Demi's Leather Corp., 966 (1996)

Demi's Leather Corp. and Amalgamated Clothing and Textile Workers Union, AFL-CIO-CLC.

Cases 3-CA-17081, 3-CA-17149, 3-CA-17350, 3-CA-17789, and 3-RC-9861

August 21, 1996

DECISION, ORDER, AND DIRECTION

BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN

On April 12, 1994, Administrative Law Judge William F. Jacobs issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed limited exceptions and a motion to strike an exhibit attached to the Respondent's brief, and the Respondent filed an opposition to the General Counsel's motion to strike and a cross-motion to reopen the record.

On March 13, 1995, the Board issued an Order Remanding the proceeding to the judge.1 On May 9, 1995, the judge issued the attached supplemental decision.2 The Respondent filed exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decisions and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,3 and conclusions and to adopt the recommended Order as modified4 and set forth in full below.

1. We agree with the judge's finding that the Respondent violated Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl3)fiMDB nently laying off employees Alan McArthur and Gregory Handy because they engaged in union activities

and because they had testified in the unfair labor practice hearing. The judge provided a reinstatement remedy for them. We observe that McArthur and Handy

were on temporary layoff status when they were per-

manently laid off. There is no contention that their temporary layoffs violated the Act. We shall modify the judge's recommended Order to require that McArthur and Handy be restored to the status that they would have enjoyed absent the Respondent's discrimination and be made whole for any loss of earnings and other benefits they may have suffered as a result of the discrimination against them.5

2. The Respondent has excepted to the judge's finding that Freddy Beman was a supervisor and therefore his ballot should not be counted. Although the Respondent is correct that the judge relied on some events that occurred after the election, contrary to the Respondent's contention, the judge also relied on events that occurred before and during the critical pe-

5 Chairman Gould would extend restoration and make-whole relief

to other individuals similarly situated to McArthur and Handy. The

Respondent accomplished its discrimination against McArthur and

Handy by changing its layoff policy to eliminate employee recall

rights. The record indicates, the administrative law judge found (fiMDBUfl*ERR17*fiMDNMflALJD 41-42)fiMDBUfl*ERR17*fiMDNMfl, and even the were other employees who were permanently laid off as a result of

the change in policy. In fact, the Respondent's brief (fiMDBUfl*ERR17*fiMDNMflp. 3

18)fiMDBUfl*ERR17*fiMDNMfl specifically names 11 other employees who ''were also by the [new] policy'' and states that ''[a]dditional letters were sent

to other employees on layoff as and when their respective layoffs

became permanent under the policy.'' The fact that counsel for the

General Counsel stated (fiMDBUfl*ERR17*fiMDNMflTr. 10, emphasis added)fiMDBUfl June 29, 1993, that ''[t]he practical effect of this policy to date has

really applied only to Mr. McArthur and Mr. Handy'' does not, of

course, mean that it has not subsequently applied to the other similarly situated employees. In sum, other individuals ''caught up in the

web'' of the Respondent's discrimination against McArthur and

Handy were therefore also victims of discrimination. Hedison Mfg.

Co., 249 NLRB 791, 794 fn. 13 (fiMDBUfl*ERR17*fiMDNMfl1980)fiMDBUfl*ERR17* 1981)fiMDBUfl*ERR17*fiMDNMfl. The identity of such individuals, if any, would be l compliance stage of this proceeding. Morton Metal Works, 310

NLRB 195 (fiMDBUfl*ERR17*fiMDNMfl1993)fiMDBUfl*ERR17*fiMDNMfl, enfd. 9 F Local 433 (fiMDBUfl*ERR17*fiMDNMflReynolds Electrical)fiMDBUfl*ERR17*fiMDNMfl,

F.2d 897 (fiMDBUfl*ERR17*fiMDNMfl9th Cir. 1991)fiMDBUfl*ERR17*fiMDNMfl. Member Browning does not agree with the Chairman's interpretation of the counsel for the General Counsel's opening remarks at the hearing on June 29, 1993, about the practical effect of the Respond-ent's change in layoff policy. Rather, she believes that when the counsel for the General Counsel stated that the practical effect of the change extended only to McArthur and Handy, he was conceding that there had been no impact on the other employees who had received similar letters about the change in policy before the hearing. Thus, although Member Browning agrees with the Chairman that the Board has the authority to extend the remedy to all those ''caught up in the web'' of the Respondent's discrimination, even in the absence of a complaint allegation or exceptions by the General Counsel, she would nevertheless not do so in the particular circumstances of this case.

