INTERTAPE POLYMER GROUP

INTERTAPE POLYMER CORP. 957 360 NLRB No. 114 Intertape Polymer Corp. and United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Al- lied Industrial and Service Workers Interna- tional Union, AFL–CIO–CLC. Cases 11–CA– 077869, 11–CA–078827, 10–CA–080133, and 11– RC–076776 May 23, 2014 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY MEMBERS MISCIMARRA, HIROZAWA, AND SCHIFFER On February 20, 2013, Administrative Law Judge Robert A. Ringler issued the attached decision. The Re- spondent and the Charging Party each filed exceptions and a supporting brief. The Respondent also filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs1 and has decided to affirm the judge’s rulings, findings,2 and conclusions as modified below and to adopt the recommended Order as modified and set forth in full below.3 I. The Respondent operates a tape manufacturing facility in Columbia, South Carolina. The Union filed a petition seeking to represent the facility’s production and mainte- nance employees. An election was held on April 26 and 27, 2012, and the tally of ballots showed 97 for and 142 against the Union. This case involves allegedly unlawful 1 The Respondent has requested oral argument. The request is de- nied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. 2 The Respondent and the Charging Party have excepted to some of the judge’s credibility findings. 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 Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 We have amended the judge’s conclusions of law consistent with our findings herein. We shall modify the judge’s recommended Order to conform to our findings and to the Board’s standard remedial lan- guage. The judge recommended a broad order requiring the Respond- ent to cease and desist from violating the Act as found and “in any other manner.” We find that a broad order is not warranted under the circumstances of this case, and we shall substitute a narrow order, requiring the Respondent to cease and desist from violating the Act as found and “in any like or related manner.” See Hickmott Foods, 242 NLRB 1357 (1979). Similarly, we shall delete from the judge’s rec- ommended Order the requirement that the notice be read to employees by a responsible official of the Respondent, in the presence of a Board agent. See Ishikawa Gasket America, Inc., 337 NLRB 175, 176 (2001), enfd. 354 F.3d 534 (6th Cir. 2004). We shall substitute a new notice to conform to the Order as modified. and objectionable conduct by the Respondent during the union organizing campaign. As discussed below, we agree with the judge that the Respondent violated Section 8(a)(1) of the Act by: (1) interrogating employee Johnnie Thames regarding his union sentiments; (2) confiscating union literature from the employees’ breakroom; and (3) engaging in surveil- lance of employees’ union activities by leafleting at the plant gate while union supporters were simultaneously handing out leaflets there.4 We reverse, however, the judge’s finding that the Respondent violated Section 8(a)(1) and engaged in objectionable conduct by threat- ening employees that it would be futile to select the Un- ion as their collective-bargaining representative. 1. The interrogation of Thames The credited evidence establishes that, during the Un- ion’s organizing drive, but before the Union filed its rep- resentation petition on March 16, 2012, Supervisor Bill Williams approached employee Johnnie Thames at his workstation and questioned Thames about his view of the Union. As Thames described the conversation, Williams “was asking me what I think about the Union, and said that . . . if you don’t think it’s good then, that it can hurt you, and so I didn’t respond to him. I just walked away.” The judge found that Williams’ questioning of Thames was coercive, and thus violated Section 8(a)(1) of the Act. We agree for the following reasons. The Board considers the following factors, among oth- ers, in determining whether questioning of this nature is unlawful: 1. whether there is a history of employer hostility to or discrimination against protected activity; 2. the nature of the information sought; 3. the identity of the questioner; 4. the place and method of interrogation; 5. the truthfulness of the employee’s reply. Phillips 66 (Sweeny Refinery), 360 NLRB 124, 128 (2014); Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), enfd. sub nom. NLRB v. Hotel Employees Local 11, 760 F.2d 1006 (9th Cir. 1985). The Board also considers, when relevant, the nature of the relationship between the supervi- sor and the employee. Id. Applying and balancing those factors here, we find that Williams’ questioning of Thames was unlawful. Williams directly asked Thames to reveal his view of the 4 We also adopt, for the reasons stated by the judge, the judge’s dismissal of the complaint allegations that the Respondent violated Sec. 8(a)(3) by discharging Johnnie Thames and by denying Wilton Dantz- ler overtime opportunities. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958 Union.5 Although a low-level supervisor, Williams was Thames’ direct supervisor, reasonably tending to make the questioning that much more threatening. See, e.g., Station Casinos, LLC, 358 NLRB 1556, 1557–1558, 1605 (2012). Williams, moreover, offered no justifica- tion for his questioning or assurances against reprisals. See Norton Audubon Hospital, 338 NLRB 320, 321 fn. 6 (2002). The preexisting hostility between Williams and Thames6 and Thames’ unwillingness to answer Williams further weigh in favor of finding a violation. See Cama- co Lorain Mfg. Plant, 356 NLRB 1182, 1183 (2011). Last, we find that Williams’ comment that “it can hurt you” would have exacerbated the already coercive nature of his inquiry into Thames’ opinion of the Union.7 For those reasons, we affirm the judge’s finding that Williams’ interrogation of Thames violated Section 8(a)(1) of the Act. 2. The confiscation of union literature The Respondent has a policy prohibiting distributions during working time and in working areas. Before the union campaign began, literature (e.g., newspapers, mag- azines, etc.) left in the breakroom remained untouched until at least the end of the workday. But after the Union filed its representation petition, supervisors monitored the breakroom much more closely and began removing all literature, including that related to the union cam- paign, shortly after employees finished their breaks. The Respondent’s change in policy as a reaction to and coun- termeasure against the union campaign was unlawful. See, e.g., Bon Marche, 308 NLRB 184, 185 (1992).8 5 Compare Phillips 66, above, 360 NLRB at 124 and 128 (finding unlawful questioning about employee’s own opinion of the union) with Temp Masters, Inc., 344 NLRB 1188, 1188 (2005) (dismissing an alleged interrogation in part because the supervisor did not attempt to obtain any individual employee’s view of unionization), enfd. 460 F.3d 684 (6th Cir. 2006). 6 On December 21, 2011, Williams disciplined Thames for arguing with him, and on March 6, 2012, upon observing Thames sleeping on the job, Williams summoned a witness because he was concerned about a possible hostile reaction from Thames. 7 Although the Respondent committed subsequent violations of the Act, the absence of a history of employer hostility to protected activity predating the interrogation of Thames arguably weighs against finding a violation in this case. See Temp Masters, above; John W. Hancock, Jr., Inc., 337 NLRB 1223, 1224 fn. 5 (2002), enfd. mem. 73 Fed. Appx. 617 (4th Cir. 2003). The place and method of the interrogation (an informal conversation at Thames’ workstation) also arguably weighs against a finding that Williams’ questioning was coercive. Compare Morgan Services, 284 NLRB 862, 863 (1987) (summoning employees from work to manager’s office was “unusual event creating an atmos- phere of unnatural formality”). We find, however, that these factors are outweighed by the remaining factors, all of which favor finding a viola- tion. 8 Even if the Respondent is correct that this is not the precise theory of the complaint, which alleged that the Respondent “enforced the rule . . . selectively and disparately, by prohibiting union distributions in 3. Surveillance of employees’ leafleting By March 2012, employees had been observed by the Respondent distributing union leaflets at the plant gate. On April 24 and 25, 2012, while union supporters were handing out leaflets to employees at the plant gate just days before the election, several of the Respondent’s supervisors simultaneously distributed leaflets at that location. We agree with the judge that the Respondent’s behavior was “out of the ordinary” and supports a find- ing of unlawful surveillance. See Arrow Automotive Industries, 258 NLRB 860, 860 (1981), enfd. 679 F.2d 875 (4th Cir. 1982). The presence of supervisors at the plant gate where employees arrived and left was itself unusual. See id.; PartyLite Worldwide, Inc., 344 NLRB 1342, 1342 (2005). Further, management officials typi- cally communicated with employees in meetings, and there was no evidence that, prior to the campaign, it had leafleted its own employees. As the judge found, the Respondent’s supervisors could see not only the employ- ees distributing leaflets, but also which employees ac- cepted or rejected the leaflets, and any interactions be- tween them.9 The Respondent argues that it was simply exercising its 8(c) right to communicate with its employees. But such communication is unlawful if it includes out-of-the- ordinary conduct that places employees’ union activities under surveillance. Accordingly, the Respondent’s surveillance of its em- ployees’ leafleting violated the Act. 4. The threat of futility We find merit in the Respondent’s exception to the judge’s finding that the Respondent violated Section 8(a)(1) and engaged in objectionable election conduct by non-work areas, while permitting nonunion distributions in non-work areas,” the issue of a change in the Respondent’s practice is closely related to the subject matter of the complaint and has been fully litigat- ed. Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). Significantly, the Respondent does not argue that lack of notice prevented it from introducing exculpatory evidence or that it would have altered its litigation strategy had the allegation been pleaded in this manner. Id. at 335. In these circumstances, we find it proper to affirm the judge’s finding of a violation. See, e.g., Enloe Medical Center, 348 NLRB 991, 992 (2006). 9 Although we attribute no relevance to which group of leafleters ar- rived first when, as here, the employer’s activity is out of the ordinary, we note that the judge found that “[o]n some occasions, [the Respond- ent’s] team arrived to leaflet first, while on others, the Union group first appeared.” The Respondent argues that the present case is “on all fours” with Arrow-Hart, Inc., 203 NLRB 403 (1973). We disagree. Unlike here, the employer in Arrow-Hart was not doing anything out of the ordinary when its supervisors distributed leaflets 15 feet inside the entrance while the union distributed leaflets outside the door itself, as it was a common practice for supervisors to be in that location at that time. Id. at 405. INTERTAPE POLYMER CORP. 959 threatening employees that it would be futile to select the Union as their collective-bargaining representative. The judge’s finding of an unlawful threat of futility was based on comments made by the Respondent’s senior vice president of administration, Burge Hildreth, at a meeting with employees on March 26, 2012. The credit- ed testimony shows that Hildreth stated that he did not have to bargain with the Union, that he could engineer a lockout and replace the employees, and that, if employ- ees wanted to earn a higher wage, they could “get on a bus and go to California.” As the Respondent points out, the complaint alleged that Hildreth made an implied threat of discharge at the meeting, but there was no complaint allegation of an un- lawful threat of futility.10 The judge questioned counsel for the General Counsel specifically about Hildreth’s comments and suggested that “it seems more like . . . futility of getting a union” and that “futility of selecting the Union” might be the more accurate allegation. Coun- sel for the General Counsel, however, made it clear that he was not pursuing a theory that Hildreth’s comments were unlawful as a threat of futility. He stated that the General Counsel’s position was that Hildreth’s “get on a bus to California” statement amounted to an unlawful threat of termination. Following his exchange with the judge on the record, and notwithstanding the judge’s observations, counsel for the General Counsel never sought to amend the complaint and never argued that the Respondent made an unlawful threat of futility. Under these circumstances, we find that the Respondent did not have fair notice that the judge would make findings based on this unalleged theory, and we reverse the judge’s finding of a violation.11 10 The judge failed to address the complaint’s implied-threat allega- tion, but no party has excepted to this failure or otherwise argued the merits of the allegation to the Board. Accordingly, we do not pass on the issue. 11 See, e.g., Sierra Bullets, LLC, 340 NLRB 242, 242–243 (2003) (judge improperly found violation based on theory GC expressly chose not to litigate); Q-1 Motor Express, 308 NLRB 1267, 1268 (1992) (reversing judge’s finding of unalleged violations where counsel for the General Counsel stated at the hearing that evidence of unalleged viola- tions was presented as background), enfd. 25 F.3d 473 (7th Cir. 1994), cert. denied 513 U.S. 1080 (1995). Member Hirozawa would adopt the judge’s finding that the Re- spondent unlawfully threatened employees by stating that it would not negotiate with the Union, that it could lock out and replace them, and that bargaining would be futile. Even though these violations were not specifically alleged in the compliant, they are closely connected to other complaint allegations and were fully and fairly litigated. See Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). Contrary to his colleagues, Member Hirozawa would not find that counsel for the General Counsel made it clear that he was not pursuing a theory that the Respondent made an unlawful threat of futility. Upon questioning by the judge, the General Counsel simply stated his position that the Respondent’s statement that employ- II. Having found that the Respondent committed unfair labor practices during the critical period, we also agree with the judge’s recommendation to set aside the elec- tion. Specifically, the Respondent confiscated union literature, preventing employees from receiving union communications in their breakroom, and unlawfully ob- served not only employees distributing union leaflets, but also arriving and departing employees, who either ac- cepted or rejected the Union’s materials.12 In these cir- cumstances, the impact of the employer’s unlawful con- duct cannot be trivialized as isolated or de minimis. Ra- ther, it falls squarely within the Board’s longstanding policy to direct a new election where the unfair labor practices committed during the critical period before the election interfered with employees’ free choice. See, e.g., Clark Equipment Co., 278 NLRB 498, 505 (1986), quoting Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). We shall remand this proceeding for the pur- pose of conducting a second election. AMENDED CONCLUSIONS OF LAW Delete the judge’s Conclusion of Law 3(b) and reletter the remaining paragraphs. ORDER The National Labor Relations Board orders that the Respondent, Intertape Polymer Corp., Columbia, South Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about their un- ion sympathies and/or support. (b) Confiscating union materials from break areas for unlawful discriminatory reasons. (c) Placing employees under surveillance when they engage in union or other protected concerted activities. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days after service by the Region, post at its Columbia, South Carolina facility copies of the at- ees would “have to get on a bus and go to California” if they wanted higher wages was an implied threat of discharge. The General Coun- sel’s imprecise characterization of the statement did not amount to a disavowal of the theory that the Respondent unlawfully threatened that bargaining would be futile. 12 We do not rely on Williams’ unlawful interrogation of employee Thames before the petition was filed. See Ideal Electric & Mfg. Co., 134 NLRB 1275, 1278 (1961). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960 tached notice marked “Appendix.”13 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 11, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means. Reasonable steps shall be taken by the Respond- ent 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 cur- rent employees and former employees employed by the Respondent at any time since February 1, 2012. (b) Within 21 days after service by the Region, file with the Regional Director for Region 11 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. IT IS FURTHER ORDERED that the election held on April 26 and 27, 2012, in Case 11–RC–076776 is set aside and that Case 11–RC–076776 is severed and remanded to the Regional Director for Region 11 for the purpose of con- ducting a new election. [Direction of Second Election omitted from publica- tion.] MEMBER MISCIMARRA, dissenting in part. Unlike my colleagues, I would dismiss the complaint’s interrogation and surveillance allegations. Also, even if the surveillance allegation had merit, I believe the instant case does not warrant setting aside the election. In these respects, therefore, I respectfully dissent. Regarding the allegation of unlawful interrogation, I believe the General Counsel has not proven that Supervi- sor Bill Williams coercively interrogated employee Johnnie Thames. As my colleagues acknowledge, the place and method of questioning—an informal conversa- tion at Thames’ workstation—favor dismissal of this allegation, the Respondent had no history of hostility toward union activity, and there is no evidence that Wil- liams posed the question to elicit information upon which 13 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading “Posted by Order of the Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” to retaliate. I do not believe the nature of the information sought—Thames’ general thinking about the Union— involved a matter so sensitive as to outweigh these other factors. See Continental Industries, 279 NLRB 920, 920 (1986) (finding that employer lawfully asked employee “what [he] thought the union could do for [him] or the people”); St. Rita’s Medical Center, 261 NLRB 357, 361 (1982) (not unlawful to ask an older worker “what good a union could do her at her age”). Nor do I believe that Williams’ “it can hurt you” comment—when viewed in context—can reasonably be interpreted as rendering the discussion coercive. After asking Thames about the Un- ion, Williams stated, “[I]f you don’t think it’s good then, . . . it can hurt you.” This does not reasonably support a finding that Williams was suggesting the Respondent would retaliate against Thames for supporting the Union. At most, I believe such a comment—in the absence of other evidence of coercion—constitutes a statement of opinion that is lawful and unobjectionable. Regarding the allegation of unlawful surveillance, I disagree with my colleagues’ conclusion that the Re- spondent’s observation of employees’ open leafleting activity at the company gate was “out of the ordinary” and