45 seconds and an undisclosed amount of board was produced having an undesired thickness Since 2 percent of the Respondent's normal monthly run of waferboard—about 200,000 square feet—is downgrad- ed, this incident can hardly amount to anything other than the most trivial daily occurrence However, it was also seized upon as the basis for a disciplinary warning, as well as a 3-day suspension The event which led to Vautnn's discharge occurred on December 22 A mat had come out of the press and Vermillion arrived at the scene to insert it back into the press by manual effort He gave Vautnn, who was in the press booth, a signal to start the press and Vautnn com- plied with the order Unknown to either person a pallet had slipped out of the press just behind Vermillion and was crushed just as the press was closing on it For this infraction, Vautnn was discharged, even though he was acting under supervisory orders Vermillion, who was standing next to the protruding pallet, was at least in pan delicto with Vautnn, if not the moving cause of the de- struction of the pallet He was given no discipline what- soever, and in fact was an active participant in the col- lective effort to pin the whole incident on Vautnn When Vautnn insisted that he did not see, and could not have seen, the protrudmg pallet, the Respondent's only answer was that Vautnn should have seen it It laid no such obligation upon Vermillion, who was much closer to the scene, excusing Vermillion from any culpability because his back was to the press In the arena of what should have happened, Vermillion should have turned around and made sure the press was ready for operation before instructing an employee to close it However, a double standard was invoked on this occasion to bnng about a result which had been determined many months before, namely the elimination from the factory of the Union's most prominent mplant leader In light of the above considerations, I conclude that the repnmands in question were placed in Vautnn's file as part of an ongo- ing plot designed to pave the way for his discharge, and that the discharge on December 27 was prompted by union considerations, not production considerations The latter were merely used as a pretext to bnng about the long anticipated conclusion of Vautnn's employment In discharging Richard Vautnn, the Respondent violated Section 8(a)(1) and (3) of the Act On October 24, 1988, McConnell was given a formal reprimand for closing a press with the headbar inside The record indicates that Pam Stidham, another employ- ee, was guilty of a similar infraction but was not given any discipline (She was written up but her discipline was revoked ) There was no damage to the headbar, no recorded downtime on the press, and no damage to the press as a result of this error On November 29, McCon- nell closed a press on seven mats rather than the normal eight mats For this offense he was given a second formal reprimand The record is replete with instances in which supervisors have told employees, including but not limited to McConnell, that if a mat slips out of the press, the operator should simply close the press on the remaining seven mats While this is not the preferred procedure, it has been an acceptable one in the eyes of many of the Respondent's managenal personnel for a long time However, McConnell was disciplined when he followed this practice It is apparent that both events were pretextual efforts to find something derogatory on McConnell that could be recorded in his personnel file On January 24, 1989, McConnell was suspended just a few days after his foreman, Mickey Mullins, had warned him that the Company was trying to get something on him because of his union activities On January 23, Mc- Connell neglected to change the settings on a gauge in the control room when changing from the production of 3/8-inch board to 7/16-inch board About 6000 square feet of 3/8-inch board was produced and then were stamped as 7/16-inch board further down the production line before this error was caught The board was strapped in bundles but has not been sold and is sitting in the factory awaiting a buyer 16 Like a similar offense at- tnbuted to Vautnn, the production of a small amount of substandard board is a routine occurrence at the Dun- gannon plant, where 2 percent of the monthly produc- tion is normally downgraded In this instance, the board in question was not substandard nor was it destroyed or damaged, it was simply mislabeled It can be properly la- beled and sold along with similar product whenever the Respondent chooses to do so However, this event gave the Respondent one more opportunity to harass a leading union adherent and it took the opportunity enthusiastical- ly By suspending Larry McConnell in the manner de- scribed above because of his union activities, the Re- spondent violated Section 8(a)(1) and (3) of the Act Dilworth admitted that there is a practice, involving all of the 10 plants in his division, of evaluating employ- ees once a year for possible increases, either in their base rates or their incentive rates or both It is his position that a wage evaluation is not the equivalent of a wage increase and that sometimes his evaluations result in deci- sions not to grant any increases At Dungannon, employ- ees got an across-the-board base rate increase in August 1986, when the plant was not covered by an incentive program, and again in October 1987, after the plant came to be covered by an incentive program There was no in- crease in the fall of 1988 for production and maintenance employees at Dungannon, although employees at other plants, such as Houlton, received increases upon being evaluated, and salaried employees at Dungannon re- ceived an increase as well in October 1988 Dilworth tes- tified that he did evaluate Dungannon employees for an increase in the fall of 1988 but decided against giving out any raises, either in the base rate or the incentive rate, because employees were doing so well under the incen- tive program that an