Werthan Packaging, Inc.

National Labor Relations Board - Board Decisions

Aug 26, 2005

345 N.L.R.B. 343 (N.L.R.B. 2005)

WERTHAN PACKAGING, INC.
345 NLRB NO. 30
343
Werthan Packaging, Inc. and Rick Holt, Petitioner
and Paper, Allied-Industrial, Chemical and En-
ergy Workers International Union, (PACE),
AFL–CIO. Case 26–RD–1104
August 26, 2005
DECISION AND CERTIFICATION OF
RESULTS OF ELECTION
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The National Labor Relations Board has considered
objections to an election held on November 17 and 18,
2004, and the hearing officer’s report recommending
disposition of them. The election was conducted pursu-
ant to a Stipulated Election Agreement. The tally of bal-
lots shows 92 for and 113 against the Union, with 3 chal-
lenged ballots, an insufficient number to affect the re-
sults.
The Board has reviewed the record in light of the ex-
ceptions and briefs, and, contrary to the hearing officer’s
recommendation, has decided to overrule the Union’s
Objections 1, 2, and 14, and to certify the results of the
election.1
Background Facts
The Employer operates a facility in Nashville, Tennes-
see, where it manufactures and prints various sizes of
paper and plastic bags for pet food. The Union won an
election conducted in April 2000, and was certified as the
bargaining representative of the Employer’s production
and maintenance employees.
On June 22, 2004,2 a decertification petition was filed.
The election was scheduled for November 17 and 18 in
the following unit:
Included: All production and maintenance em-
ployees including group leaders, lead persons, truck
drivers and plant clerical employees employed by
the Employer at its Nashville, Tennessee, facility.

1 The Employer has excepted to some of the hearing officer’s credi-
bility findings. The Board’s established policy is not to overrule a
hearing officer’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect.
Stretch-Tex Co., 118 NLRB 1359, 1361 (1957). We find no basis for
reversing the findings.
In the absence of exceptions, we adopt pro forma the hearing offi-
cer’s recommendation to overrule the Union’s Objections 4, 5, 6, 9, 11,
and 12, and parts of Objections 1 and 14.
The Union’s Objection 1 alleged that the Employer threatened job
loss if the Union won the election. Objection 2 alleged that the Em-
ployer interrogated employees concerning their membership and activi-
ties on behalf of the Union, and Objection 14 alleged that the Employer
threatened and coerced employees because of Union activities and
threatened dire consequences if the employees selected the Union.
2 All dates hereafter refer to 2004.
Excluded: All office clerical employees, confi-
dential employees, professional employees, human
resource assistants, sales representatives, customer
service representatives, graphics coordinator, mar-
keting manager, process planner, guards, and super-
visors as defined in the Act.
On October 24, 2004, almost a month before the elec-
tion, Night Shift Supervisor Jethro Martin approached
employee Geraldine Graham while she was in the large
bags area making boxes. Graham was wearing a proun-
ion button. Martin asked her if she wanted one of the
“vote no” buttons that he held in his hand. Graham re-
plied that she did not want one because she was for the
Union. Martin told Graham that if she did not vote no
she would lose her job. Employee Collins observed Mar-
tin offering the “vote no” button but did not hear any of
the conversation.
About November 16, the day before the election, Mar-
tin approached employees Marcus Bostick, Ricky
Golden, and Gene Newby while they worked at their
machine. Martin asked them how they were going to
vote. The three employees had not previously indicated
how they intended to vote, and did not answer his ques-
tion.
Also, the day before the election, Converting Manager
Carlos Adkisson approached employee Felisa Stokes
while Stokes was sorting through bags in the large bag
area. Stokes had worked for the Employer for 8 months
and was wearing a union button for the first time. Adkis-
son asked Stokes if she had filled out a union card. She
replied, “yes.” Adkisson informed Stokes that it was in
her best interest and in her family’s best interest that the
Employer wanted her to vote “no.” Adkisson then wrote
something on her clipboard. Stokes then observed Ad-
kisson walk up to another employee and appear to talk to
her and write something down on the clipboard. Stokes
saw Adkisson repeat this process with about 25 employ-
ees.
Hearing Officer’s Findings
The hearing officer found that the Employer engaged
in objectionable conduct that could affect the outcome of
the election. First, he found that Martin engaged in ob-
jectionable conduct by interrogating Graham and by
threatening her with job loss if the Union won the elec-
tion, and by interrogating employees Golden, Bostick,
and Newby about their union sympathies.
Further, the hearing officer found that Adkisson’s re-
mark (that it was in Stokes’ and her family’s best interest
to vote “no”) was threatening and coercive. In this con-
text, he found that Adkisson’s questioning open union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD344
supporter Stokes as to whether she had filled out a union
card was also objectionable.
Finally, the hearing officer found that although Stokes
admitted she could not hear the conversations that Adkis-
son had with about 25 employees after leaving Stokes, it
was logical and reasonable to believe that Adkisson was
inquiring about the voting intent of the other eligible
voters because that was, in essence, her inquiry of
Stokes. Therefore, the hearing officer found that Adkis-
son’s conversations with them were objectionable.
Noting that the difference of 11 votes would have
changed the election outcome, the hearing officer found
that the combination of a threat of job loss, a threat of
unspecified reprisal, and interrogations of 30 employees,
including the 25 employees that Stokes observed Adkis-
son talking to, interfered with the employees’ free choice
in the election. The hearing officer further found that,
even if the alleged interrogations of the 25 employees
were not considered, the election should be set aside. He
found that Martin’s threat to Graham of job loss alone
was sufficient to set aside the election. Additionally,
given Adkisson’s threat to Stokes and the interrogations
of five employees, the hearing officer concluded that the
case was even stronger for setting aside the election.
Analysis
We agree with the hearing officer that Martin engaged
in misconduct by interrogating Graham and threatening
her with job loss, and by interrogating employees
Golden, Bostick, and Newby concerning their union sen-
timents.3 However, as explained below, we find, con-
trary to the hearing officer, that Adkisson did not
threaten Stokes, and that the evidence failed to establish
that Adkisson interrogated 25 other employees about the
Union. We further conclude, contrary to the hearing
officer, that considering the Employer’s conduct as a
whole, a new election is not warranted.
Adkisson’s Conduct
Contrary to the hearing officer, we cannot conclude
that Adkisson’s statement to Stokes that it was in Stokes’
and her family’s best interest that the Employer wanted
her to vote “no” constituted an impermissible threat. An
employer’s telling an employee that it would be in that
person’s or family’s “best interest” to vote against the
union, unaccompanied by threats, is too vague to warrant
a finding that the employer was threatening the em-
ployee.4 At most, Adkisson was expressing her opinion

