Leather Center, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 521 (N.L.R.B. 1993)

521
312 NLRB No. 83
LEATHER CENTER, INC.
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 deci-
sion regarding these parties. See Leather Center, Inc., 308 NLRB 16
(1992). Our examination of the record indicates that the judge re-
viewed 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 inadvert-
ently 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 re-
flect the judge’s findings that the Respondent engaged in objection-
able conduct by disparately enforcing its no-solicitation or no-dis-
tribution 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 com-
plaint, 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) allega-
tion 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 re-
scinded, 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.
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 Respond-
ent 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 rul-
ings,2 findings,3 and conclusions4 and to adopt the rec-
ommended Order as modified and set forth in full
below.5
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for paragraph 3, and re-
tain subparagraphs 3(a) through (g).
‘‘3. Leather Center violated Section 8(a)(1) of the
Act and prevented a free and fair election on Septem-
ber 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 Septem-
ber 20 by its disparate enforcement of its rules and
policies regarding employee solicitations and distribu-
tions 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 Septem-
ber 20, 1991 election be set aside, that a second elec-
tion be held, and that it was accordingly unnecessary
to open and count the determinative challenged ballots
of the nine eligible voters. These determinative chal-
lenged ballots may render a second election unneces-
sary, however. See Pay N’ Save Stores, 291 NLRB
979 (1988). We accordingly modify the judge’s rem-
edy 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 re-
vised 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 Di-
rector shall set aside the election because of the Re-
spondent’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 rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Leath-
er Center, Inc., Carrollton, Texas, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining in effect the fol-
lowing rules or policies contained in its Leather Center
Associate Manual:
(1) Requiring employees to secure its permission
prior to soliciting other employees, distributing lit-
erature to other employees, or posting literature within
the facility.
522 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(2) Barring employees from discussing with other
employees their and other employees’ wages.
(3) Barring employees from generating and/or en-
couraging rumors.
(4) Barring employees from discussing Leather Cen-
ter policies and/or practices with representatives of the
media.
(5) Limiting the wearing of caps by employees with-
in 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 dis-
tribute 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 em-
ployees 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 dis-
cussing 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 con-
spicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices 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 Re-
spondent 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 Re-
gion 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 certifi-
cation of representative if the Union receives a major-
ity 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 pe-
riod 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 or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected 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 before solic-
iting other employees, distributing literature to other
employees, or posting literature within the plant.
(2) Barring you from discussing your and other em-
ployees’ wages.
(3) Barring you from generating or encouraging ru-
mors.
(4) Barring you from discussing our policies and/or
procedures with representatives of the media.
(5) Limiting you to wearing a cap containing Leath-
er Center insignia in the event you choose to wear a
cap within the plant.
523LEATHER CENTER, INC.
1 Read 1991 after further date references omitting the year.
2 While every apparent or nonapparent conflict in the evidence has
not been specifically resolved below, my findings are based on my
examination of the entire record, my observation of the witnesses’
demeanor while testifying and my evaluation of the reliability of
their testimony; therefore any testimony in the record which is in-
consistent with my findings is hereby discredited.
(6) Requiring you to promise to comply with our
antiunion policy.
(7) Permitting employees who are opposed to union
representation to solicit other employees to join in that
opposition, to distribute literature to other employees
expressing opposition to union representation, and to
wear caps containing our insignia while barring em-
ployees who support union representation from such
solicitations, distributions, and the wearing of caps
containing union insignia.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL rescind our rules or policies requiring you
to secure our permission prior to soliciting other em-
ployees, distributing literature to other employees, or
posting literature within the plant.
WE WILL rescind our rule or policy barring you
from discussing your and other employees’ wages.
WE WILL rescind our rule or policy barring you
from generating and/or encouraging rumors.
WE WILL rescind our rule or policy barring you
from discussing with representatives of the media our
policies and/or practices.
WE WILL rescind our rule requiring you, in the event
you wish to wear a cap at work, to wear only a cap
bearing our insignia.
WE WILL rescind our rule or policy requiring you to
promise to comply with our antiunion policy and WE
WILL notify you that you do not have to comply with
that policy.
LEATHER CENTER, INC.
Edward B. Valverde, for the General Counsel.
William B. Finegan (Haynes & Boone), of Dallas, Texas, for
the Respondent.
Jaime P. Martinez, of San Antonio, Texas, for the Union.
