Carter's, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 2003

339 N.L.R.B. 1089 (N.L.R.B. 2003)

CARTER’S, INC. 1089
Carter’s, Inc. and Local 876, United Food and Com-
mercial Workers International Union, AFL–
CIO. Cases 7–CA–43097 and 7–CA-43092
August 21, 2003
DECISION AND ORDER
BY MEMBERS SCHAUMBER, WALSH, AND ACOSTA
On March 28, 2001, Administrative Law Judge Jerry
M. Hermele issued the attached decision. The Respon-
dent 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 decision and the record
in light of the Respondent’s exceptions and brief and
affirms the judge’s rulings, findings,1 and conclusions2
and adopts the recommended Order as modified herein.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Carter’s,
Inc., Petoskey, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Insert the following as paragraph 1(b) and reletter
subsequent paragraphs.
“(b) Implementing beneficial changes in wages and
handbook policies affecting employees during an elec-
tion campaign.”
2. Substitute the attached notice for that of the admin-
istrative law judge.
IT IS FURTHER ORDERED that the rerun election held on
May 19, 2000, in Case 7–RC–21554, is set aside and that
this case is severed and remanded to the Regional Direc-
tor for the purpose of conducting a new election.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The Respondent excepts only to the judge’s conclusions that the
Respondent’s implementation of wage increases and handbook policy
changes violated Sec. 8(a)(3) and (1). We agree with the judge that the
timing of the implementation of these changes, shortly before the rerun
election, raised an inference of coercion that the Respondent failed to
rebut by establishing an explanation other than the election for the
timing of its actions. See, e.g., STAR, Inc., 337 NLRB 983 (2002).
3 We will add Order language addressing the Respondent’s unlawful
implementation of beneficial changes, and we will substitute a new
notice in accordance with Ishikawa Gasket America, Inc., 337 NLRB
175 (2001).
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist any union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT prohibit employees from distributing lit-
erature in the parking lot.
WE WILL NOT promise employees during an election
campaign that we will match employee contributions to
the 401(k) plan.
WE WILL NOT impliedly advise employees during an
election campaign that beneficial changes are dependent
upon employees voting against the Union.
WE WILL NOT implement additional onerous rules dur-
ing an election campaign.
WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed by Section 7 of the Act.
WE WILL rescind the March 2000 changes set forth in
the employee handbook regarding employee access and
attendance.
WE WILL rescind the oral April 2000 rule prohibiting
employees from distributing literature in the parking lot.
CARTER’S INC.