unlawfully coercive. The Respondent had a right, under Section 8(c) of the Act, to campaign against the Union on its own property. On April 24, the Respond- ent’s supervisors positioned themselves at the gate well before the employee-leafleters did. That morning, only supervisors leafleted at the gate, and that afternoon, em- ployee-leafleters positioned themselves at the gate after the supervisors returned there. Consistent with their ac- tions on April 24, supervisors returned to the gate the next morning and afternoon to distribute leaflets. There is no evidence that the supervisors knew or suspected that the employee-leafleters planned to engage in union activity at the gate on those dates. While the record shows that employees had leafleted at the gate back on March 22 and 23, there is no evidence that they did so again before the supervisors began distributing their leaf- lets on April 24. There is no evidence that supervisors located themselves at the gate to spy on employees’ un- ion activities. Under these circumstances, I would find that the supervisors’ observation was incidental to their lawful activities, not out of the ordinary or coercive, and I would dismiss the surveillance allegation.1 1 I do not agree with my colleagues’ attempt to distinguish Arrow- Hart, Inc., 203 NLRB 403 (1973). Although my colleagues suggest it was a common practice in Arrow-Hart for supervisors to be present near the entrance door, there is no indication in Arrow-Hart that super- visors had a preexisting practice of spending significant periods near the entrance distributing literature (which the supervisors did during the period leading up to the election). The judge, whose decision the Board adopted, did not dismiss the surveillance allegation because of a past INTERTAPE POLYMER CORP. 961 Finally, even if the surveillance allegation had merit, I believe the record would still warrant certifying the elec- tion results here, without setting the election aside. Un- der extant law, unfair labor practices do not warrant set- ting aside an election where the conduct is “so minimal or isolated that it is virtually impossible to conclude that the misconduct could have affected the election results.” Long Drug Stores California, 347 NLRB 500, 502 (2006) (internal quotation marks and citations omitted); see also Dal-Tex Optical Co., 137 NLRB 1782, 1786 (1962). In my view, it is not possible to conclude that the Respondent affected the lopsided outcome of this election (97 for and 142 against the Union) by expediting the cleanup of a break room that, at most, involved the removal of certain material for several hours on 2 days approximately 1 month before the election. The record demonstrates that employees had many other opportuni- ties to campaign and read union literature, the vote mar- gin was wide, and there is no evidence that more than a single employee knew of the Respondent’s action. Likewise, I do not believe the record supports a find- ing that the Respondent’s alleged surveillance of open leafleting could have affected the election results. It is implausible to suggest that employees changed their votes during a secret-ballot election merely because sev- eral supervisors, in the course of exercising their own right to communicate the Respondent’s views about un- ionization, witnessed certain individuals engaging in the open activity of distributing or accepting campaign lit- erature.2 For these reasons, as to the above issues, I respectfully dissent. 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. practice, but rather because “[a]n employer has the right to distribute election campaign material of its own . . . . And it has a right to do [it] at the very moment the union is trying to persuade the employees to a contrary view—certainly anywhere on its premises, in the inner reaches of the plant or at the front door, even if the door is made of looking- through glass.” 203 NLRB at 406. This same reasoning is applicable in the instant case. 2 As to this issue (whether to set aside the election), I apply Dal-Tex and its progeny in the instant case as existing Board precedent, but I express no view on the soundness of the “virtually impossible” stand- ard. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT coercively question you about your un- ion sympathies and/or support. WE WILL NOT confiscate union materials from break areas for unlawful discriminatory reasons. WE WILL NOT place you under surveillance while you engage in union 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. INTERTAPE POLYMER CORP. The Board’s decision can be found at www.nlrb.gov/case/11-CA-077869 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273–1940. Jasper Brown, Esq., for the Acting General Counsel. Michael D. Carrouth and Reyburn W. Lominack, III, Esqs. (Fisher & Phillips, LLP), for the Respondent. Benjamin Brandon, Organizer (United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Ser- vice Workers International Union, AFL–CIO–CLC), for the Charging Party. DECISION STATEMENT OF THE CASE ROBERT A. RINGLER, Administrative Law Judge. These cas- es were heard in Columbia, South Carolina, from October 9 to 12, 2012.1 The underlying charges were filed by the United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Al- lied Industrial and Service Workers International Union, AFL– 1 All dates herein are in 2012, unless otherwise stated. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 962 CIO–CLC (the Union). The resulting complaint alleged that Intertape Polymer Corp. (IPG or the Respondent) violated Sec- tion 8(a)(1) and (3) of the National Labor Relations Act (the Act) by, inter alia: interrogating employees; making threats; engaging in surveillance; confiscating union literature; with- holding overtime from Wilton Dantzler; and firing Johnnie Thames. The Union also filed objections to an April represen- tation election, which were based upon the same record and, thus, heard simultaneously. On the entire record, including my observation of the de- meanor of the witnesses, and after thoroughly considering the parties’ briefs,2 I make the following FINDINGS OF FACT I. JURISDICTION At all material times, IPG, a corporation, with a Columbia, South Carolina plant (the plant), has manufactured tape. Annu- ally, it purchases and receives goods valued in excess of $50,000 at the plant directly from points outside of South Caro- lina. Thus, it admits, and I find, that it is an employer engaged in commerce, within the meaning of Section 2(2), (6), and (7) of the Act. It also admits, and I find, that the Union is a labor organization, within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Introduction IPG has owned the plant since 1998, where it employs roughly 320 workers. The plant is led by Operations Manager Don Hoffman, who is aided by Human Resources Manager Sandra Rivers. Hoffman reports to Senior Vice President of Administration Burge Hildreth, who works at IPG’s Bradenton, Florida headquarters. B. Petition and Election On March 16, the Union filed a petition seeking to represent the plant’s production and maintenance employees. (GC Exh. 2.) On April 26 and 27, Region 11 of the National Labor Rela- tions Board (the Board) conducted a secret-ballot election in this bargaining unit (the unit): All full-time and regular part-time production and mainte- nance employees, including converting operators, converting technicians, coating operators, environmental operators, maintenance technicians, stockroom coordinator, mixing op- erators, quality assurance technicians, ship- ping/receiving/warehouse operators and lead operators em- ployed by [Intertape at the plant] . . . ; but excluding all office clericals, professional employees, guards and supervisors as defined in the Act.3 (GC Exhs. 3, 5.) The Union lost this election,4 and filed several objections. (GC Exhs. 4–6.) 2 The Union did not file a posthearing brief. 3 There were roughly 250 employees in the unit. 4 The Tally of Ballots revealed 97 employees voting for, and 142 against, unionization. (GC Exh. 5.) C. Preelection Activities 1. Captive audience meetings Prior to the election, IPG held several captive audience meet- ings, where Hoffman and Hildreth spoke. Counsel for the Act- ing General Counsel (the GC) averred that many of their strike- related comments were unlawful. (GC Exh. 1.) a. February 13 The testimony covering this meeting is mostly undisputed. Donnie Mack recalled Hoffman stating that IPG did not need a third party and was disappointed. Rivers testified that Hoffman read a prepared speech to employees. (R. Exh. 6.) Regarding strikes, his speech provided that, “in a union operation, you can have problems with . . . work stoppages . . . . [y]ou need to understand how a strike could affect . . . your job, and . . . fami- ly . . . .” (Id.) b. February 21 and 22 Rebecca Dunlop testified that Hoffman and Rivers spoke at this meeting. She recounted Hoffman stating that, “the Union could cause us to go on strike and that if we go on strike, that we would not get paid . . . [and were not] guaranteed to have our jobs.” (Tr. 184.) Rivers testified that she and Hoffman made Power Point presentations to employees, which were read verbatim. (R. Exh. 7.) Concerning strikes, their presentation provided: Since January 2000, the Steelworkers have called 254 strikes . . . . We hope that we never have a strike at IPG . . . . Because most contracts last about 3 years, employees could face another strike before even recovering what was lost [by going on a 49 day strike] . . . . A strike could affect our ability to maintain business relation- ships . . . . Steelworkers Strike in Brantford, Ontario  In August 2008, the Steelworkers called its mem- bers out on strike.  In March 2011, IPG was forced to close the Brant- ford plant for business reasons.  The plant was not closed to punish employees be- cause of the strike.  