3 In agreeing with the hearing officer that Martin engaged in mis-
conduct, we note that the Employer filed exceptions only to the credi-
bility findings with respect to Martin’s conduct.
4 See Goldtex, Inc., 309 NLRB 158, 163 (1991) (supervisor’s state-
ment to employee “that it would be in his best interest to vote no, that
that Stokes and Stokes’ family did not need the Union.
Adkisson was free to express the view that unionization
would not be in the best interests of the employees and
their families. There is nothing to suggest that this
would be because of reprisals visited on the employees
because of unionization. Accordingly, we find that Ad-
kisson’s statement to Stokes was not objectionable.
As stated above, the hearing officer found that Adkis-
son’s questioning of Stokes was objectionable. We need
not pass on this finding because, even assuming the con-
duct was objectionable, it was limited to Stokes and, as
more fully explained below, would not warrant a new
election, considered either by itself or in conjunction
with other objectionable incidents.5 We reject the hear-
ing officer’s finding that Adkisson improperly interro-
gated 25 other employees about their union sympathies.
“[T]he burden of proof on parties seeking to have a
Board-supervised election set aside is a heavy one. . . .
An objecting party must show by specific evidence not
only that the improper conduct occurred, but also that it
interfered with the employees’ exercise of free choice
. . . .” Sonoma Health Care Center, 342 NLRB 933
(2004). That burden has not been met. As the hearing
officer found, there is no evidence concerning the content
of the conversations Adkisson had with the 25 employees
she talked with after speaking to Stokes. All Stokes wit-
nessed was Adkisson approaching employees, and then
writing something down on a clipboard. None of the 25
employees testified. Contrary to the hearing officer, we
are unwilling to infer from this paucity of evidence that
Adkisson must have interrogated the 25 employees about
their union sentiments. To do so would be mere specula-
tion, which we find insufficient to satisfy the Union’s
burden of establishing objectionable conduct.
Contrary to our dissenting colleague, Harborside
Healthcare, Inc., 343 NLRB 906 (2004), does not com-
pel a different result. In Harborside, the Board con-
cluded that, based on the record evidence, it was reason-
able to infer that a supervisor who had threatened certain
identified employees with job loss if the union lost the