A. Bradley Howell, Esq., for the Acting General Counsel.
David J. Houston and Claire V. Groen, Esqs. (Foster, Swift,
Collins, & Smith, P.C.), of Lansing, Michigan, for the Re-
spondent.
DECISION1
I. STATEMENT OF THE CASE
JERRY M. HERMELE, U.S. Administrative Law Judge. The
Union, Local 876, United Food and Commercial Workers In-
ternational Union, AFL–CIO, lost two elections to represent the
employees of a Petoskey, Michigan supermarket store owned
1 Upon any publication of this Decision by the National Labor Rela-
tions Board, unauthorized changes may have been made by the Board’s
Executive Secretary to the original Decision of the Presiding Judge.
339 NLRB No. 140
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1090
by the Respondent, Carter’s, Inc.: a June 18, 1999 election and
a May 19, 2000 rerun election following objections filed by the
Union to the conduct of the first election. On May 25, 2000,
the Union filed objections to the rerun election as well and on
September 29, 2000, the General Counsel filed a complaint
consolidating those objections and alleging several violations of
Section 8(a)(1) and (3) of the National Labor Relations Act. In
short, it is alleged that the Respondent tainted the rerun election
with various illegal benefits bestowed on the employees in
early 2000, as well as by imposing more onerous working con-
ditions before the rerun election. In an October 9, 2000 answer,
the Respondent denied any violation of the Act.
So, a trial was held in Petoskey, Michigan, on January 17,
2001, during which the General Counsel presented five wit-
nesses and the Respondent presented four witnesses. Both
parties then filed briefs on February 27, 2001.2
II. FINDINGS OF FACT
Carter’s has 20 supermarket stores in Michigan, including 1
in Petoskey. None of the stores is unionized and prior to 1999
there was only one union organizing drive at a store other than
Petoskey. Annually, the Respondent derives gross revenues
exceeding $500,000, and the Petoskey store purchases and
receives over $50,000 annually in interstate goods (GC Exh.
1(e); Tr. 15, 106–107). Overall, Carter’s has approximately
1800 employees, including 85 to 90 in Petoskey (Tr. 61).
On April 14, 1999, the Union filed a petition seeking to be-
come the collective-bargaining representative of the Petoskey
store employees (GC Exh. 1(a)). But on June 18, 1999, by a
vote of 46 to 30, the employees rejected the Union. Then, on
February 17, 2000, all parties stipulated to a rerun election,
which was held on May 19, 2000. The Union lost this vote as
well, 43 to 22 (GC Exh. 1(e)). The Respondent used Ed Ricker
as a consultant in its effort to defeat the Union, as he suggested
several changes that should be made regarding employee
wages, benefits, and access rules on company premises (Tr.
207–209, 226–227, 233).
The Company raised some employee wages in 1987 (R. Exh.
6). And it did so again in 1989 and 1990 (R. Exhs. 7–8). Be-
tween 1991 and 1996, another new wage scale was published
(R. Exh. 9). And in approximately 1996, Carter’s published yet
another wage scale for its employees. This 1996 scale con-
tained the starting salaries for 33 categories of employees, the
merit increases due after 90 days, 6 months, and each year
thereafter, and the top salary for each category. However,
raises were not automatic (R. Exh. 1; GC Exh. 4; Tr. 23–24, 30,
71–72, 228–229). Also, this scale was not distributed to em-
ployees but was available for any employee to see upon request
(Tr. 72–73). When employee Gary Steede asked his supervisor
to see the wage scale upon starting work in 1998, however, the
supervisor never showed it to him. Before the first election in
June 1999 though, Steede saw it during a meeting of employees
called by management (Tr. 154–155). Likewise, employee

2 On February 27, 2001, the Acting General Counsel also filed a mo-
tion to amend GC Exhs. 1(c) and (m). It is represented that the Re-
spondent has no objection. So, the motion will be granted.
Norene Bacon, who started in July 1999, was never shown the
wage scale until the 2000 election campaign (Tr. 146–148).
Over the years, Carter’s has always distributed a handbook
to its employees setting forth various company rules and poli-
cies. A handbook was created in 1995 but Vice President Glen
Minton decided to revise it in late 1998 because of several
“vague” matters therein. So, he talked about the changes with
the Company’s lawyer in January 1999, feeling “a sense of
urgency to get it done.” According to Minton, the revisions
were delayed by the union organizing drive at the Petoskey
store and the June 1999 election there (Tr. 91–94, 99, 106).
Eventually, the new handbook was drafted in late 1999 and
distributed to employees in March 2000 (Tr. 19, 158, 226).
There were several new benefits for employees set forth in the
new handbook. First, the old handbook merely stated that em-
ployees must wear “proper attire” (GC Exh. 2). According to
Minton, prospective new employees complained about certain
restrictions. So, the new handbook stated that “beards will be
allowed,” along with “neatly trimmed” sideburns and mus-
taches. Also, black or blue jeans, “well kept tennis shoes” and
“moderate jewelry” were now permitted (GC Exh. 3; Tr. 43,
205–206). Second, bereavement pay was expanded to include
grandchildren, daughters-in-law, sons-in-law, brothers-in-law,
and sisters-in-law. Also, while the old handbook simply pro-
vided for up to 3-days off with pay if the full-time employee
attended a funeral, the new handbook specified that the 3-days
off would start “with the day of the funeral and working back”
(GC Exhs. 2–3; Tr. 58). Third, the threshold for receiving 2
weeks of vacation pay was lowered from 3 years of continuous
employment to 2 years, and the threshold for 4 weeks vacation
was lowered from 17 to 15 years (GC Exhs. 2–3; Tr. 36, 136).
There were also restrictive changes in the new handbook.
One provision provided that:

You are permitted in the building no earlier than fifteen (15)
minutes prior to the start of your scheduled work shift and are
to leave the premises within fifteen (15) minutes after com-
pleting your work assignments and punching out. If you are
not working, you should not loiter on company premises.