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge. On
September 20, 1991,1 Region 16 of the National Labor Rela-
tions Board (the Board) conducted an election among a unit
of employees of Leather Center, Inc. (Respondent) to decide
whether a majority of the unit employees desired representa-
tion by the International Union of Electronic, Electrical, Sal-
aried, Machine & Furniture Workers, AFL–CIO (IUE) in
Case 16–RC–9424. The tally of the election results reflected
challenges to 15 of the ballots cast, a sufficient number to
affect the results of the election.
On the same date, IUE filed a charge with Region 16 in
Case 16–CA–15227 alleging rules promulgated by Respond-
ent on April 1 and maintained in effect thereafter interfered
with, restrained, and coerced unit employees in the exercise
of their rights under Section 7 of the Act, thereby violating
Section 8(a)(1) of the Act.
IUE shortly thereafter filed timely objections to the elec-
tion on the ground preelection conduct by Respondent pre-
vented a free and fair election, including an objection that
Respondent’s enforcement of rules alleged to be violative of
the Act in the IUE charges also prevented a free and fair
election.
On October 28 Region 16 issued a complaint based on
IUE’s September charges.
On November 5 the Regional Director for Region 16 con-
solidated the two cases for purposes of hearing and rec-
ommended disposition of the issues raised by the challenges,
the objections, and the complaint allegations.
I conducted a hearing on those issues at Fort Worth,
Texas, on January 12, 1993. The General Counsel and Re-
spondent appeared by counsel and IUE appeared by the sec-
retary-treasurer of its District 11. All three were afforded full
opportunity to adduce evidence, examine and cross-examine
witnesses, argue, and file briefs. The General Counsel and
Respondent filed briefs.
Based on my review of the entire record, observation of
the witnesses, perusal of the briefs and research, I enter the
following
FINDINGS OF FACT2
I. JURISDICTION AND LABOR ORGANIZATION
The complaint alleged, the answer admitted, and I find at
all pertinent times Respondent was an employer engaged in
commerce in a business affecting commerce and IUE was a
labor organization within the meaning of Section 2 of the
Act.
II. THE UNIT
Prior to the September 20 election, IUE and Respondent
agreed the following unit was appropriate for collective-bar-
gaining purposes within the meaning of Section 9 of the Act:
INCLUDED; All production and maintenance em-
ployees, including wood shop, leather shop, shipping,
receiving, pattern cutting and research and development
departments and customer service employees employed
by the Employer at its Carrollton, TX facilities.
EXCLUDED; All other employees, professional em-
ployees, confidential employees, office employees,
truckdrivers, guards and supervisors as defined in the
Act.
Based on the foregoing, I find at all pertinent times the
above-described unit was appropriate for collective-bargain-
ing purposes within the meaning of Section 9 of the Act.
524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES,
PREVENTION OF A FAIR ELECTION AND CHALLENGES
A. Preliminary
1. The complaint
The complaint alleged Respondent’s promulgation, mainte-
nance, and enforcement of a number of rules or policies fol-
lowing a 1990 representation election and prior to a 1991
representation election violated Section 8(a)(1) of the Act.
The complained of rules or policies concerned unit em-
ployee: (1) solicitations of other unit employees and distribu-
tions to other unit employees within plant facilities; (2) post-
ing of material within the plant; (3) discussion with other
employees of wages; (4) generation of and/or encouraging
rumors; (5) communications with media representatives; (6)
compliance with Respondent’s antiunion policy; and (7)
wearing of union insignia, i.e., caps containing IUE insignia.
2. The election objections
The election objections alleged Respondent prevented a
free and fair election by:
1. The forcing a ‘‘vote no’’ sticker on a unit
employee/IUE supporter the day before the second elec-
tion; and
2. Threatening a unit employee/IUE committeeman
for wearing IUE cap insignia on plant premises prior to
the second election.
A third IUE objection was withdrawn by IUE prior to the
close of the hearing.
3. The ballot challenges
The final tally at the September 20 election reflected 86
votes for IUE representation, 90 votes against IUE represen-
tation, and 15 ballot challenges, a number sufficient to affect
the election results.
IUE challenged ballots cast by Jose Arrendondo, Eliseo
Gonzalez Sr., Elio Sanchez, Ron Torres, and Julio Vega on
the ground Arrendondo, Sanchez, Torres, and Vega were su-
pervisors and Gonzalez Sr. was a supervisor and agent of
Respondent.
The election officer challenged the ballots cast by Yvonn
Acy, Maria Andrada, Genera Bautista, Cladia Espanozia,
Diana Garcia, Eli Hague, Refugio Merez, and Martha Moya
on the ground their names did not appear on the voter eligi-
bility list furnished by Respondent prior to the election.