the Union could not do anything but charge dues,” not coercive), enfd.
mem. 16 F.3d 409 (4th Cir. 1994); Thomas Industries, 255 NLRB 646
(1981) (captive-audience speech in which employer indicated it did not
want the union, and that “it would be in [the employees’] best interest if
there is no union here” not coercive absent other promise or threats),
enf. denied on other grounds 687 F.2d 863 (6th Cir. 1982); Liberty
Mutual Insurance Co., 194 NLRB 1043, 1044–1046 (1972) (memo to
employees stating that selecting a union “would not be to your best
interest and, in fact, could deter and hamper your personal relation with
your Company” is at most an argument containing no threat or warn-
ing).
5 Even assuming that Adkisson impermissibly interrogated Stokes, it
would not render objectionable her statements to Stokes discussed
above.
WERTHAN PACKAGING, INC. 345
election did not limit her discussions with other employ-
ees to permissible opinions regarding unionization. In
Harborside, the evidence established that this supervisor
spoke to many employees on numerous occasions about
the union. In her discussions, she repeatedly threatened
several employees that they could lose their jobs if the
union lost the election. Further, the Board noted that one
of the threatened employees testified that the supervisor
repeated to other employees the remarks that the supervi-
sor had made to her.6
In addition to making these direct threats of job loss,
the supervisor also spoke to another employee and “nu-
merous” other, unidentified employees about the union.
These conversations took place on the job, in the smok-
ing area and in the parking lot, and included the supervi-
sor’s numerous references to “job security” and her need
to be able to “count on” these employees to vote for the
union. Given this context—the outspoken and aggres-
sive nature of the supervisor’s discussions with named
employees and others—the Board concluded that it was
not unreasonable to infer that the supervisor threatened
other employees.
The facts here are markedly different from those in
Harborside. Thus, the only record evidence of Adkis-
son’s conduct is that she told one employee that the em-
ployee and her family would be better off without the
Union—a clear reference to a supervisor’s lawful opinion
that the Union would not bring any economic gain for the
employee—and asked the employee, who was wearing a
union button, whether she had filled out a union card.
Although Adkisson allegedly then talked to 25 additional
employees, as noted above, not one of those employees
was called as a witness to recount what Adkisson may
have said to him or her. This lack of evidence stands in
stark contrast to Harborside. There, the pervasive super-
visory misconduct, coupled with the fact that the em-
ployee who was threatened testified that the remarks the
supervisor made to her were repeated by that supervisor
to other employees, warranted an inference that the su-
pervisor threatened the other employees. By contrast,
there is clearly no evidence that Adkisson’s question was
repeated. And, under Harborside, there is not even evi-
dence here that Adkisson talked to others about the Un-
ion. Under the circumstances here, the Union has not
borne its burden of establishing objectionable conduct.7
A new election is not warranted.
As discussed, Martin interrogated Graham and threat-
ened her with job loss, and he interrogated Golden, Bos-

6 Id., slip op. at 6 fn. 14.
7 Thus, contrary to the dissent’s assertion, we are not applying a
“double standard” in evaluating prounion or antiunion supervisory
conduct.
tick, and Newby. And we assume arguendo that Adkis-
son interrogated Stokes. However, this conduct does not
require that a new election be held.
In determining whether misconduct could have af-
fected the results of the election, the Board has consid-
ered the number of objectionable incidents, their sever-
ity, the extent of dissemination, and the size of the unit.8
The Board has also found that isolated instances of inter-
rogations or threats, which were not disseminated to the
other unit employees, could not reasonably affect the
results of the election.9
Here, as discussed above, the Employer’s objection-
able conduct consisted of a single threat and at most five
interrogations. A total of five employees, including
Stokes, were directly affected by the Employer’s im-
proper actions. There were approximately 200 unit em-
ployees. There is no evidence that the employees who
were interrogated or the one who was threatened dis-
seminated those acts to other unit employees.10 Further,
the Union lost the election by 21 votes. Thus, the record
does not establish that the Employer’s conduct affected a
determinative number of employees, or that it was oth-
erwise so pervasive as to warrant a new election. Ac-
cordingly, we overrule the Union’s Objections 1, 2, and
14 and shall certify the results of the election.
CERTIFICATION OF RESULTS OF ELECTION
IT IS CERTIFIED that a majority of the valid ballots have
not been cast for Paper, Allied-Industrial, Chemical and
Energy Workers International Union, (PACE), AFL–CIO
and that it is not the exclusive representative of these
bargaining unit employees.