(GC Exh. 3). This rule was resurrected from a pre-1995 rule in
effect at Carter’s, as Minton explained it, to combat theft and
liability issues (Tr. 39, 213–214). Also, the new handbook
said:

If any person tries to illegally coerce, trick, or force you into
signing a card, you are encouraged to report it to your super-
visor.

This statement was included in a section “What About Un-
ions?” (GC Exh. 3). Lastly, the old handbook provided that
employees “should notify their supervisor as soon as possible in
advance of the anticipated tardiness or absence,” and that poor
attendance and excessive tardiness “may lead to disciplinary
action, up to and including termination of employment” (GC
Exh. 2). The new handbook provided:

If you must leave immediately after work on any par-
ticular day for a special appointment, you should notify
your manager when you report for work. This will permit
CARTER’S, INC. 1091
your manager to make plans if extra work is needed in
your area.

It is very important that you, as part of the team, notify
the store manager or the person in charge of the store as
soon as you know you are going to be:

1. Late more than fifteen (15) minutes past your scheduled
starting time. If you do not call within this period of
time, another Associate will automatically be called to
work your schedule.

2. Absent that day. You must personally call EACH DAY
to your department manager that you are going to be ab-
sent. This enables someone else to be scheduled in your
place without damaging our customer service. Absence
in excess of more than one (1) day may have to be sub-
stantiated by a doctor’s report.

Associates who are habitually late are subject to disci-
plinary action. Excessive lateness is defined as being late
more than an average of three (3) times per month.

Associates who are excessively absent are subject to
disciplinary action. Excessive absenteeism is defined as
being absent more than an average of one (1) day per
month. Any Associate who is absent three (3) consecutive
scheduled workdays without reporting their absence to
their supervisor will be considered an “automatic quit.”
Associates who fail to report their absence on three (3) dif-
ferent occasions are subject to termination.

You are not to leave your job during your normal work
schedule without first obtaining permission from your de-
partment manager or the person in charge of the store.

Take only the scheduled time for lunch. If more time
is required, obtain your manager’s approval. [GC Exh. 3.]

The Company also developed a new wage scale for employ-
ees in early 2000. According to Minton, he concluded in late
1998 or early 1999 that the Company’s wages “were a serious
problem” after examining the written exit interviews completed
by departing employees, 17 percent of whom mentioned that
low pay was a reason for their leaving. Minton also based his
decision on the Company’s high employee turnover rate, the
low unemployment rate in Michigan, and competitors’ higher
wages (R. Exh. 2; Tr. 90, 108, 118, 186–187, 230). So, the new
wage scale reduced the number of job categories from 33 to 5,
renaming all the old categories. The lowest starting rate under
the old scale, at $5.50 per hour, was retained for the new cate-
gory of service clerk, and the highest rate of $13 under the old
scale for two leader positions was reduced to $12 in the new
scale for the position of journeyman clerk. But the new scale
provided increases for each of the five categories after set time
periods of service—e.g., after 500 hours, after 1000 hours, after
1500 hours, etc. Thus, henceforth, each employee would know
when his next wage increase would come by information re-
garding the number of accrued hours contained in his paycheck
(Tr. 232). Also, department managers, 13 of whom worked at
the Petoskey store, would be paid a salary, instead of an hourly
wage, equal to 45 hours of work instead of only 40. Further,
cake decorators, assistant department managers, and the night
crew received 50-cents-an-hour raises (GC Exhs. 4, 5; Tr. 28,
35, 65, 129, 131–134). Minton visited each company store,
including Petoskey in April, and announced the new wage scale
(Tr. 147–148, 216). But only Petoskey employees received the
new scale in the mail (Tr. 228). Minton told the department
managers that despite the change to salaried status they “still
needed to use the timeclock” (Tr. 210).
On March 31, 2000, the employee stock ownership plan
(ESOP) purchased all of the Company’s stock. To inform the
employees, the Company posted an announcement on April 19
which stated that “[w]e now have the ability to control our own
future as a company, as well as provide a more secure financial
position for our associates by building equity in the company”
(GC Exh. 9; Tr. 46–47). Then on May 5, the Company in-
formed the employees that the existing “Savings & Profit Shar-
ing Plan 401(k) and Trust” was changed as follows:

Associates can set aside up to ten percent (10%) of their earn-
ings and . . . the company will match in company stock, any
amount contributed by associates

Previously, the Company was not required to match employee
contributions, and often did not (GC Exh. 8; Tr. 41, 42, 45,
236). On June 30, 2000, however, before it took effect, the
Company rescinded this contribution change because it ex-
ceeded the ESOP’s requirements (GC Exh. 13; Tr. 237–40).
In April 2000, Minton told the Petoskey employees that it
was impermissible to place literature on any cars in the store
parking lot (Tr. 134). However, the employee handbook pro-
vides that:

There shall be no solicitation or distribution of literature of
any kind by any Associate during actual working time of the
Associate soliciting or the Associate being solicited. This
does not apply to rest periods or lunch periods.

Persons who are not Associates may not solicit or distribute
literature for any purpose in any customer service area, Asso-
ciate working area, or any area restricted to Associates only.
[GC Exh. 3.]

On April 22, 2000, employee Bruce Lyon was unhappy re-
ceiving antiunion campaign literature in his paycheck. So Lyon
talked with Petoskey Store Manager Larry Shoaff. Shoaff
asked Lyon how things could change for the better at the store.
Shoaff had never asked Lyon this before. Lyon told Shoaff,
“embrace the union” (Tr. 140–144, 249–251).
On May 11, 2000, Minton sent a letter to the Petoskey em-
ployees that read, in part, as follows:

If you look at the union contract between UFCW and Olsen’s
you will see why they won’t talk about improvements. The
union has had a contract with them for years, and yet Carter’s
pays better wages, has better benefits, more flexible work
rules and a much better retirement benefit (the 401-K) match,
and ESOP, (which is 100% company-paid) than the Union
has negotiated for it’s dues paying members. Carter’s has al-
ready proven we don’t need the UFCW to put together a good
wage and benefit package, and you sure don’t need the union
dues taken out of your take-home pay.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1092
(GC Exh. 10). And on May 15, Minton sent the following let-
ter to the Petoskey employees, in advance of the May 19 rerun
election:

Next Friday is another big day for you and the entire Com-
pany. You will, again, be asked to decide whose team leader-
ship you desire—The UFCW Union or the Company. All
other Carter Associates will be watching closely to determine
if you want to remain on their team or the unions. It’s your
decision to make, so cast a wise vote.

With each of us having beneficial ownership in the Company
(ESOP Plan), the sky is the limit with job opportunities,
wages and benefits. Why take a chance of derailing this posi-
tive condition for all of us by voting for UFCW Union Lead-
ership? Has the UFCW Union helped the associates of Giant,
Kroger, Hamady or Jewel here in Michigan? Why did all
these stores close? Is this UFCW Union job security?

Let’s look at what our leadership has provided!

A wage scale superior to the UFCW scale at another firm in
Michigan which is comparable to ours. No caps on earnings
. . . with good performance and increasing knowledge of busi-
ness, the more potential. This is especially true for all part-
time associates. The more they work, the sooner their next
wage review. Not like the UFCW Union where associates are
only reviewed every six (6) months.

In addition, there are no restrictions on when and where part-
time associates can work like there is in union contracts. The
cost to the company for the new PKP wage program is
$1,101,766, and it is not done yet. Remember part-time asso-
ciates pay the same amount in dues as full-time associates re-
gardless of the number of hours worked each week. (See the
attached wage schedule).

I have also attached a list of the many benefits Carter associ-
ates enjoy without the UFCW Union charging additional fees,
dues and assessments for them. The costs annually for
Carter’s benefit programs are $3,191,784.92.

As you review these attachments ask yourself who has the
greatest interest in your future. Then cast a wise vote on Fri-
day.

Thank you for your patience and understanding in this
strained and sticky situation.

A “NO” vote will mean you want to follow Carter’s leader-
ship and prosper with us in the future.

The bigger the “NO” vote will clearly tell the union how each
of you feel about them and their union.