Member Cohen agrees with Member Browning's result and with her view concerning the position of the General Counsel in this case. In addition, he notes the Chairman's speculation that other employees might have been affected. In Member Cohen's view, the problem with the Chairman's approach is that it furnishes a remedy for a class of employees, even though the General Counsel did not litigate the case on a class basis. Unlike the cases cited by the Chairman, a class was not alleged in the complaint, was not addressed in litigation, was not dealt with by the judge, and was not raised in exceptions by anyone before the Board. In these circumstances, Member Cohen would not now inject such a class into this case.

1 Because our Order Remanding was not printed in the bound volumes of the NLRB Decisions, it is attached hereto as Appendix B.

2 We disavow the judge's gratuitous and unfounded remarks concerning the Board and its staff.

3 The Respondent has 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 (fiMDBUfl*ERR17*fiMDNMfl1950)fiMDBUfl*ERR17*fiMDNMfl, enfd. 188

F.2d 362 (fiMDBUfl*ERR17*fiMDNMfl3d Cir. 1951)fiMDBUfl*ERR17*fiMDNMfl. We have carefully examined the record and find no basis for reversing the findings. The Respondent also argues

that the judge's supplemental decision should be reversed because it

is infected with bias against the Respondent. We find this exception

without merit.

The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the

issues and the positions of the parties.

4 We shall modify the judge's recommended Order in accordance with our decision in Indian Hills Care Center, 321 NLRB 144 (fiMDBUfl*ERR17*fiMDNMfl1996)fiMDBUfl*ERR17*fiMDNMfl.

riod. Specifically, we note that the judge credited Handy's testimony about Beman's supervisory duties at Briggs Street prior to the election.

3. The judge found that a Gissel6 bargaining order was appropriate. In the particular circumstances of this case, we have decided to defer ruling on the recommended bargaining order until the Regional Director has opened and counted the remaining challenged ballot and issued a revised tally of ballots.7 Accordingly, we shall direct the Regional Director to transfer the representation proceeding back to the Board after he has issued the revised tally of ballots.

4. The judge found that the Respondent violated

Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDN without bargaining with the Union. Given our treatment of the bargaining order issue, we have also decided to defer ruling on this finding.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Demi's Leather Corp., Johnstown, New York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl Interrogating employees about their union activities.

(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl Giving employees the impression that their union activities are under surveillance.

(fiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR17*fiMDNMfl Threatening employees with discharge or plant closure if they continue their union activities.

(fiMDBUfl*ERR17*fiMDNMfld)fiMDBUfl*ERR17*fiMDNMfl Promising employees benefits if they cease engaging in union activities.

(fiMDBUfl*ERR17*fiMDNMfle)fiMDBUfl*ERR17*fiMDNMfl Terminating employees because of their union activities.

(fiMDBUfl*ERR17*fiMDNMflf)fiMDBUfl*ERR17*fiMDNMfl Permanently laying off employees because they engaged in union activities or testified in NLRB proceedings.

(fiMDBUfl*ERR17*fiMDNMflg)fiMDBUfl*ERR17*fiMDNMfl In any like or related manner interfering with, restraining, or coercing employees in the exercise of

the rights guaranteed them in Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act.

(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl Within 14 days from the date of this Order, offer Anthony Valovic III full reinstatement to his former

job or, if that job no longer exists, to a substantially

equivalent position, without prejudice to his seniority

or any other rights or privileges previously enjoyed.

(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl Restore Alan McArthur and Gregory Handy to the status they would have enjoyed had the Respondent not discriminated against them.

(fiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR17*fiMDNMfl Make Gregory Handy whole for any loss of earnings and

other benefits suffered as a result of the discrimination

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