Prior to the close of the hearing, IUE withdrew its chal-
lenges to the ballots cast by Arrendondo, Sanchez, Torres,
and Vega; the parties agreed the election officer’s challenge
to the ballots cast by Acy, Espanozia, Garcia, and Hague
should be overruled, inasmuch as they were in layoff status
awaiting recall; and Respondent conceded the validity of the
IUE challenges to the ballots cast by Mora and Setz inas-
much as they were not employees within the unit.
Left for my recommended disposition is the question of
whether the IUE challenge to the ballot cast by Gonzalez Sr.
and the election officer’s challenges to the ballots cast by
Andrada, Bautista, Merez, and Moya should be counted or
rejected.
B. Background
IUE began the organizing campaign among the unit em-
ployees which culminated in the first election in February
1990.
The election was held in June 1990 (Case 16–RC–9308).
IUE lost the election, filed objections thereto alleging Re-
spondent’s preelection conduct prevented a free and fair elec-
tion, filed charges Respondent committed unfair labor prac-
tices during the election campaign, and the Region issued a
complaint based on the charges (Case 16–CA–14624).
A hearing on the election objections and unfair labor prac-
tices was conducted by Judge Wacknov in June, July, and
August 1991 (the RC and CA cases were consolidated for
hearing and decisional purposes).
During the hearing, IUE announced it was withdrawing its
objections to the election and requesting the issuance of a de-
cision certifying the results of the election, to enable IUE to
file a new petition for certification (since a year had passed
since the first election).
IUE submitted the request, the results of the first election
were certified, and in August 1991 IUE filed a petition for
certification as the exclusive representative of Leather Craft
employees within the unit described above—Case 16–RC–
9424—and commenced a second organizational campaign
among Respondent’s employees.
Judge Wacknov issued his decision in Case 16–CA–14624
in March 1992, finding Respondent committed violations of
the Act and recommended remedies therefor. In July 1992
the Board adopted Judge Wacknov’s findings and conclu-
sions and directed Respondent to comply with the rec-
ommended remedies (308 NLRB 16).
C. Leather Craft Rules or Policies Prior to the
First Election
Prior to and during the time IUE conducted its first orga-
nizing campaign and the date of the first election and con-
tinuing thereafter until April 1991, while the IUE objections
in Case 16–RC–9308 and the unfair labor practice case (Case
16–CA–14624) were pending and unresolved:
1. Respondent did not issue, post, or distribute to unit em-
ployees any written rules or regulations governing solicita-
tions or distributions on Respondent’s premises or other rules
restricting employee communications.
2. The wearing of caps while on the premises was left to
employee choice, i.e., Respondent had no rule or policy gov-
erning the wearing of caps at the facility. During the IUE
campaign preceding the first election, unit employees/IUE
supporters distributed caps containing IUE insignia on and
within the plant facility and grounds during morning, after-
noon, and lunchbreaks, as well as before and after work, in
nonworking areas (the employee cafeteria, the gymnasium,
the sports facilities and the parking lot) and Respondent’s su-
pervisors distributed brightly colored caps containing the
caption ‘‘I LUV LEATHER CENTER’’ during working
time. During the IUE campaign preceding the first election,
some unit employees wore the IUE caps while working, oth-
ers wore the company caps while working, and still others
wore caps bearing sports teams insignia. Respondent made
no effort to restrict the wearing of any of the caps.
3. During the periods and in the areas described above,
unit employees/IUE supporters, as well as unit employees
525LEATHER CENTER, INC.
3 The manuals were available in both English and Spanish versions
and each employee was given a manual in the language which he
or she understood.
who did not support IUE, freely communicated their views
on all and any subjects (it may be safely presumed their
communications included expressions of support for IUE rep-
resentation and vice versa; their wages, rates of pay, hours,
and working conditions; reports and rumors concerning IUE
and company propoganda, policies, and intentions; as well as
any other subject of mutual interest). Such communications
were not regulated by Respondent in any manner whatsoever.
4. Employees posted sales notices, notices of football
pools, and a unit employee/IUE supporter posted a document
pertaining to the first election on company bulletin boards
and on inside walls of the facility. Respondent did not regu-
late or prevent those postings.
5. A former supervisor and senior employee (Eliseo Gon-
zalez Sr.) circulated among employees during working time
in working areas, as well as during breaks and in nonwork-
ing areas, soliciting unit employee participation in sports bet-
ting pools, without censure or securing advance permission
therefor.