The plant was not closed because it was union.  Having the Steelworkers did not guarantee higher pay and benefits and did not guarantee job security. . . . (Id.) (emphasis as in original). Hoffman reiterated that he read his prepared speech verbatim. Given that Dunlop testified that Hoffman stated that the Un- ion would prompt a strike and cause job losses, and Rivers testified otherwise, I must resolve this factual dispute. For several reasons, I credit Rivers, who was honest, cooperative, and consistent, with a strong recall. Her testimony was sup- ported by documentary evidence and Hoffman. Dunlop, on the other hand, had a poor recall, and retreated from portions of her testimony during cross-examination. INTERTAPE POLYMER CORP. 963 c. March 25 and 26 Dantzler testified that, on March 26, he attended a meeting, where Hildreth stated: [H]e . . . will be conducting the negotiation with the Union . . . . [and] didn’t have to negotiate . . . [and] could cause a lockout. And that if we thought we were going to make $5 more an hour . . . , we could all get on the bus and go to Cali- fornia. (Tr. 66.) Mack testified that Hildreth said that, “if [we] . . . wanted . . . [to] be paid a higher cost of living . . . get on the bus to California.” (Tr. 141.) Shirley Gladden recalled Hil- dreth saying that, if employees want to make more money, they should “catch a bus and go to California.” Faith Epps recount- ed Hildreth announcing that employees could not expect to the make the same wages as California workers. Richard Dupree related that Hildreth said that “if the employees were to go on strike, that we would get replaced by temporary workers . . . . [and] we can be permanently replaced.” (Tr. 173–174.) Joseph Pearson reported that Hildreth stated that, if employees struck, they would be replaced. Rivers testified that Hildreth and Hoffman spoke. She re- called Hildreth commenting that California’s labor market mandated higher wages and, if employees wanted higher wag- es, they could work there. She denied that he said that employ- ees would be permanently replaced, if they struck. She added that the presentations flowed from power point slides, which did not discuss strikes or threaten discharge. (R. Exh. 8.) Hildreth testified that the Union deceptively contrasted IPG’s South Carolina wages to costlier labor markets, which prompt- ed him to discuss California. He denied stating that, if employ- ees struck, they would be replaced, or mentioning a lockout. He admitted that he mainly followed the power point slides, but, did not read this material “word for word.” Regarding Cali- fornia, he recalled stating: [W]hen we negotiate . . . with the Union . . . we're looking at . . . the competitive landscape for labor in that market, because you have to attract and retain qualified employees, so you've got to pay a decent wage . . . . And I said, if you're being told that the Union has contracts elsewhere that are paying much higher rates . . . , you need to ask them where they are, and I said I'll give you an example. If you're in California, . . . the hourly rates are . . . higher . . . , but so is the cost of your home and . . . other things . . . . So if you want that, you have to get on a bus and go to California and work, because that's where that rate is . . . . (Tr. 650–651.) Hoffman testified that he read his portion of the Power Point slides verbatim. He denied stating that workers would be re- placed during a strike. Daryl Hinton, a machine operator, stat- ed that neither Hoffman nor Hildreth stated that employees would be replaced, if the Union struck. Although it is essentially undisputed that Hildreth told em- ployees that, if they wanted a raise, they could get on a bus and go to California, there is a significant factual dispute concern- ing his other comments, which must be resolved. Specifically, the GC’s witnesses collectively stated that Hildreth said that he didn’t have to negotiate with the Union, could cause a lockout and IPG would replace employees, while Hildreth broadly de- nied such comments. For several reasons, I credit the GC’s witnesses. I found Hildreth to be less than credible; his de- meanor suggested a disdain for the Board’s processes. He ap- peared cagey, self-serving, and argumentative on cross. He also acknowledged that he did not read the slides in verbatim manner, which makes it plausible that his ad-libs yielded the contested commentary. Although I found Rivers to be mostly credible, even she admitted that Hildreth ran astray of the slides. On the contrary, many of the GC’s witnesses were cred- ible. Epps was clear, consistent, and honest, while Dupree was believable and even-keeled. Although it’s a closer call, Dantz- ler was also more credible than Hildreth. d. April 9 and 11 Joseph Pearson testified that, on April 9, he attended a meet- ing, where Production Manager Harry Plexico and Hoffman spoke. He recalled them stating that, if employees struck, they would be replaced. Rivers said that Hoffman and Plexico made power point presentations on April 9 and 11. (R. Exh. 10.) She denied hearing them tell workers that, if they struck, they would be replaced. The slides discussed unfair labor practice charges filed against the Union and strike fund procedures. (Id.) Hoffman and Plexico testified that they made a verbatim read- ing of the slides. Given that Pearson stated that employees were told that, if they struck, they would be replaced, and Plexico, Rivers, and Hoffman stated otherwise, I must make a credibility resolution. For several reasons, I credit Rivers over Pearson. As noted, she was a highly credible witness, whose testimony was consistent with Plexico, Hoffman, and documentary evidence. (R. Exh. 10.) e. Other April meetings5 The testimony covering these meetings was essentially un- disputed.6 Rivers testified that, in April, over 2 consecutive days, Hoffman made another scripted power point presentation. (R. Exh. 9.) Concerning strikes, this presentation provided: USW Strikes o I am not predicting that we would ever have a strike at IPG . . . . o However, strikes are a real part of the collective bargaining process . . . . o IPS’s Recent Experiences with Steelworkers Strike in Brantford, Ontario o In August 2008, the Steelworkers called its mem- bers out on strike. o IPG continued to operate the plant with replace- ments workers. o In March 2011, IPG . . . close[d] the Branford plant for business reasons. 5 The parties did not specify the dates of these meetings, beyond agreeing that such meetings occurred in April. 6 The GC did not proffer any witnesses, who discussed this meeting. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 964 o The plant was not closed to punish [striking] employees . . . . Questions/Answers on Strikes o Q: How often do the Steelworkers go on strike? o A: Since January 2000, the Steelworkers have called 254 strikes . . . . (R. Exh. 9.) She stated that Hoffman did not threaten perma- nent replacement or discharge. Hoffman reiterated that his comments were limited to a verbatim reading of the power point slides. 2. February conversation involving Williams and Thames7 Thames stated that, in February, he and Supervisor Bill Wil- liams had this exchange: [H]e was asking me what I think about the Union, and said that . . . it can hurt you, and so I didn’t respond to him. I just walked away. (Tr. 251) (grammar as in original). Williams denied this dis- cussion. (Tr. 690.) I credit Thames over Williams. Thames offered a detailed account and had a strong recall of this discussion. It is probable that Williams, a lower-level supervisor, was curious about Thames’ union sentiments at this nascent campaign stage and unaware that such queries might be unlawful. Williams’ testi- mony on this issue was not persuasive; he solely offered a gen- eral denial. 3. February 16—Robinson’s overtime comments Dantzler stated that, on February 16, he attended a meeting, which was interrupted by Supervisor Leon Robinson, who summoned him to his office. He recounted this exchange: [H]e said that he thought I was taking a break. And I told him, no . . . I wasn’t . . . . [H]e just told me that due to my . . . activities8 that my overtime was cut. . . . (Tr. 58). Robinson denied this statement. In this credibility dispute, I credit Robinson, who was open, cooperative, consistent, and helpful. Dantzler was not credible; he was less than candid, and seemed mainly motivated to advo- cate his overtime case, rather than aiding the proceeding. For example, although he rattled off the dates that he allegedly missed overtime and who was absent on such dates, he was unable to produce notes supporting his assertions, even though he claimed that he initially prepared notes. He, instead, ex- plained that he discarded his notes, once he committed these matters to memory. His inexplicable decision to destroy proba- tive evidence deeply devalued his testimony. 4. Mid-March—Plexico’s comments to Dantzler Dantzler testified that, in mid-March, Plexico said, “[T]his Union activity is going to get you all in trouble.” (Tr. 62.) On cross-examination, he admitted, however, that Plexico added that: he could talk to employees outside of work areas; he need- 7 The parties did not specify the exact date of this discussion. 8 Dantzler initially testified that Robinson said, “Union activities,” but then changed his testimony to “activities” only, although he averred that he was implying “Union activities.” (Tr. 58.) ed to stay in his assigned area during worktime; and he was warning him because he did not want him to get into trouble. (Tr. 109.) Plexico testified that in March, Ira Radin, manager, told him that Dantzler was seen talking to rubber department employees, without a work-related reason to be in the area. Plexico stated that he later told Dantzler that he should not visit departments, which were not required by his job. He denied raising his un- ion activity and stated that he previously advised him that he could solicit outside of work hours, or in nonwork areas. Den- nis Webber testified that Dantzler approached him in the rubber department during working hours and encouraged him to sup- port the Union, without a business-related reason to visit his workstation. I credit Plexico over Dantzler, who, as explained, was less than credible. Plexico was candid and straightforward; his testimony was plausible and corroborated by Webber. 