Attached to this letter was the new wage scale, new vacation
policy, new bereavement policy of “up to three days off for
Death of an immediate family member,” and recapitulation of
other existing benefits (GC Exh. 12; Tr. 235). The Union lost
the second vote as well, 43 to 22. But on May 25, the Union
filed objections to the election, followed by the General Coun-
sel’s September 29, 2000 consolidated complaint.
III. ANALYSIS
The General Counsel and the Union allege 6 unfair labor
practices and 14 objections to the Respondent’s conduct in
early 2000, which despoiled the May 19, 2000 rerun election at
the Petoskey store. Specifically, the subjects of dispute are as
follows: (a) implementation of a new pay scale for all company
employees; (b) beneficial changes in the Company’s new em-
ployee handbook regarding attire, bereavement pay/funeral
leave, and vacation eligibility; (c) new beneficial provisions
regarding the ESOP and 401(k) plan; (d) restrictive changes in
the new handbook regarding attendance, employee access on
company premises, and union solicitation; (e) an April 2000,
oral no-distribution rule promulgated at Petoskey; and (f) an
April 22 illegal solicitation of grievances by the Petoskey store
manager of an employee. The Respondent’s main defenses to
these charges are that the implementation of the various
changes was unconnected to the May 2000 election or so de
minimis as not to affect the outcome of the election.
As to the initial allegation, it is concluded that the Respon-
dent’s adoption of the new wage scale in early 2000 violated
Section 8(a)(1) and (3) of the Act because it was designed to
sway employees to vote against the Union on May 19, 2000.
First, the timing of the new scale is incredibly suspicious be-
cause before 2000 the Company followed no set pattern regard-
ing wage increases. Even conceding that it “was time” for an
increase in 2000, the Respondent introduced no evidence that it
contemplated increases before the onset of union activity in
April 1999, other than Vice President Glen Minton’s vague and
self-serving testimony that he concluded in late 1998 that low
wages “were a serious problem.” In this regard, Minton testi-
fied that he relied on exit interviews from departing employees
to reach this conclusion, but only 17 percent of those interviews
even mentioned low wages. Second, aside from the increases
themselves, the changes in the structure of the 2000 scale were
significant in scope. For example, the 2000 scale reduced the
number of job categories from 33 to 5, provided for increases
based on the number of hours actually worked by an employee,
converted certain employees from hourly to salary basis, and
provided for 50-cents-an-hour premiums for three specific em-
ployee categories. Third, the Respondent defends the 2000
wage scale based on the fact that it was implemented company-
wide, as opposed to at the Petoskey store only. However, the
Respondent cites no legal basis in support of this argument.
Fourth, while Minton announced the new wage scale at each
store, it is significant that only the Petoskey employees re-
ceived the new scale in the mail. And they received it just days
before election accompanied by antiunion literature. In short,
the favorable preelection wage revision was undertaken with
the express purpose of impinging upon the employees’ freedom
of choice for or against unionization and was reasonably calcu-
lated to have that effect. NLRB v. Exchange Parts Co., 375
U.S. 405, 409 (1964); Ideal Elevator Corp., 295 NLRB 347,
351 (1989).
Second, the various beneficial changes in employees’ vaca-
tion eligibility, dress code, and funeral leave/bereavement pay
further violated Section 8(a)(1) and (3). Once again, the timing
of these changes, established in the Company’s March 2000
handbook and distributed to all employees, interfered with the
CARTER’S, INC. 1093
employees’ free choice before the May 19 election. Indeed, the
Respondent offered only a vague explanation as to the timing
of these changes, claiming that it needed to clarify certain
“vague” matters in the old handbook and address some com-
plaints about attire restrictions. But even though the revision of
the handbook began in late 1998 it took over a full year to fin-
ish, for reasons insufficiently explained other than pending
union activity at the Petosky store. While the Respondent
claims that these beneficial changes were minor, and thus
unlikely to influence the election outcome, these changes must
be considered in the context of all the unlawful changes made
by the Respondent in the preelection period. Therefore, it is
concluded that the beneficial changes set forth in the revised
handbook also improperly interfered with the May 19 election.
Third, the May 5, 2000 promise of matching contributions to
the employees’ 401(k) plan also violated Section 8(a)(1), as did
the May 15, 2000 letter to employees urging an antiunion vote,