increase in their base rates would 16 Respondent mainly produced 7/16-inch board at Dungannon How- ever, It produces 3/8-inch board at other plants and evidently must produce some 3/8-Inch board at Dungannon since the error committed by McConnell on January 23 was a failure to adjust the press from one production mode to another Despite protestations by the Respondent that the error had caused it great loss, there is no doubt that It can dis- pose of this product just as It disposes of other 3/8-inch board which it produces 28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD adversely affect their incentive earnings As noted, a dif- ferent determination was made at that time respecting Dungannon's salaried employees, who are also benefici- aries of the plant's overall incentive program For a period of 2 years, employees were told by an array of supervisors that they would be evaluated each fall in their base rates, and no distinction was ever drawn between evaluation and pay increase Indeed, in common industrial relations parlance, evaluation means pay in- crease and the Respondent's employees were entitled to assume as much Just before the representation election, Chase told a group of employees that the Company would not even talk about an increase in the fall if the Union came into the plant In the summer of 1988, two other supervisors told employees that the reason they were not going to get an increase and the reason that the employer was not going to reclassify any millwrights and electricians was the fact that they had selected a union These statements are enough to support a finding that the withholding of increases in base rates in the fall of 1988 to Dungannon's rank-and-file employees was dis- criminatorily motivated However, the General Counsel has not elected to prosecute the case on that theory, so no finding of a discriminatory witholdmg of an increase will be made Instead, the General Counsel has elected to complain that the Respondent withheld increases in base rates in the fall of 1988 in derogation of its duty to bargain with the Union In the fall of 1988, the Union was the duly designated collective-bargaining representative of the production and maintenance employees in the Respond- ent's Dungannon plant The fact that the Respondent had elected to challenge the results of the representation election and to delay the certification of the Union for 14 months in no way excused it from its duty to bargain while objections to the election were pending Advertis- er's Mfg Go, 294 NLRB 740 (1989) Respondent did, in fact, have a practice of granting increases in the base rates of the Dungannon employees, in the fall of each year, both before and after the implementation of an in- centive wage program It unilaterally discontinued this practice at Dungannon, at least as far as bargaining unit employees were concerned Whether the discontinuance of the practice and the withholding of an increase was motivated by discrumnatory reasons, by good or bad business judgment, or was merely an attempt to do the best thing possible for Dungannon employees as Dil- worth suggested, the decision was a mandatory subject for negotiations with the Union Having failed to bargain collectively in good faith with respect to this decision, the Respondent violated Section 8(a)(1) and (5) of the Act On the foregoing findings of fact and on the entire record considered as a whole, I make the following CONCLUSIONS OF LAW 1 Louisiana-Pacific Corporation is now and at all times material has been an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act 2 United Brotherhood of Carpenters, Mid-Atlantic In- dustrial Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act 3 All regular full-time and regular part-time produc- tion and maintenance employees, truckdnvers, and bull- dozer operators employed by the Respondent at its Dun- gannon, Virginia plant, excluding office clerical employ- ees, guards, and supervisors as defined in the Act consti- tute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act 4 At all times material, the Union has been the exclu- sive collective-bargaining representative of all of the em- ployees in the unit found appropriate in Conclusion of Law 3 for the purpose of collective bargaining within the meaning of Section 9(a) of the Act 5 By failing and refusing to bargain collectively m good faith with the Union concerning its decision to dis- continue the practice of granting to employees annual in- creases in their base rates and by unilaterally withholding such increases, the Respondent violated Section 8(a)(5) of the Act 6 By issuing oral or written warnings to Richard Vau- tnn and Larry McConnell in reprisal for the union ac- tivities and because of their union sympathies, and by suspending and later discharging Richard Vautnn and suspending Larry McConnell because of their union ac- tivities and union sympathies, the Respondent violated Section 8(a)(3) of the Act 7 By engaging in the unfair labor practices set forth above in Conclusions of Law 5 and 6, by telling employ- ees that they would not receive a wage increase and would not be reclassified because they had selected the Union as their collective-bargaining representative, by prohibiting employees from wearing union insignia at the plant, and by telling employees that they would be close- ly watched because of their union activities, the Re- spondent violated Section 8(a)(1) of the Act 8 The aforesaid unfair labor practices have a close, in- timate, and adverse effect on the free flow of commerce within the meaning of Section 2(2), (6), and (7) of the Act REMEEN Having found that the Respondent has engaged in cer- tain unfair labor practices, I will recommend to the Board that it be required to cease and desist therefrom and to take certain affirmative actions designed to effec- tuate the purposes and policies of the Act Because this Respondent has evidenced a contmuing disposition to violate the rights of its employees and to evade its obli- gations under the