D. The Promulgation and Maintenance of New Rules or
Policies Preceding the Second Election
1. The promulgation
On April 1, 1991, during IUE’s second organizing cam-
paign prior to the second election, Respondent prepared and
distributed to each employee a document titled ‘‘Leather
Center Associate Manual.’’ The manual has been distributed
to each employee hired after April 1, 1991. The manual con-
tains a page, which each recipient was required to sign and
date, stating: ‘‘I have received the manual and I understand
that it is my responsibility to read and comply with the poli-
cies contained in this manual and any revisions made to it.’’
Following such execution, the page was removed from the
manual and placed in each employee’s personnel file.3
2. Pertinent provisions of the manual
The manual states:
Solicitation or distribution of literature by associates
is limited to the nonpublic areas of the building during
breaks.
Any Leather Center associate who desires to solicit
or distribute literature in the work place must receive
prior written permission from the Human Resources
Department . . . Failure to do so may result in discipli-
nary action up to and including discharge.
All posted items must be approved by the Human
Resources Department.
It is expected that associates will keep confidential
any Leather Center information to which they have ac-
cess. Examples of confidential information include:
. . . wages of other associates . . .
A rumor is defined as a ‘‘report of uncertain origin
and uncertain truthfulness.’’ Rumors at Leather Center
will not be tolerated. Disciplinary action will be taken
to those found generating or encouraging rumors.
Only an officer of Leather Center is to make any
comment to any member of the media. If you are ap-
proached by a member of the media for information,
you should refer the individual to an officer of Leather
Center.
Our Company is union free, and we intend to law-
fully remain this way. We believe your needs and ours
are best met by avoiding the addition of an outside
third party to come between us.
Leather Center will provide each February: . . . l
Leather Center cap . . . This attire must be worn dur-
ing all working hours.
Production Attire:
Caps (optional): Leather Center cap (black with
white lettering only).
Associates will not be allowed to work unless prop-
erly attired.
The following are examples of infractions of rules of
conduct that may result in disciplinary action, up to and
including discharge.
Violation of personnel policies.
Unsatisfactory . . . conduct.
Disclosure of confidential information.
Improper use of dress code.
Leather Center Associate Manual Acknowledgement
Form: I (acknowledge I) have received the manual, and
I understand that it is my responsibility to read and
comply with the policies contained in this manual and
any revisions made to it.
3. Maintenance and enforcement
The rules or policies recited above have remained in full
force and effect since their April 1, 1991 promulgation.
As a result, during the IUE campaign prior to the second
election:
1. Unit employees/IUE supporters have refrained from
identifying themselves as IUE supporters by complying with
the rule or policy requiring the securing of advance permis-
sion for soliciting other employees to support IUE and for
distributing IUE literature to other employees within Re-
spondent’s facilities during their breaks and before and after
work and refrained from engaging in such solicitations and
distributions.
2. Unit employees/IUE supporters have refrained from
identifying themselves as IUE supporters by complying with
the rule or policy requiring the securing of advance permis-
sion for posting any IUE material on bulletin boards or walls
and refrained from any such postings.
3. Unit employees have been barred from discussing their
and other employees’ wages at all times and places.
4. Unit employees have been barred from discussing ru-
mors at all times and places.
5. Unit employees have been barred from discussing Re-
spondent’s policies and actions with representatives of the
media at all times and places.
6. Unit employees have been required to promise in writ-
ing to comply with Respondent’s antiunion policy.
7. Unit employees have been barred from wearing IUE cap
insignia within the facility.
8. A unit employee who opposed IUE representation dur-
ing both campaigns, Eliseo Gonzalez Sr., during both cam-
paigns persisted, during working time as well as breaktime,
526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Brunswick Corp., 282 NLRB 794, 795 (1987). To similar effect,
St. Agnes Medical Center, 287 NLRB 242 (1987), affd. 871 F.2d
137 (D.C. Cir. 1989); Emergency One, 306 NLRB 800 (1992); Nor-
ris-O’Bannon, 307 NLRB 1236 (1992); Anderson Co., 305 NLRB
878 (1992); Soltech, Inc., 306 NLRB 269 (1992).
5 That Respondent so interprets and applies the rule or policy was
demonstrated by its denial of an IUE supporter’s request to distribute
material during his break and in a nonwork area.
in soliciting other employees to participate in betting pools
within the full view and participation by supervisory person-
nel, without securing any advance permission therefor.
9. A unit employee/IUE supporter was denied management
permission to distribute during a break-in a nonworking area.
10. A supervisor prepared and affixed approximately 50
notices announcing terms for the sale of his auto on walls
within the facility, without censure or prevention thereof by
management personnel.