which at the same time reminded employees of various recent
beneficial changes, including the March 31, 2000 ESOP pur-
chase of all the Company’s stock. Again, the timing of these
announcements, just before the May 19 rerun election, is highly
suspicious. While the 401(k) change was erroneously prom-
ised, that promise was not rescinded until after the election.
Moreover, no Respondent witness testified as to rationale for
the change in the first place, nor does the Respondent discuss
this matter at all in its brief. Therefore, it is likewise concluded
that these actions were designed to interfere with employees’
free choice in the May 19 election.
Fourth, turning to the onerous changes set forth in the new
handbook, the Respondent contends that it adopted the new rule
encouraging employees to report anyone “illegally” coercing,
tricking or forcing them into signing union cards because of
one employee’s 1999 complaint about union representatives
visiting her at home. While there is no evidence to support this
proposition (Tr. 243–245), by limiting the rule to illegal union
conduct, it cannot be concluded that employees would reasona-
bly interpret it to include lawful union attempts to persuade
employees to sign union cards. Compare, Nashville Plastic
Products, 313 NLRB 462 (1993) (rule requesting employees
who were “bothered” or “harassed” to report it to management
violated the Act). Therefore, this change did not violate the
Act. Next, the new no-access rule allowed employees to be in
the building only 15 minutes before and 15 minutes after the
work shift, and prohibited loitering on company premises dur-
ing nonworking time. This latter clause, however, arguably
limited nonworking employees’ access to nonworking areas.
Further, the Respondent failed to offer a legitimate business
reason for this rule, other than vague concerns about theft and
liability. Moreover, the timing of the new rule strongly sug-
gests that it was promulgated in response to the union cam-
paign. See Nashville Plastic Products, supra. Hence, the rule
violated Section 8(a)(1) and (3) and the Respondent will be
ordered to rescind it. Tri-County Medical Center, 222 NLRB
1089 (1976). Lastly, the new attendance policy was far more
specific than the old rule which merely provided that employ-
ees should notify their supervisor as soon as possible in ad-
vance of an absence or tardiness, and that poor attendance and
excessive tardiness could lead to disciplinary action. In view of
the Respondent’s failure to provide any justification for the
implementation of new rules immediately before the election, a
violation of Section 8(a)(1) and (3) has been established. Thus,
the Respondent will be required to rescind these rules.
Fifth, in April 2000 Minton told the Petoskey employees that
they could not place literature on any cars in the parking lot.
But this new oral rule contradicted the handbook, issued just
one month before, which prohibited distribution only during
working time. Moreover, the Respondent advanced no legiti-
mate business justification for the new rule, thus strongly sug-
gesting that the purpose of this rule was to dampen support for
the upcoming union vote. Hence, the oral promulgation thereof
violated Section 8(a)(1) and (3) and the Respondent will be
ordered to rescind that one too. Stoddard-Quirk Mfg. Co., 138
NLRB 615 (1962).
Sixth and finally, the General Counsel alleges that Petoskey
Store Manager Larry Shoaff improperly solicited grievances
from employee Bruce Lyon on April 22, 2000, when Lyon
complained about receiving antiunion literature in his paycheck
and Shoaff asked how things could be improved at the store.
But Shoaff did not initiate this meeting nor did he inquire about
a specific complaint from Lyon. Also, Shoaff did not promise
to remedy Lyon’s complaint. Under the circumstances, there-
fore, the Respondent did not violate Section 8(a)(1). Compare,
Altrex Industries Corp., 328 NLRB No. 57 (1999) (not reported
in Board volumes) (supervisor explicitly solicited grievances
and promised to take action on employee complaint); American
Freightways, 327 NLRB 832 (1999) (employer promised to fix
specific complaints).
In summary, the Respondent committed a variety of illegal
acts just before the May 19, 2000 rerun election, involving both
beneficial and detrimental changes to the employees’ working
conditions. On the beneficial side of the ledger, the Respon-
dent implemented a better wage scale, promised to match em-
ployee contributions to the 401(k) plan, and implemented a
better vacation policy, a more liberal dress code, and better
policies regarding bereavement pay and funeral leave. As for
detrimental changes, the Respondent tightened rules on atten-
dance, employee access during nonworking time, and distribu-
tion in the parking lot. And the Respondent’s May 15 mailing
to employees was an attempt to discourage a prounion vote by
reminding them of the recent benefits. Because of the number