5. March and April—Disposal of union flyers in the break area a. IPG’s solicitation and distribution rule At all material times, IPG has maintained the following rule: Solicitation by employees is prohibited when the person solic- iting or the person being solicited is on working time. Work- ing time is the time employees are expected to be working and does not include breaks, meals, before the shift starts, and after the shift ends. Distribution by employees during working time, as defined above, is prohibited. Distribution by employees in working areas is prohibited at all times. (GC Exh. 1.) b. GC’s position (1) March 22 Epps testified that, on March 22, she left union flyers in the breakroom, which is 35 feet from her workstation. She stated that, upon returning to her workstation, she observed Williams enter the breakroom and linger for 5 minutes. She said that, immediately after he departed, she re-entered the breakroom and noted that her flyers were missing. She stated that, before the campaign began, literature (e.g., newspapers, magazines, etc.) left in the breakroom remained untouched until, minimal- ly, the end of the workday. (2) March 23 Epps stated that, on March 23, she left union flyers on the breakroom counter. She stated that, while returning to work, she saw Williams enter the breakroom and discard her flyers. (3) March 29 Epps testified that, on March 29, she observed another coworker leave union flyers in the breakroom. She stated that, when she later observed that these flyers had been thrown away, she retrieved the flyers and replaced them on the counter. She stated that, upon returning to work, she saw Williams col- lect the flyers, and that, thereafter, they remained missing. INTERTAPE POLYMER CORP. 965 (4) April 23 John Jordan said that, on April 23, after distributing union literature in the breakroom, Supervisor Chuck Becknell advised him that he could no longer pass out such materials. He stated that he retrieved his literature and told Becknell that this di- rective was unlawful. c. IPG’s response Williams testified that he regularly cleans the break area and, consequently, removes union literature in the process. He add- ed that he also discards newspapers, soda cans, and other re- fuse. He stated that he normally cleans the breakroom, after break periods. Moran testified that supervisors normally assist the cleaning crew by cleaning up breakrooms. Becknell testified that, on April 24, Jordan told him to ask Hoffman why IPG was discarding union materials. He stated that Jordan never accused him of removing union flyers. He denied banning,9 or confiscating, such materials. On cross- examination, however, he admitted to periodically removing union flyers from the break area. (Tr. 476.) d. Credibility resolution For several reasons, I credit Epps’ testimony that: (1) Wil- liams entered the breakroom after she left on March 22, 23 and 29, and discarded union flyers; and (2) prior to the Union’s organizing drive, reading material was left in the break area, until, at least, the end of the workday. First, concerning de- meanor, Epps was open, candid, and keenly committed to re- laying truthful testimony. She was consistent, with a strong recall. Second, her testimony was corroborated by Jordan’s credible testimony that Becknell banned him from leaving out union literature.10 Third, Williams, who did not deny inadvert- ently disposing of union materials, implausibly stated that his actions were an accidental byproduct of his commitment to breakroom tidiness. I find it unbelievable that his actions were unintentional and that it was mere coincidence that his clean sweeps of the break area aligned with Epps leaving out union materials. Lastly, I found Becknell to be a less than credible witness.11 6. April 24 and 25—Leafleting at the Plant Gate These facts are mostly undisputed. Dantzler and others dis- tributed Union literature to workers at the plant gate on April 24 and 25, while supervisors John Thompson, Jason Beck, Moran, Plexico, and Michael Johnson simultaneously distribut- ed IPG’s campaign literature in close proximity. (R. Exhs. 11– 12). On some occasions, IPG’s team arrived to leaflet first, while on others, the Union group first appeared. Moran stated that, generally, management does not leaflet workers at the plant gate and personnel matters are addressed at meetings. 9 Michelle Diamond, who reportedly observed this conversation, said that Becknell never told Jordan that he could not leave out union literature. 10 Jordan had a believable demeanor, strong recall and was con- sistent. 11 I note that he indicated on direct that he did not discard union lit- erature and then admitted to doing so on cross. D. Thames’ Discharge 1. Work rules and progressive disciplinary system IPG maintains a progressive disciplinary policy, which pro- vides: Work rules are grouped into three levels (LEVEL I, LEVEL II, and LEVEL III). Violation[s] . . . will result in a . . . a writ- ten counseling, final written counseling, or discharge. The level of discipline . . . depends on the seriousness of the viola- tion, whether there were single or multiple violations, the time period over which the violations occurred, and other relevant factors. Typically, a LEVEL I work rule violation moves 1 step within the discipline system; LEVEL II work rule viola- tion moves 2 steps within the system; and LEVEL III work rule violation results in a Final Written counseling or dis- charge. A violation of . . . LEVEL II and III work rules are . . . more serious . . . and violations may result in immediate discharge . . . . (GC Exh. 7.) This progressive disciplinary system describes these successive steps: written counseling; second written counseling; final written counseling; and discharge. (Id.) 2. Prior discipline issued to Thames On December 21, 2011, Thames received a second written counseling for: Creating a disturbance . . . [by] arguing with supervisor . . . . [and] lack of application on the job . . . . (R. Exh. 1.) 3. Termination On March 6 (i.e., less than 3 months from the second written counseling), Thames was fired for “sleeping while on duty,” which is a LEVEL II offense that moved him 2 steps up the disciplinary ladder to the termination rung. (GC Exhs. 7, 9.) His discharge form stated: Johnny was seen sleeping in a chair upstairs by his Supervisor Bill Williams. There was work that could have been done, boxes on lift, helping . . . etc. (GC Exh. 9.) a. GC’s position Thames testified that, during his March 6 shift, he began feeling shaky due to diabetes, and retreated to the upstairs warehouse to rest and inject insulin. (GC Exh. 16.) He indicat- ed that Williams appeared and accused him of sleeping, which he adamantly denied.12 He averred that, at this time, he was talking with Javier Suarez, a colleague, who left after Williams 12 He admitted that Williams observed him seated with his hands clasped behind his head. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 966 arrived.13 He said that Williams returned 5 minutes later with Moran, who again asked why he was asleep. The GC argued that Thames was fired due to his relationship with Epps, a known union adherent. Thames testified that he and Epps were solely workplace friends and agreed that many workers socialized with her. He stated that Williams chided him about their friendship. He stated that, although he signed a union authorization card, IPG management did not observe this action. He said that, beyond signing a card, he performed no Union activities. He stated that he spent equal social time with Epps both before, and during, the campaign. (Tr. 278.) Epps testified that she began supporting the Union in Febru- ary. She stated that she distributed flyers, encouraged cowork- ers, secured seven authorization cards, wore union parapherna- lia, and leafleted.14 She claimed that Williams knew about these activities. She noted that she periodically socialized with Thames during work, although she conceded that she gets many daily visitors. She added that, besides Thames, none of her other visitors were disciplined. She stated Williams comment- ed that Thames visited her before the union campaign began. (Tr. 300.) b. IPG’s position Rivers indicated that, although Thames denied sleeping, she ultimately credited Williams, who is a trusted employee that lacked an obvious motivation to lie.15 (GC Exh. 10; R. Exh. 5.) She explained that, because Thames had a preexisting second written counseling, his current discipline, a LEVEL II offense, resulted in him moving up two steps on the disciplinary ladder and being fired. She added that employees are consistently issued LEVEL II violations for sleeping on the job. She stated that, although it would have been preferable to have multiple witnesses to Thames’ misconduct, a single witness did not pre- clude the issuance of discipline.16 Williams testified that, on March 6, after discovering Thames asleep, he summoned Moran to act as a witness. He averred that he chose not to immediately awaken Thames be- cause he was concerned about a potentially aggressive reaction. He noted that, when he returned with Moran, Thames was al- ready awake. He denied Thames raising his diabetes, knowing that Thames or Epps supported the Union, or ever thinking that they were more than workplace acquaintances. Moran testified that Williams approached her and reported that Thames was asleep. She said that she saw him seated with his hands clasped behind his head, but, not asleep. 