8 See Super Thrift Markets, 233 NLRB 409 (1977); Caron Interna-
tional, Inc., 246 NLRB 1120 (1979).
9 Bon Appetit Management Co., 334 NLRB 1042, 1044 (2001) (em-
ployer’s asking employee how she would vote and stating that if em-
ployee voted for the union her pay would be cut was unlawful and
objectionable interrogation and threat; however, because the conduct
was isolated given large size of unit, lack of evidence of dissemination,
and lopsided vote, Board concluded that it could not have affected the
results of the election); Caron International, supra (threat of discharge
to a single employee in a unit of 850 employees in over five locations
too minimal to warrant invalidating the election, where no showing that
the threat was disseminated). Further, Community Action Commission
of Fayette County, 338 NLRB 664 (2002), relied upon by the hearing
officer to find that a threat of job loss alone constituted objectionable
conduct warranting setting aside an election, is distinguishable because
in that case a single vote was determinative and the threat was dissemi-
nated to other unit employees.
10 One employee, Valorie Collins, as noted above, saw Martin offer
Graham a “vote no” button but could not hear the conversation. Al-
though Collins testified that five or six employees were in plain view,
there is no evidence that those employees saw or heard the incident.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD346
MEMBER LIEBMAN, dissenting in part.
The majority’s failure to set aside the election here,
based on the conduct of supervisor Carlos Adkisson,
raises questions about whether the Board now applies a
double standard: one for prounion supervisory conduct
and one for antiunion supervisory conduct. The majority
assumes, but does not find, that Adkisson impermissibly
interrogated employee Alisa Stokes about her support for
the Union. It finds, erroneously, that Adkisson did not
also threaten Stokes (choosing, curiously, to decide this
issue, while not deciding the interrogation issue). Fi-
nally, the majority refuses to infer that Adkisson interro-
gated 25 other employees, whom he approached immedi-
ately after interrogating Stokes, speaking to them and
writing something down on a clipboard—just as he had
with Stokes. The majority’s approach stands in sharp
contrast to the Board’s recent decision in Harborside
Healthcare, Inc., 343 NLRB 906 (2004). There, the ma-
jority inferred that a prounion supervisor threatened cer-
tain employees, based solely on the supervisor’s state-
ments to other employees. Id., slip op. at 6.
I.
The evidence shows that Adkisson, a high-level man-
ager,1 approached Stokes at her work station and asked
whether she had filled out a union card. Stokes was
wearing a union button. When Stokes answered affirma-
tively, Adkisson told her that it was not in her best inter-
est, or that of her family, to vote for the Union. Adkisson
then wrote something down on his clipboard. Next,
Stokes saw Adkisson approach another employee, talk to
her, and make a notation on his clipboard. According to
Stokes, Adkisson did the same thing with about 25 em-
ployees, although Stokes did not hear what he said. The
Employer offered no explanation for Adkisson’s actions.
II.
As did the hearing officer, I would find that Adkisson
unlawfully interrogated Stokes, threatened her, and then
went on to interrogate 25 other employees. Harborside,
it seems to me, compels this last inference.
A.
First, it is clear, despite the majority’s unwillingness to
say so, that Adkisson unlawfully interrogated Stokes.
Although Stokes was wearing a union button at the time,
there was no legitimate reason for Adkisson to inquire as
to whether she had signed a union card. See Mast Adver-
tising, 286 NLRB 955, 959 (1987). In these circum-
stances, I would find Adkisson’s questioning to be coer-

1 Adkisson is the Respondent's converting manager and is responsi-
ble for supervising about 140 employees.
cive under the standard set forth in Rossmore House, 269
NLRB 1176 (1984), enfd. 760 F.2d 1006 (9th Cir. 1985).
B.
Second, Adkisson’s comment to Stokes—that voting
for the union was not in the best interests of her or her
family—was also coercive, particularly when considered
in conjunction with the objectionable interrogation of
Stokes. Employer statements that might be permissible
considered in isolation can become improper if uttered in
the context of other unfair labor practices (or objection-
able conduct) that “impart a coercive overtone” to the
statements. Reno Hilton, 319 NLRB 1154, 1155 (1995)
(citations omitted).2 Here, Adkisson obviously was seek-
ing to sway Stokes from her just-reaffirmed support of
the Union, which was elicited impermissibly. He made
no attempt to persuade her by reasoned argument. In-
stead he made a bare, blunt reference not only to her best
interest, but to the best interest of her family. Referring
to Stokes’ family clearly implied that her support for the
Union could have personal economic consequences.
And given Adkisson’s status as high-level manager, he
was in a position to ensure such consequences. Under all
the circumstances, then, Adkisson’s statements would
reasonably be understood as a threat of unspecified repri-
sals.3
C.
Finally, based on Adkisson’s interrogation of Stokes, it
is reasonable to infer that he also interrogated the 25 em-
ployees whom he approached after his encounter with
Stokes. His actions—speaking to the employees and
then writing something down, as he did with Stokes—are
strongly suggestive of a systematic interrogation of em-
ployees. It would be odd, indeed, if Adkisson had inter-

