Leather Center, Inc., 521 (1993)

Leather Center, Inc. and International Union of Electronic, Electrical, Salaried, Machine & Furniture Workers, AFL-CIO. Cases 16-CA- 15227 and 16-RC-9424

September 30, 1993

DECISION AND ORDER

BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND RAUDABAUGH

On April 6, 1993, Administrative Law Judge George Christensen issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions1

and briefs and has decided to affirm the judge's rulings,2 findings,3 and conclusions4 and to adopt the recommended Order as modified and set forth in full below.5

AMENDED CONCLUSIONS OF LAW

1. Substitute the following for paragraph 3, and retain subparagraphs 3(a) through (g).

   ''3. Leather Center violated Section 8(a)(1) of the Act and prevented a free and fair election on September 20 by promulgating and maintaining the following rules or policies during the second IUE campaign prior to the September 20 election:''

2. Substitute the following for paragraph 4.

   ''4. Leather Center violated Section 8(a)(1) of the Act and prevented a free and fair election on September 20 by its disparate enforcement of its rules and policies regarding employee solicitations and distributions and the wearing of caps.''

3. Insert the following as paragraph 5, and renumber the subsequent paragraphs.

   ''5. The conduct described above in paragraph 4 constitutes objectionable conduct affecting the results of the September 20, 1991 election.''

   AMENDED REMEDY

   The judge recommended, inter alia, that the September 20, 1991 election be set aside, that a second election be held, and that it was accordingly unnecessary to open and count the determinative challenged ballots of the nine eligible voters. These determinative challenged ballots may render a second election unnecessary, however. See Pay N' Save Stores, 291 NLRB 979 (1988). We accordingly modify the judge's remedy to remand this proceeding to the Regional Director to open and count these nine determinative challenged ballots, and to prepare and serve on the parties a revised tally of ballots. The Regional Director shall issue the appropriate certification of representative if the Union receives a majority of the valid ballots cast. If the Union does not prevail, however, the Regional Director shall set aside the election because of the Respondent's objectionable conduct and other unlawful conduct during the critical period prior to the election, and shall conduct a new election.

   ORDER

   The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Leather Center, Inc., Carrollton, Texas, its officers, agents, successors, and assigns, shall

1. Cease and desist from

   (a) Promulgating and maintaining in effect the following rules or policies contained in its Leather Center Associate Manual:

   (1) Requiring employees to secure its permission prior to soliciting other employees, distributing literature to other employees, or posting literature within the facility.

   1 The Respondent has not excepted to the judge's findings that the Respondent violated Sec. 8(a)(1) of the Act by promulgating and maintaining its no-solicitation or no-distribution rule and its policies regarding posting of literature and confidentiality of wage policies.

   2 The Respondent has excepted to the judge's ruling, upon the General Counsel's request, that the judge take notice of a prior decision regarding these parties. See Leather Center, Inc., 308 NLRB 16 (1992). Our examination of the record indicates that the judge reviewed only one page of this prior decision for the limited purpose of evaluating the credibility of a particular witness in the instant case. We find the judge did not err in considering witness statements in this earlier decision.

   3 The judge inadvertently stated that the Union filed its unfair labor practice charge on September 20, 1991, when in fact the charge was filed on September 16, 1991. The judge also inadvertently misspelled the last name of one eligible voter in sec. III,F,3 of his decision, referring to Eli Hague as ''Haig.''

   4 We are amending the judge's Conclusions of Law to comport with the language of the complaint allegations that the Respondent violated Sec. 8(a)(1) of the Act by promulgating and maintaining seven personnel policies contained in its ''Leather Center Associate Manual.'' We are further amending the Conclusions of Law to reflect the judge's findings that the Respondent engaged in objectionable conduct by disparately enforcing its no-solicitation or no-distribution rule and its restriction on the wearing of caps, and that such disparate enforcement also violated Sec. 8(a)(1) of the Act. Although the latter 8(a)(1) violations were not specifically alleged in the complaint, they were fully litigated at trial. See Facet Enterprises, 290 NLRB 152, 153 (1988), enfd. 907 F.2d 963 (10th Cir. 1990).

   On the other hand, there was no objection and no 8(a)(1) allegation concerning the Respondent's enforcement of its rule requiring permission for postings. There is also a substantial question as to whether this issue was fully litigated. In view of these considerations and in light of the fact that we are ordering that the rule be rescinded, we do not pass on the judge's finding that the Respondent violated Sec. 8(a)(1) by its enforcement of that rule.

   5 We are amending the judge's recommended remedy to remand the representation proceeding to the Regional Director to open and count the determinative challenged ballots of the nine eligible voters, because the disposition of these determinative challenges may render a second election unnecessary.

   (2) Barring employees from discussing with other employees their and other employees' wages.

   (3) Barring employees from generating and/or encouraging rumors.

   (4) Barring employees from discussing Leather Center policies and/or practices with representatives of the media.

   (5) Limiting the wearing of caps by employees within the plant to caps bearing Leather Center insignia.

   (6) Requiring employees to promise in writing to comply with Leather Center's antiunion policy.

   (7) Permitting employees who oppose representation by the International Union of Electronic, Electrical, Salaried, Machine & Furniture Workers, AFL-CIO to solicit other employees to join their opposition, to distribute literature supporting their views, and to wear Leather Center insignia on their caps, while barring employees who support such representation from such solicitation, distribution, or wearing caps with union insignia.

   (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act.

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

   (a) Rescind the rules or policies: (1) requiring employees to secure Leather Center's permission prior to soliciting other employees, distributing literature to other employees, and posting literature within the plant; (2) barring employees from discussing with other employees their wages and the wages of other employees; (3) barring employees from generating or encouraging rumors; (4) barring employees from discussing with media representatives Leather Center policies and/or practices; (5) barring employees from wearing caps bearing union insignia; and (6) requiring employees to sign a statement promising to comply with Leather Center's antiunion policy.

   (b) Notify employees who have signed statements promising to comply with Leather Center's rules and policies they are not required to comply with Leather Center's antiunion policy.

   (c) Post at its plant at Carrollton, Texas, in English and Spanish, copies of the attached notice marked ''Appendix.''6 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps

   shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.

   (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.

   IT IS FURTHER ORDERED that Case 16-RC-9424 is severed from Case 16-CA-15227, and that Case 16- RC-9424 is remanded to the Regional Director for Region 16 in order to open and count the ballots of Yvonn Acy, Jose Arrendondo, Cladia Espanozia, Diana Garcia, Eliseo Gonzalez Sr., Eli Hague, Elio Sanchez, Ron Torres, and Julio Vega, and to prepare and serve on the parties a revised tally of ballots. Thereafter, the Regional Director shall issue the appropriate certification of representative if the Union receives a majority of the valid ballots cast. If, however, the Union should not prevail, the Regional Director shall set aside and other unlawful conduct during the critical period prior to the election, and conduct a new election.

   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 violated the National Labor Relations Act and has ordered us to post and abide by this notice.

   Section 7 of the Act gives employees these rights.

   To organize

   To form, join, or assist any union

   To bargain collectively through representatives of their own choice

   To act together for other mutual aid or protection

   To choose not to engage in any of these protected concerted activities.

   WE WILL NOT promulgate and maintain in effect the following rules or policies contained in our Leather Center Associate Manual:

   (1) Requiring you to get our permission...