13 On cross-examination, however, he agreed that he contrarily stat- ed in his sworn affidavit that Suarez remained, after Williams arrived. (Tr. 272.) 14 She admitted that several employees secured more authorization cards than she did. 15 She averred that, although Suarez did not observe Thames asleep, he was not present at all relevant times. 16 Jennifer Lucas, converting supervisor, testified that she disci- plined Marvin Johnson for sleeping on the job, without a second wit- ness. Dantzler opined that employees cannot be disciplined for sleep- ing on the job, without second witnesses; this less than credible opin- ion, however, was based upon conjecture and inconsistent with IPG’s personnel rules, which do not expressly require corroborating witness- es. (GC Exh. 7.) c. Past discipline issued for sleeping on the job This chart summarizes past discipline issued at the plant for sleep-related offenses: Name Dat e Incident LEVE L II Disci- pline in Last Yr. Disci- pline Issued M. Johnson Sep. 8, 200 6 Sleeping on duty Yes n/a 2nd Writ- ten F. Ma- son Jan. 15, 200 8 Sleeping on duty Yes Level 1 – failure to call in Final Written D. Wil- son Apr. 1, 200 8 Sleeping on duty Yes Level 1 – wasting materials Final Written D. White May 13, 200 8 Sleeping on duty, and other viola- tions Yes n/a Dis- charge (all viola- tions) E. Gadson Nov . 13, 200 8 Sleeping on duty Yes n/a 2nd Writ- ten R. Vinson Mar . 2, 200 9 Sleeping on duty Yes n/a 2nd Writ- ten E. Bradley Sep. 1, 201 0 Sleeping on duty Yes Level 1 – wasting materials Final Written S. Wingar d Jan. 31, 201 1 Sleeping in duty Yes Level 1 – not wear- ing safe- ty glass- es17 Final Written M. Johnson Nov . 29, 201 1 Sleeping on duty Yes n/a 2nd Writ- ten D. Wil- son May 18, 201 2 Sleeping on duty Yes n/a 2nd Writ- ten (R. Exh. 2; GC Exhs. 11, 12, 18). d. Credibility resolution Given that Thames denied sleeping and Williams testified 17 He received the level 1 safety violation at the same time that he received the level 2 sleeping on duty violation. INTERTAPE POLYMER CORP. 967 otherwise, this key factual dispute must be resolved. For sever- al reasons, I credit Williams. Regarding demeanor, Thames appeared to be a strong advocate on direct, but, less than help- ful on cross. His testimony was inconsistent with his sworn affidavit, where he claimed that Suarez was present, when Mo- ran arrived. Moreover, the GC’s conspicuous and unexplained failure to call Suarez greatly decreases Thames’ credibility.18 It is also implausible that, if Williams concocted Thames being asleep, he would have summoned Moran to witness a fictitious event. E. Dantzler’s Overtime Issues 1. GC’s position Dantzler, a hazardous waste handler, who services the coat- ing, mixing, solvent recovery, and latex departments, testified that he previously worked 3 to 4 hours of daily overtime. He noted that this overtime covered absences and workload in- creases. He said that, in January, he initiated the Union’s cam- paign; he reported that he collected 50 union authorization cards, leafleted, campaigned in the break area, and wore union insignia. Dantzler testified that, on February 17, he and Odell Harris, mixing department lead, discussed overtime. He related that Harris told him that Supervisor Cam Dornauer said that he was to be assigned “absolutely no overtime unless there were two men out.”19 (Tr. 59–60.) He stated that he promptly followed- up on this matter with Dornauer and recounted this exchange: I just asked him why I couldn’t get more overtime in the mix- ing department. And he said that two people had to be out in order for me to get overtime . . . . He responded that that was for nobody else, just for me. (Tr. 60.) He related that he was formerly offered overtime on a “man-for-man” basis, which meant that, if a single worker was absent, overtime was offered. He stated that he was, conse- quently, not assigned overtime until early September. He stated that, although he asked why he was being singled out, Dornauer refused to explain. Dantzler contended that he should have been assigned over- time on March 11 and 18, April 18 to 20, and May 12 and 20. He testified that two employees were absent on each of these dates, and identified several absent workers, whose absences were posted.20 (Tr. 74.) He conceded, on cross-examination, that, in September 2011, IPG went from 12-hour shifts to 8- hour shifts, which reduced overtime. (Tr. 98.) 2. IPG’s position Dornauer testified that he and Robinson supervised Dantzler. He noted that, in February, IPG sought to control overtime due to decreased business. See (R. Exhs. 18–19.) He stated that there is no policy, which bans overtime unless two employees 18 Suarez, a key witness, could have independently and persuasively confirmed Thames’ denial. 19 Harris was not alleged to be a supervisor; this testimony was, ac- cordingly, not received for its truth. 20 He stated that he created a list of the absent employees, which was never produced. (Tr. 78.) He inexplicably stated that he discarded this list, after committing it to memory. (Tr. 92, 107.) are absent, and denied announcing this rule to Dantzler. He explained that overtime is only a function of workload de- mands. Leon Robinson, a former supervisor in coating, latex, and mixing, testified that he supervised Dantzler until his April 29 retirement. He confirmed that, in early 2012, IPG prioritized controlling overtime costs, which decreased everyone’s over- time. He denied retaliating against Dantzler because of his union activities. Plexico,21 Dantzler’s second-level supervisor, testified that Dantzler historically worked overtime in coating and mixing. He stated that, in September 2011, business declined sharply and overtime was cut.22 See (R. Exh. 14.) On September 22, 2011, he, accordingly, sent this email to his first-level supervi- sors: Everyone is aware that we are working schedules of reduced hours in Saturation, Coating and Mixing . . . . I do not under- stand how we can have overtime when we are working four or five day work weeks. If we need overtime please let me know as timely as possible. . . . We have to get something ac- complished if I allow them to work when we do not have a schedule to make anything . . . . (R. Exh. 15.) He stated that Dantzler, who previously worked significant overtime, was greatly impacted by these changes. In February,23 he then sent out this ongoing overtime missive: We should only have scheduled OT. If we have a need for more than that, you (SUPERVISORS) need to be the one to solicit for it and I need to know about it. (R. Exh. 16.) Robert Powell, Master Scheduler, agreed that product de- mand sunk in February, and that he struggled to avoid having idle staff. He estimated that this dilemma began in December 2011. Harris, a lead, testified that, in early 2012, overtime shrunk. William Roach, a forklift driver, testified that he had typically worked overtime in mixing, before overtime ended in February. IPG’s records demonstrated that, between December 3 and 18, 2011, Dantzler worked 51.79 hours of overtime. (R. Exh. 21.) Between January 14 and February 12, he worked 56.11 hours of overtime. (Id.) No subsequent records of his overtime were submitted by IPG or the GC.24 3. Credibility resolutions As a threshold matter, it appears to be undisputed that: over- time opportunities decreased in late 2011; overtime continued to decrease into early 2012; and this decrease was prompted by 21 He oversees the mixing, latex, adhesive coating, and paper adhe- sive coating departments. 22 He stated that, at this time, production employees consequently went from a 7-day to a 5-day schedule. 23 He indicated that, at this time, he was unaware of any union activ- ity at the plant. 24 Cf. (R. Exh. 17) (showing that planned overtime was subsequent- ly offered in various departments, but, neglecting to identify the affect- ed employees). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 968 a drop in business. Several IPG witnesses provided unrebutted testimony about these matters, and IPG provided corroborative documentary evidence. I do not credit Dantzler’s testimony that he should have been assigned overtime on March 11 and 18, April 18 to 20, and May 12 and 20 due to absences. As noted, regarding demean- or, he was less than candid; it is also suspect that he destroyed the very same notes that would have corroborated this testimo- ny. It is noteworthy that the GC neglected to produce any per- sonnel records, which corroborated his claim that two employ- ees were absent on each of these dates.25 Finally, the GC failed to show that someone else actually worked overtime on these dates, or that they were inappropriately assigned overtime over Dantzler (i.e., it was not their turn).26 Lastly, I do not credit Dantzler’s claim that Dornauer told him that he was solely subject to a specialized overtime rule requiring two employees to be absent in order for him to get overtime. I credit Dornauer’s denial; he was a straightforward, consistent and possessed a solid recall. III. ANALYSIS A. Section 8(a)(1) 1. Interrogation27 IPG, by Williams, unlawfully interrogated Thames about his Union activities. In Westwood Healthcare Center, 330 NLRB 935 (2000), the Board held that these factors determine whether an interrogation is unlawful: (1) The background, i.e. is there a history of employer hos- tility and discrimination? (2) The nature of the information sought, e.g., did the inter- rogator appear to be seeking information on which to base taking action against individual employees? (3) The identity of the questioner, i.e., how high was he in the company hierarchy? (4) Place and method of interrogation, e.g. was employee called from work to the boss’s office? Was there an atmos- phere of unnatural formality? (5) Truthfulness of the reply. Id. at 939. In applying these factors, however, the Board con- cluded that: In the final analysis, our task is to determine whether under all the circumstances the questioning at issue would reasonably tend to coerce the employee at whom it is directed so that he 25 The GC’s unexplained failure to produce these records suggests that the records would not have been supportive. 