Act, I will recommend a so-called broad 8(a)(1) remedy which is designed to suppress any and all violations of the Act Hickmott Foods, 242 NLRB 1357 (1979) I will recommend that the Respondent be required to offer full and immediate reinstatement to Richard Vautnn to his former or substantially equivalent employment, without prejudice to his seniority or to other benefits he previously enjoyed, and to make him and Larry McConnell whole for any loss of pay or bene- fits which they may have suffered by reason of the dis- criminations found in this case, in accordance with the LOUISIANA-PACIFIC CORP 29 formula set forth in the Woolworth case," with interest thereon computed at the short-term Federal rate used to compute interest on underpayments and overpayments of federal income taxes under the Tax Reform Act of 1986 New Horizons for the Retarded, 283 NLRB 1173 (1987) I will also recommend that the Respondent be required to expunge from the personnel records of Vautnn and Mc- Connell any and all memoranda and disciplinary warn- ings which were placed there in violation of the Act, and that the Respondent be required to post the usual notice advising its employees of their rights and of the results in this case The General Counsel requests that I recommend that the Respondent be required to bargain with the Union on request respecting wages, hours, and terms and condi- tions of employment, and that the Respondent be re- quired to grant to its Dungannon bargaining unit em- ployees an increase in their base rates "consistent with its 1987 increases or in an amount agreed upon by it and the Union" I have no reluctance in recommending a remedi- al order requiring bargaining in good faith and prohibit- ing the Respondent from making unilateral changes in wages, hours, and terms and conditions of employment, including the unilateral withholding of an annual increase in base rates However, I feel precluded from recom- mending an affirmative remedy which would require the Respondent to grant an increase in wages "consistent with its 1987 increases" to Dungannon employees since that would be equivalent to compelling the Company and the Union to agree to a substantive contractual pro- vision of a collective-bargaining agreement, a power withheld by Congress from the Board under the Act H K Porter v NLRB, 397 U S 99 (1970) On the basis of these findings of fact and conclusions of law and on the entire record considered as a whole, I make the following recommended" ORDER Respondent Louisiana-Pacific Corporation, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Unilaterally withholding annual increases in base rates from production and maintenance employees em- ployed by the Respondent at its Dungannon, Virginia plant, or unilaterally changing any wages, hours, or terms and conditions of employment of the employees (b) Refusing to bargain collectively in good faith with the Union as the exclusive collective-bargaining repre- sentative of its Dungannon, Virginia production and maintenance employees (c) Informing employees that they will not receive wage increases or job reclassifications because they se- lected the Union as their collective-bargaining represent- ative (d) Prohibiting employees from wearing union insignia at the plant F W Woolworth Co, 90 NLRB 289 (1950) 19 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (e) Informing employees that they will be closely watched because of their union activities (f) Issuing oral or written warnings to employees in re- prisal for their union activities and union sympathies (g) Discouraging membership in or activities on behalf of United Brotherhood of Carpenters, Mid-Atlantic In- dustrial Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO or any other labor orga- nization by placing illegal warnings in employee person- nel files, by suspending or discharging employees, or by otherwise discnmmatmg against employees in their hire or tenure (h) By any other means or in any other manner inter- fering with, restraining, or coercing employees in the ex- ercise of rights guaranteed to them by Section 7 of the Act 2 Take the followmg affirmative action necessary to effectuate the policies of the Act (a) On request, bargain collectively with United Broth- erhood of Carpenters, Mid-Atlantic Industrial Council, United Brotherhood of Carpenters and Jomers of Amer- ica, AFL-CIO as the exclusive collective-bargaining rep- resentative of as Dungannon, Virginia production and maintenance employees and, if agreement is reached, embody the agreement in a signed, written contract (b) Offer to Richard Vautnn full and immediate rein- statement to his former or substantially equivalent em- ployment (c) Remove from the personnel records of Richard Vautnn and Larry McConnell all disciplinary warning notices and related memoranda, and inform the employ- ees in writing that it has taken this action and that the disciphniry warning notices and related memoranda will not be used as the basis for future discipline (d) Make whole employees for any loss of pay or ben- efits which they have suffered by reason of the discrimi- nations found herein, in the manner described above in the remedy section (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll and other records necessary to analyze the amounts of backpay due under the terms of this Order (f) Post at the Respondent's Dungannon, Virginia plant copies of the attached notice marked "Appendix "19 Copies of the notice, on forms provided by the Regional Director for Region 11, after bemg signed by Respond- ent's authorized representative, shall be posted immedi- ately upon receipt and maintained by the Respondent 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond- ent to ensure that said notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director in wntmg within 20 days from the date this Order what steps the Respondent has taken to comply 19 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 Nation- al 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"