2 See SKD Jonesville Division L.P., 340 NLRB 101, 101 (2003)
(finding unlawful supervisor’s statement that getting involved with
union was not in employee’s “best interests,” in light of supervisor’s
reference to desirability of discharging other workers who had exer-
cised legal right to seek worker’s compensation). See also Daniel
Construction Co., 264 NLRB 569, 601 (1982) (finding unlawful super-
visor’s statement that it would be “in . . . best interests” of employees to
retrieve signed union authorization cards), enfd. 731 F.2d 191 (4th Cir.
1984).
3 The cases cited by the majority in support of its position that Ad-
kisson’s comments were not objectionable are easily distinguishable on
their facts. None involved a bare statement about “best interests” made
in conjunction with the improper interrogation of an individual em-
ployee, coupled with a reference to the employee’s family. Two
cases—Thomas Industries, 255 NLRB 646 (1981), and Liberty Mutual
Insurance Co., 194 NLRB 1043 (1972)—involved statements made to
employees as a group (in a speech and a memorandum). In Goldtex,
Inc., 309 NLRB 158, 163 (1991), the supervisor offered an explanation
for his statement that it would be in the employee’s best interest to vote
no: “that the Union could not do anything but charge dues” (i.e., that
the Union would be ineffective in improving working conditions).
WERTHAN PACKAGING, INC. 347
rogated only Stokes, whose union button made her sup-
port for the union visible. Adkisson was clearly inter-
ested in what employees’ union sentiments were, and he
was prepared to find out improperly. Interrogating all
employees, and not abruptly stopping after interrogating
Stokes, was the logical way to pursue that goal. Notably,
Adkisson did not testify, and the Employer has offered
no alternative explanation for what he was doing.
Contrary to the majority’s claim, it is not “mere specu-
lation” to infer that Adkisson interrogated the 25 em-
ployees. Harborside is instructive on this point. There,
the majority found that statements made by a pro-union
supervisor to three employees were objectionable. It then
observed that it was “not unreasonable to infer that when
[the supervisor] . . . spoke to . . . other employees, she
did not limit her remarks to permissible expressions of
opinion about the Union.” 343 NLRB 906, 911 (fn.
omitted). On that basis, the majority set aside the elec-
tion.
Member Walsh and I dissented. We pointed out that
the conversations had occurred on separate occasions.
Id. at 16. And we said:
We doubt that the Board would make a comparable in-
ference about a supervisor’s conduct in the context of
an employer’s antiunion campaign. (If we are wrong,
of course, the Board will have to regularly set aside
elections where the record establishes that one or more
employees were threatened by the supervisor and that
the supervisor made undetermined campaign-related
statements to other employees.)
Id. This case suggests that Member Walsh and I were cor-
rect.
Even under the Harborside dissent’s view, however,
inferring that Adkisson interrogated the other employees
is reasonable. This is certainly a stronger case for mak-
ing that inference than Harborside. For here, unlike that
case, there is evidence of the circumstances of Adkis-
son’s conversations which suggest their impermissible
content. Adkisson went immediately from his conversa-
tion with Stokes to the next person, then to the next per-
son, and so on, seriatim in the work area, saying some-
thing to each employee and then making a notation on
his clipboard. This is sufficient evidence from which to
infer a pattern and that he made the same pitch as he
made to Stokes to each employee he spoke with in turn.
In contrast, the Harborside supervisor might well have
confined herself to lawful statements; there was no evi-
dence of circumstances that would support an inference
that her statements were other than lawful. Her conver-
sations were separate in time, and there was no evidence
that she was speaking from a script, for example. Find-
ing her statements objectionable should have required
evidence of their actual content, not “mere speculation”
about what she said, to borrow the majority’s phrase
here. In any event, Harborside, not the dissent in that
case, is Board precedent, and I do not see how the deci-
sion can be distinguished meaningfully.
III.
In sum, consistent with Harborside, Adkisson’s con-
duct requires setting aside the election in this case. It
affected not 5 employees, as the majority finds, but 30—
far more than needed to change the outcome of the elec-
tion, which was decided by 21 votes. Our law with re-
spect to antiunion supervisory conduct must be no less
strict than our law with respect to prounion supervisory
conduct. Accordingly, I dissent.