26 The GC similarly neglected to produce pay records (i.e. Dantz- ler’s pay checks), which would have corroborated that his claim that he received no overtime through September. The GC also failed to pro- duce records showing that his coworkers worked greater overtime, or did so when it was not their fair turn. Dantzler’s overtime allegations, as a result, rested almost entirely upon his uncorroborated statements, which should have been supplemented by documentary evidence. These conspicuous omissions undercut his testimony about these is- sues. 27 These allegations are listed under pars. 7 and 16 of the complaint. or she would feel restrained from exercising rights protected by Section 7 of the Act. Id. at 940. In February, Williams approached Thames, his direct subor- dinate, in the plant; he asked him what he thought about the Union and told him that it could hurt him. This query was un- lawful; it was coercive, and reasonably designed to restrain Section 7 activity. 2. Captive audience meeting threats28 a. Strike-related comments IPG’s strike-related comments were lawful. The GC assert- ed that IPG unlawfully threatened employees with replacement during a strike, if they unionized. The contested comments were made by Hoffman and Hildreth at captive audience meet- ings. An employer can lawfully inform employees that they are subject to permanent replacement, in the event of a strike. Ea- gle Comtronics, 263 NLRB 515, 516 (1982). It need not fully explain the Act's protections for replaced strikers. Superior Emerald Park Landfill, LLC, 340 NLRB 449, 462 (2003). Where its statements about permanent replacements, however, make specific references to job loss, such statements are gener- ally unlawful since they convey that employees will be termi- nated.29 Wild Oats Market, 344 NLRB 717, 740 (2005). In the instant case, IPG lawfully told employees about: strikes being a part of collective-bargaining; the Union’s strike record and strike fund procedures; and a recent strike involving IPG and the Union. See Novi American, Inc., 309 NLRB 544 (1992) (finding statement about possible strike lawful). Simi- larly, IPG lawfully told employees that they were subject to permanent replacement, if they struck, and did not suggest that their Laidlaw rights would terminate. See Eagle Comtronics, Inc., 263 NLRB 515, 516 (1981). b. Lockouts and futility of bargaining IPG unlawfully told employees that unionizing was futile and would trigger a lockout. The Board has held that, barring outright threats to refuse to bargain in good faith with a union, the legality of any particular statement depends upon its con- text. Somerset Welding & Steel, Inc., 314 NLRB 829, 832 (1994). Statements made in a coercive context are unlawful because they, "leave employees with the impression that what they may ultimately receive depends upon what the union can induce the employer to restore." Earthgrains Co., 336 NLRB 1119, 1119–1120 (2001); see, e.g., Smithfield Foods, 347 NLRB 1225, 1230 (2006) (statement from highest official that company was in complete control of future negotiations was unlawful); Aqua Cool, 332 NLRB 95, 95 (2000) (statement that employees were unlikely to win anything more at the bar- gaining table than other employees unlawfully implied that unionizing would be futile). 28 These allegations are listed under pars. 8 and 16 of the complaint. 29 Such comments contradict employees’ Laidlaw rights. Laidlaw, 171 NLRB 1366 (1968) (permanently replaced strikers, who have made unconditional return to work offers, receive full reinstatement once replacements depart). INTERTAPE POLYMER CORP. 969 Hildreth commented that unionizing and collective bargain- ing would be futile. He added that he did not have to negotiate with the Union and would prompt a lockout. He announced that, if employees wanted a raise that IPG unilaterally deemed to exceed local labor market conditions, they should move to California and seek it there. These statements, in totality, con- veyed that Hildreth, who identified himself as a key player at the bargaining table, would irrespective of the Union’s pro- posals and contrary positions: not bargain over wages that he independently deemed unreasonable; force the Union’s hand via a lockout; and unilaterally set wages in accordance with IPG’s assessment of the local labor market. He drove this point home by drawing an analogy to California, and effectively said, if you don’t like it, board a Greyhound to California. These statements, when taken as a whole, conveyed that unionizing would be futile. 3. Threats to reduce overtime30 IPG, by Robinson, did not threaten employees with lost over- time. I did not credit Dantzler’s testimony that Robinson threatened to cut his overtime because of his Union activities. 4. Unspecified reprisals31 IPG, by Plexico, did not threaten employees with unspecified reprisals. I did not credit Dantzler’s testimony that Plexico told him that “this Union activity is going to get you all in trouble.” Plexico solely told him to cease soliciting in departments out- side of the scope of his assignment during working hours. 5. Confiscation of union materials32 IPG unlawfully confiscated Union literature from the break areas. Employees generally have the right to possess union materials at work, absent evidence that their employer restricts possession of other personal items, or that possession of union materials interferes with production or discipline. Brooklyn Hospital-Caledonian Hospital, 302 NLRB 785, 785 fn. 3 (1991). An employer, accordingly, violates the Act by confis- cating union materials from its employees. Ozburn-Hessey Logistics, LLC, 357 NLRB 1632 (2011). Given that IPG’s rules expressly permit solicitation and distribution during “breaks, before the shift starts, and after the shift ends,” Wil- liams’ repeated confiscation of Epps’ union materials from the break area was unlawful.33 6. Surveillance34 IPG engaged in unlawful surveillance. An employer unlaw- fully “surveils employees engaged in Section 7 activity by ob- serving them in a way that is ‘out of the ordinary’ and thereby coercive.” Aladdin Gaming LLC, 345 NLRB 585, 586 (2005). Indicia of coerciveness, include the “duration of the observa- 30 These allegations are listed under pars. 9 and 16 of the complaint. 31 These allegations are listed under pars. 10 and 16 of the com- plaint. 32 These allegations are listed under pars. 12 and 16 of the com- plaint. 33 See Seton Co., 332 NLRB 979, 992 (2000) (an employer who disparately enforces or applies rules against employees based on the employees' support or opposition towards a union violates the Act). 34 These allegations are listed under pars. 13 and 16 of the com- plaint. tion, the employer’s distance from employees while observing them, and whether the employer engaged in other coercive behavior during its observation.” Id. On April 24 and 25, management simultaneously leafleted at the plant gate in close proximity to the Union’s supporters, only days before the elec- tion. From its post, management was free to observe who ac- cepted a union leaflet or interacted with its supporters. This scenario was unusual, inasmuch as management typically communicated in meetings and there was no evidence of any pre-campaign leafleting. This arrangement, as a result, consti- tuted unlawful surveillance. B. Section 8(a)(3)35 IPG did not violate Section 8(a)(3). The GC alleged that IPG violated Section 8(a)(3) by terminating Thames and reduc- ing Dantzler’s overtime opportunities. 1. Legal framework The framework described in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), sets forth the appropriate standard: Under that test, the General Counsel must prove by a prepon- derance of the evidence that union animus was a substantial or motivating factor in the adverse employment action. The el- ements commonly required to support such a showing are un- ion or protected concerted activity by the employee, employer knowledge of that activity, and union animus on the part of the employer. If the General Counsel makes the required initial showing, the burden then shifts to the employer to prove, as an affirmative defense, that it would have taken the same action even in the absence of the employee's union activity. To establish this af- firmative defense, “[a]n employer cannot simply present a le- gitimate reason for its action but must persuade by a prepon- derance of the evidence that the same action would have taken place even in the absence of the protected activity.” Consolidated Bus Transit, 350 NLRB 1064, 1065–1066 (2007) (citations omitted). If the employer’s proffered defenses are found to be a pre- textual (i.e., the reasons given for its actions are either false or not relied upon), it fails by definition to show that it would have taken the same action for those reasons, and there is no need to perform the second part of the Wright Line analysis. Further analysis, however, is required if the defense is one of “dual motivation,” that is, the employer defends that, even if an inva- lid reason might have played some part in its motivation, it would have taken the same action against the employee for permissible reasons. Palace Sports & Entertainment, Inc. v. NLRB, 411 F.3d 212, 223 (D.C. Cir. 2005). 