This decision by Administrative Law Judge Andrew S. Gollin concerns alleged unfair labor practices by Orchids Paper Products Company (Respondent) against the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO (Union). The allegations span multiple violations of Sections 8(a)(1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act (NLRA), alongside Section 8(d) concerning the duty to bargain.

The ALJ found Respondent violated the Act in several key areas. First, Respondent was found to be a joint employer with People Source Staffing Professionals, LLC, regarding temporary employees. This determination was based on Respondent's significant control over essential terms and conditions of employment, including directing work assignments, terminating assignments, converting temporary employees to "permanent temps" with indefinite assignments, and influencing the source and duration of temporary labor.

Consequently, Respondent violated Section 8(a)(5) and (1) by failing to apply the collective-bargaining agreement (CBA) to temporary employees who had worked for more than 60 days, thereby denying them continuous service credit, wages, and benefits. The ALJ found no contractual basis or valid interpretation to exclude these employees from CBA coverage after their probationary period. Furthermore, Respondent unlawfully discharged five named temporary employees (Carrie Bunnell, Rebecca Scott, John Aguilar, Brandon Glory, and Jennifer Whisenhunt) in retaliation for the Union's assertion that they were unit employees covered by the CBA. This conduct also violated Section 8(a)(3) and (1) by discriminating against employees for engaging in protected union activities.

The ALJ also found Respondent violated Section 8(a)(5) and (1) by unilaterally converting production lines 6 and 7 to "Op-Tech" lines without the Union's consent, despite an unambiguous contractual provision requiring mutual agreement for such conversions.

Additionally, Respondent unilaterally changed health insurance carriers without providing the Union timely notice and an opportunity to bargain over the decision or its effects, violating Section 8(a)(5) and (1). Similarly, Respondent unilaterally implemented a broader flame-resistant clothing (FRC) policy, requiring maintenance employees to wear FRC at all times while on duty, without bargaining, violating Section 8(a)(5) and (1). The subsequent suspension and discipline of Michael Besley for violating this unilaterally implemented policy also violated Section 8(a)(5) and (1). The ALJ also found that a portion of the written warning issued to Besley for failing to properly use the CMMS system and follow escalation procedures was discriminatorily motivated by his protected union activities, violating Section 8(a)(3) and (1).

The ALJ also addressed several Section 8(a)(1) violations. These included: making statements blaming the Union for the termination of temporary employees; prohibiting employees from discussing union business on the work floor or during working time while allowing other non-work-related discussions, which violated both Section 8(a)(1) and Section 8(a)(5)/8(d) by modifying the CBA's past practice; vaguely accusing union officers of harassment; making statements to union officers that their union activities were disrespectful to management; creating an impression of surveillance regarding union activities; prohibiting employees from conducting union business on the production floor in contravention of the CBA; prohibiting union officers from speaking during employee meetings; threatening employees with suspension for union activities; threatening unspecified reprisals for questioning the FRC policy; and instructing employees not to report Respondent to OSHA. The ALJ dismissed allegations regarding a verbal agreement on overtime work, certain initial clothing/shoe policies, and a question about union membership asked of a non-union employee by a supervisor as not violating the Act.

Significant Cases Cited

• BFI Newby Island Recyclery (Browning-Ferris Industries of California), 362 NLRB No. 186 (2015): This decision revised the Board's standard for determining joint employer status, focusing on whether the employer has common-law employment relationship with the employees and possesses sufficient control over their essential terms and conditions of employment to permit meaningful collective bargaining, including indirect or reserved control.
• NLRB v. Katz, 369 U.S. 736 (1962): This Supreme Court case established that unilateral changes to mandatory subjects of bargaining during the term of a collective-bargaining agreement constitute an unlawful refusal to bargain under Section 8(a)(5).
• Wright Line, 251 NLRB 1083 (1980): This case established the framework for analyzing employer conduct that may be motivated by both legitimate business reasons and union animus, requiring the General Counsel to show protected activity was a motivating factor and the employer to demonstrate it would have taken the same action absent the protected activity.
• Scripps Memorial Hospital Encinitas, 347 NLRB 52 (2006): This case clarified that an employer may prohibit union discussions during working time only if it also prohibits discussions of other non-work-related topics during that same time; otherwise, such a prohibition constitutes discriminatory treatment of union activity.
• Rossmore House, 269 NLRB 1176 (1984): This case set forth the factors the Board considers when determining whether an employer's questions to employees about union activities constitute unlawful interrogation, focusing on the background, nature of information sought, identity of the questioner, place and method of interrogation, and truthfulness of the reply, all within the objective standard of whether the questioning tends to coerce or restrain employees.

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