of violations, their severity, and the impact on all the employ-
ees, the Presiding Judge concludes that the “laboratory condi-
tions” of the May 19, 2000 election were so adversely affected
as to warrant setting aside the election result. Caron Interna-
tional, 246 NLRB 1120 (1979); Dal-Tex Optical Co., 137
NLRB 1782 (1962). Thus, a new election will be ordered, as
well as rescission of the detrimental changes and an appropriate
notice posting.
CONCLUSIONS OF LAW
1. The Respondent, Carter’s, Inc., is an employer engaged in
commerce within the meaning of Sections 2(2), (6), and (7) of
the Act.
2. The Union, Local 876, United Food and Commercial
Workers International Union, AFL–CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1094
3. The Respondent violated Section 8(a)(1) and (3) of the
Act in early 2000 by implementing various beneficial changes
to the employees’ wage scale, as alleged in paragraphs 8(a) and
(h) and 9(a) of the Acting General Counsel’s complaint.
4. The Respondent violated Section 8(a)(1) and (3) of the
Act in March 2000 by making various changes to its employee
handbook favorable to employees, including a more lenient
dress code, better funeral benefits, and better vacation benefits,
as alleged in paragraph 8(c) of the complaint.
5. The Respondent violated Section 8(a)(1) and (3) of the
Act in March 2000 by implementing more onerous attendance
requirements and access rules in the employee handbook, as
alleged in paragraph 9(b) of the complaint.
6. The Respondent violated Section 8(a)(1) and (3) of the
Act in early 2000 by orally promulgating a rule prohibiting
employees from distributing literature in the parking lot, as
alleged in paragraph 8(b) of the complaint.
7. The Respondent violated Section 8(a)(1) of the Act in
May 2000 by promising employees that it would match em-
ployee contributions to the 401(k) plan of up to 10 percent, as
alleged in paragraph 8(g) of the complaint.
8. The Respondent violated Section 8(a)(1) of the Act on
May 15, 2000, by impliedly advising employees that the im-
provement to the ESOP and other beneficial changes were de-
pendent upon employees voting against union representation, as
alleged in paragraph 8(f) of the complaint.
9. The Acting General Counsel has failed to prove his alle-
gations in paragraphs 8(d) and (e) of the complaint.
10. The Union’s Objections 2, 3, 4, 5, 8, 9, and 14 are sus-
tained.
11. The Union’s Objections 1, 6, 7, 10, 11, 12, and 13 are
overruled.
12. The unfair labor practices and campaign misconduct of
the Respondent, described in paragraphs 3, 4, 5, 6, 7, 8, and 10,
above, affect commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
Accordingly, IT IS ORDERED3 that the Respondent, Carter’s,
Inc., Petosky, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Prohibiting employees from distributing literature in the
parking lot.
(b) Promising employees during an election campaign that it
will match employee contributions to the 401(k) plan.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
(c) Impliedly advising employees during an election cam-
paign that beneficial changes are dependent upon employees
voting against union representation.
(d) Implementing additional onerous rules affecting em-
ployees during an election campaign.
(e) In any like or related manner, interfering with, restrain-
ing, or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Do the following
(a) Rescind the March 2000 changes set forth in the em-
ployee handbook regarding employee access and attendance.
(b) Rescind the oral rule promulgated in April 2000, prohib-
iting employees from distributing literature in the parking lot.
(c) Post at its facility in Petosky, Michigan, copies of the at-
tached notice marked “Appendix.”4 Copies of the notice on
forms provided by the Regional Director for Region 7 after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 con-
secutive 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. In the
event that, during the pendency of these proceedings, the Re-
spondent has gone out of business, been purchased or closed
the facility involved in these proceedings, Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current and former employees employed by Respondent
since February 2000.
(d) File with the Regional Director a sworn certification of a
responsible official on a form provided by the Region attesting
to the steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the Acting General Counsel’s
February 27, 2001 motion to amend General Counsel’s Exhibits
1(c) and (m) is granted.
IT IS FURTHER ORDERED that paragraphs 8(d) and (e) of the
Acting General Counsel’s complaint are dismissed.
IT IS FURTHER ORDERED that the election held in Case 7–RC–
21554 on May 19, 2000, is set aside, and that the case is re-
manded to the Regional Director for Region 7 for the purpose
of conducting a new election.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”