2. Thames’ discharge a. Prima facie case The GC made a prima facie Wright Line showing that Thames’ discharge violated Section 8(a)(3). He had limited 35 These allegations are listed under pars. 14, 15, and 17 of the com- plaint. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 970 Union activity; he signed a card and associated with Epps, a Union adherent. Concerning knowledge, Williams observed and commented upon his relationship with Epps.36 Lastly, there is evidence of Union animus, which can be gleaned from the unlawful threats, surveillance, and interrogation violations found herein. b. Affirmative defense IPG demonstrated that it would have taken the same action against Thames for permissible reasons. First, he was guilty of the underlying offense. He was caught sleeping on the job, a LEVEL II offense. Second, IPG’s rules expressly provided for his discharge; his LEVEL II offense moved him 2 steps up the disciplinary ladder and placed him at the termination level. Third, other employees, who were caught sleeping, were con- sistently issued LEVEL II offenses, and comparably moved 2 steps up the disciplinary ladder. Fourth, the GC’s attempt to link Thames’ discharge to his relationship with Epps is tenuous, at best, inasmuch as it is undisputed that: Epps is a popular worker, who is visited by many others throughout the workday; none of her other visitors were disciplined; Thames visited Epps in a consistent manner before, and during, the campaign; and Epps, who only obtained seven union authorization cards in a 250-person unit, was admittedly a lesser player in the Union’s organizing drive than many others.37 Under these circumstanc- es, IPG demonstrated that it consistently disciplined an em- ployee, who violated its rules, irrespective of his limited union activities and tenuous connection to a union adherent. 3. Dantzler’s overtime a. Prima facie case The GC made a prima facie Wright Line showing that Dantz- ler’s discharge violated Section 8(a)(3). Dantzler had substan- tial union activity; he initiated the campaign; collected 50 Un- ion authorization cards; leafleted; and wore union insignia. Concerning knowledge, IPG minimally observed him leafleting at the plant gate. Finally, as noted, there is evidence of union animus, which can be gleaned from the 8(a)(1) violations found herein. b. Affirmative defense IPG demonstrated that Dantzler’s overtime would have been reduced, irrespective of his union activity. First, in early 2012, business demand dropped, which decreased everyone’s over- time. Second, the GC conspicuously failed to produce docu- mentary evidence, which demonstrated that Dantzler received a less than proportional share of existing overtime opportuni- ties.38 The GC, instead, solely relied upon Dantzler’s uncor- 36 Knowledge is based upon the assumption that Williams knew about Epps’ union activities, which, at the time of Thames’ discharge, was debatable. I will, however, give the GC the benefit of the doubt on this issue, and move forward with the Wright Line analysis. 37 The GC’s discharge theory would have been more persuasive, if centered upon someone with substantially more union activity than Epps, who held a more exceptional relationship with Thames. 38 Specifically, the GC failed to explain why these overtime records, which IPG clearly maintained in the normal course of its business, were never presented. These records would have been the best evidence of roborated and self-serving testimony that he lost overtime on certain dates,39 and was subject to a more rigorous overtime rules than his coworkers.40 This unsupported testimony, as discussed, was simply not credible. IV. REPRESENTATION CASE The Union filed 17 objections41 to IPG’s conduct during the critical period preceding the election (i.e., March 16 to April 27).42 (GC Exh. 4.) Some objections mirrored the complaint’s allegations. IPG presented argument concerning these objec- tions in its posthearing brief. A. Objections 1. Objections 1 and 4 Objections 1 and 4 alleged that, during the critical period, IPG engaged in surveillance. Given that I have found that IPG engaged in unlawful surveillance on April 24 and 25, these objections are valid. 2. Objection 2 Objection 2 alleged that, during the critical period, IPG un- lawfully interrogated employees. Although I found that Wil- liams unlawfully interrogated Thames in February, this activity preceded the critical period that began on March 16. Given that the Union adduced no evidence of interrogations occurring during the critical period, this objection is invalid. 3. Objection 3 Objection 3 alleged that, during the critical period, IPG un- lawfully issued warnings to employees due to their union ac- tivities. This objection focused on Thames’ discharge. It is, thus, invalid for two reasons: his discharge was lawful; and his firing occurred before the critical period. 4. Objection 6 Objection 6 alleged that, during the critical period, IPG con- fiscated union literature from plant break areas. Given that I have found this conduct to be unlawful, this objection is valid. Dantzler’s overtime losses and alleged discrimination, and might have conclusively shown that his colleagues, who were not union activists, were receiving a disproportionately greater share of overtime opportu- nities. Ironically, the only overtime records that were produced for Dantzler covered December 2011 through February 13 (see (R. Exhs. 21–22)), which preceded the February 17 onset date of his alleged overtime discrimination. In sum, the failure to produce this critical documentary evidence deeply undercut this allegation. 39 Although Dantzler identified specific dates that he lost overtime, the GC neglected to produce any records regarding these dates, which would have corroborated his testimony on this point (i.e., records demonstrating that overtime was offered to someone else, or that two employees, as Dantzler suggested, were absent on these dates). 40 The GC similarly neglected to produce records, which supported Dantzler’s contention that his coworkers were granted overtime, when only one person was absent. 41 At the hearing, it withdrew Objections 5, 7, 11, 15, and 17. See (Tr. 322, 592, 772). 42 Ideal Electric Mfg. Co., 134 NLRB 1275 (1961) (critical period is span between petition and election dates). INTERTAPE POLYMER CORP. 971 5. Objections 8–10, and 12–1443 Objections 8–10 and 12–14 alleged that, during the critical period, IPG, inter alia, threatened “dire consequences,” and “created the impression of futility,” if employees unionized. These objections focused on the captive audience meetings, which have already been considered. Given that I that found Hildreth’s comments to be unlawful, these objections are sus- tained. 6. Objection 16 Objection 16 alleged that, during the critical period, IPG “engaged in isolation of the employees.” This objection fo- cused on Plexico’s mid-March comment to Dantzler about performing union activities outside of his assigned area, when he was supposed to be working. Given that Plexico’s statement was lawful, this objection is denied. B. Conclusion I find that Objections 1, 4, 6, 8–10, and 12–14 are valid, and that the conduct underlying these objections, which also violat- ed Section 8(a)(1), prevented employees from exercising free choice during the election. I recommend, accordingly, that the election be invalidated, and that employees be permitted to vote in a second untainted election. See General Shoe Corp., 77 NLRB 124 (1948); IRIS U.S.A., Inc., 336 NLRB 1013 (2001); Diamond Walnut Growers, Inc., 326 NLRB 28 (1988). CONCLUSIONS OF LAW 1. IPG is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. IPG violated Section 8(a)(1) of the Act by: a. Interrogating employees about their Union or other pro- tected concerted activities. b. Threatening employees that, if they selected the Union as 43 At the hearing the Union amended Objection 13 to allege that, “[IPG] [a]dvised employees that they would be permanently and forev- er replaced.” (Tr. 322.) their collective-bargaining representative, it would not negoti- ate, cause a lockout, and bargaining would be futile. c. Confiscating union materials and related documents from break areas. d. Engaging in surveillance of employees’ union or other protected concerted activities. 4. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. IPG has not otherwise violated the Act. 6. By the conduct cited by the Union in Objections 1, 4, 6, 8–10, and 12–14, IPG has prevented the holding of a fair elec- tion, and such conduct warrants setting aside the election held in Case 11–RC–076776. REMEDY Having found that IPG committed unfair labor practices, it is ordered to cease and desist and to take certain affirmative ac- tion designed to effectuate the policies of the Act. IPG must have a responsible official read the Notice to Em- ployees to the unit during working hours at a meeting or meet- ings, in the presence of a Board agent. A notice reading will likely counteract the coercive impact of the instant unfair labor practices, which were, in the case of Hildreth’s unlawful com- mentary, committed by a high-ranking official. See Consec Security, 325 NLRB 453, 454–455 (1998), enfd. 185 F.3d 862 (3d Cir. 1999) (participation of high-ranking management in ULPs magnifies the coercive effect); Mcallister Towing & Transportation Co., 341 NLRB 394, 400 (2004) (“[T]he public reading of the notice is an ‘effective but moderate way to let in a warming wind of information and . . . reassurance. [citations omitted].”’). A notice reading will also foster the environment required for a final election result. IPG will distribute remedial notices electronically via email, intranet, internet, or other appropriate electronic means to its employees, in addition to the traditional physical posting of paper notices, if it customarily communicates with workers in this manner. See J Picini Flooring, 356 NLRB 11 (2010). [Recommended Order omitted from publication.]