Custom Trim Products, 787 (1981)

Custom Trim Products and United Furniture Workers of America, AFL-CIO and United Furniture Workers of America, AFL-CIO, Local 361. Cases 10-CA-15029, 10-CA-15184, 10CA-15386, 10-CA-14880, and 10-RC-11872

April 9, 1981

DECISION, ORDER, AND DIRECTION OF SECOND ELECTION

On August 18, 1980, Administrative Law Judge J. Pargen Robertson issued the attached Decision in this proceeding. Thereafter, Respondent and the Charging Party filed exceptions and supporting briefs, and Respondent filed a brief in answer to the Charging Party's exceptions.

The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order.

In this consolidated complaint and representation case proceeding, the Administrative Law Judge found several violations of Section 8(a)(1) of the Act, but dismissed other 8(a)(l) and (3) allegations.

The Charging Party and Respondent respectively have excepted to certain of these findings. Based on our examination of the record as a whole, we affirm the Administrative Law Judge's findings and recommendations on the unfair labor practice allegations of the complaint.

Notwithstanding his finding of 8(a)(1) violations, the Administrative Law Judge did not recommend that the election held herein, which the Union lost, be set aside. All but two of the 8(a)(1) violations found occurred either before the Union filed its election petition or after the election itself and thus were outside the critical period.2

With regard to the two violations that occurred within the critical period, and which were the subject of timely filed objections, the Administrative Law Judge found that one objection (Objection 20) was not properly before him, and that the other conduct (constituting Objections 7-8), while constituting an unfair labor practice, did not warrant setting the election aside. As explained below, we find.that these objections have merit, and that the first election should be set aside and a second one be directed.

IThe Charging Party has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc.., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings.

2 The petition was filed on August 21. 1979.,and the election was held on October 26. 1979.

255 NLRB No. 96

1. Although the Administrative Law Judge found that Respondent's October 19, 1979, letter to its employees conveyed to them that it would be futile to select the Union, and that the letter constituted a violation of Section 8(a)(1) of the Act, he did not pass on whether this letter was sufficient to warrant setting aside the election. The Administrative Law Judge noted that the letter was alleged as part of the Union Objection 20, but found that he was precluded from considering Objection 20 by an earlier Board Order. In this, the Administrative Law Judge was correct.3

   It now falls to the Board to consider the letter as part of Objection 20.

   Having done so, we find that Respondent's October 19 letter to all employees, which conveyed to employees the futility of selecting a union representative, and which was found by the Administrative Law Judge to be in violation of Section 8(a)(1) of the Act, is also sufficient to warrant setting aside the election.

   Generally, it is the Board's policy to direct a new election whenever an unfair labor practice occurs during the critical period since 'conduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the exercise of a free and untrammeled choice in an election.' 4

   The Board has carved out an exception to this policy, however, where it is virtually impossible to conclude that the violation could have affected the results of an election. In determining whether a violation could have affected the results of an election, we have considered 'the number of violations, their severity, the extent of dissemination, the size of the unit, and other relevant factors.' 5

   In Super Thrift, the bargaining unit included 24 employees, 2 of whom were subjected to coercive statements violative of Section 8(a)(1) of the Act. The Board concluded there that the election should be set aside. Here,

   Respondent mailed the October 19 letter to all of its employees. It was signed by a high-level supervisor, the plant manager. And it contained a threat which the Board has recognized is likely to have a 3 We note that initially the Regional Director had concluded that both parts of Objection 20, including the October 19 letter, had merit and warranted setting aside the election. Upon Respondent's request for review.

   the Board granted review on Objection 20 and indicated it would 'hold the disposition of the issues raised by that Objection in abeyance ....

   The Board further remanded the representation proceeding to the Regional Director to hold a hearing on Union Objections 7. 8, II. and 12.

   The Regional Director had indicated as an alternative to setting aside the election on Objection 20 that material issues of fact existed involving these other four objections. On remand, the Regional Director consolidated the objections for hearing with the unfair labor practices. The Administrative Law Judge in his Decision then ruled on Objections 7, 8. I11, and 12, but determined that the Board had reserved to itself possible later determination of Objection 20. Again, in this, we find the Administrative Law Judge correctly followed the Board's Order.

   Dal-Tex Optical Company, Inc.. 137 NLRB 1782. 1786 (1962) ' Super Thrift Maretc,. Inc. t/a Enola Super Thrift, 233 NLRB 409 (1977).

   CUSTOMTRIMt'RODUCTS 7)17 _.. _ substantial impact on employees' free choice.6

   Accordingly, we conclude that the part of Objection 20 alleging the October 19 letter to be objectionable should be sustained. 7

2. While the Administrative Law Judge found that Respondent had maintained an illegal no-distribution rule during a portion of the critical period, he found that this did not constitute objectionable conduct. We disagree.

   Respondent posted a notice to all employees on August 8, 1979, purporting to revise the employee handbook. The revisions included a paragraph which stated, inter alia, that:

   No distribution of any kind, including circulars or other printed materials shall be permitted in any area at any time.

   On August 21, 1979, the Charging Party filed its election petition. On August 28, 1979, Respondent posted a second notice to employees which was identical to the August 8 notice in all respects but one; i.e., one word had been included in the new no-distribution paragraph so that the paragraph now read:

   No distribution of any kind, including circulars or other printed materials shall be permitted in any work area at any time. [Emphasis supplied.] The Administrative Law Judge found the August 8 rule was violative of Section 8(a)(1) of the Act, as it was overly broad in prohibiting distribution in any area at any time. However, the Administrative Law Judge did not find this unlawful rule to be objectionable as it appeared to be an inadvertent error, it was corrected 7 days after the petition had been filed, and 59 days prior to the holding of the election; the record evidence failed to demonstrate that the unlawful rule had ever been applied to prohibit the distribution of literature; and there was no other objectionable conduct by Respondent.

   We disagree with the Administrative Law Judge's rationale for not finding the original rule to be objectionable conduct as we find the manner in which this rule was corrected was insufficient to apprise the employees of its repudiation.8

   Moreover, the fact that the record contains no evidence indicating that the rule was implemented fails to take account of the fact that the rule's mere existence tended to 'inhibit the union activities of con6 See, e.g., Donn Products. Inc. American Metal Corporation, 229

   NLRB 116(1977).

   7 In such circumstances, we find it unnecessary to pass (on that part of Objection 20 that alleges Respondent's October 15 letter as further objectionable conduct 8 See, e.g., Baldor Electric Co., 245 NLRB 614 (1979): cf. 7:V. and Radio Parts Company, Inc., 236 NLRB 689, 694 (1978).

   scientious minded employees.'9

   Finally, we note that our finding a portion of Objection 20 to be objectionable conduct eliminates the Administrative Law Judge's final reason for not finding the rule to also be objectionable conduct. Accordingly, the .posting of the unlawful no-distribution rule, albeit for only 7 days during the critical period, is another ground for setting aside the election. 0 ORDER

   Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Custom Trim Products, Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order.

   IT IS FURTHER ORDERED that the election held on October 26, 1979, in Case 10-RC-11872 be, and it hereby is, set aside, and that Case 10-RC-11872 be, and it hereby is, remanded to the Regional Director for the purpose of conducting a second election.

   [Direction of Second Election and Excelsior footnote omitted from publication.] u utomated Products. Inc., 242 NLRB 424 (1979).

   '' Chairman Fanning would also find that tlte new rule is objectionable. See his dissenting opinion in Stoddard-Quirk Manufacturing Co., 138

   NLRB 615, 625 (1962).

   DECISION

   STATEMENT OF THE CASE

   J. PARGEN ROBERTSON,...