11. A maintenance employee within the unit who was op-
posed to IUE representation moved about the plant perform-
ing his duties during working time while wearing one of the
brightly colored caps Respondent distributed prior to the first
election containing Respondent’s insignia, in full view of su-
pervisory personnel, without censure or prevention, while a
unit employee/IUE supporter was instructed by his supervisor
to remove a cap with IUE insignia when he donned that cap
after seeing the maintenance employee wearing the cap just
described.
12. The day before the second, September 20 election,
during working time, Eliseo Gonzalez Sr., in full view of su-
pervisory personnel and many employees, solicited unit em-
ployees at their work stations, on working time, to accept
and wear approximately 25 ‘‘VOTE NO’’ stickers, without
censure or prevention.
E. The Challenges
1. Eliseo Gonzalez Sr.
IUE contends at the time of the election Gonzalez was a
supervisor and/or an agent of Respondent within the meaning
of the Act and therefore ineligible to vote.
Gonzalez was hired by Respondent when it began busi-
ness, in 1982. He progressed to a supervisory position, but
since 1987 has been Respondent’s one and only
patternmaker, a classification clearly included within the unit.
While Gonzalez moved freely about the plant in the per-
formance of his duties (which were limited to making and
delivering patterns as needed) and was respected by other
employees due to his long-term, senior employee and former
supervisor status, the record fails to establish Gonzalez either
possessed or exercised the power on Respondent’s behalf to
hire, transfer, suspend, layoff, recall, promote, discharge, as-
sign, reward, or discipline other employees, or responsibly to
direct them, or to adjust their grievances, or effectively to
recommend such action.
Nor does the record establish Respondent authorized Gon-
zalez to act as its agent or ratified his acts after acquiring
knowledge thereof.
2. Maria Andrada, Genera Bautista, Refugio Merez,
and Martha Moya
The election officer challenged the ballots cast by
Andrada, Bautista, Merez, and Moya because their names
were not listed on the voter eligibility list provided by Re-
spondent.
Respondent did not list the names of the four because their
employment was terminated on June 21, 1991, prior to the
eligibility period for participation in the election (all four re-
ceived formal, written notice of that termination on June 21,
1991).
It was undisputed the four were terminated under a com-
pany rule or policy each employee, including the four, was
furnished by virtue of their receipt of the April 1, 1991 man-
ual, which states:
MEDICAL LEAVE
Eligible associates will be granted leave for the pe-
riod of the disability, up to a maximum of 84 calendar
days (12 weeks) per year. After 84 days of medical
leave, if you have not returned to work, your employ-
ment will be terminated.
It was undisputed the four had been off work in excess of
84 calendar days on medical leave at the time they were ter-
minated.
F. Conclusions
1. The alleged unfair labor practices
In Beth Israel Hospital v. NLRB, 487 U.S. 483, 491
(1978), the Supreme Court stated:
The right of employees to self-organization . . . nec-
essarily encompasses the right to communicate with one
another regarding self-organization at the jobsite (citing
Republic Aviation, 324 U.S. 793 (1945), and Central
Hardware Co., 407 U.S. 519 (1972)).
and in NLRB v. Babcock & Wilcox, 351 U.S. 105, 113
(1956), went on to say:
No restriction may be placed on the employees’ right
to discuss self-organization among themselves unless
the employer can demonstrate that a restriction is nec-
essary to maintain production or discipline (again citing
Republic Aviation, supra).
thus:
Any rule that requires employees to secure permission
from their employer as a precondition to engaging in
protected, concerted activity on a employee’s free time
and in nonwork areas is unlawful.4
The above-recited cases invalidate Respondent’s no-solici-
tation, no-distribution rule or policy, since the rule or policy
requires any employee to seek and secure employer permis-
sion prior to soliciting another employee to support IUE rep-
resentation of the unit employees or to distribute IUE mate-
rial to another employee ‘‘in the work place;’’ i.e., anywhere
within the plant and whether the would be solicitor or dis-
tributor and any employee he or she solicits or distributes to
is at work or on a break, and whether they are in a work
area or a nonwork area.5
Even absent the advance permission requirement, Re-
spondent’s promulgation, maintenance, and enforcement of
527LEATHER CENTER, INC.
6 Mack’s Supermarkets, 288 NLRB 1082 (1988); Hunter Douglas,
277 NLRB 1179 (1985), enfd. 804 F.2d 808 (3d Cir. 1986); Harry
M. Stevens, 277 NLRB 276 (1985), enfd. 793 F.2d 1288 (5th Cir.
1986).
7 Thomas Steel Corp., 297 NLRB 1025 (1990); Electronic Data
Systems, 278 NLRB 125 (1986); Premier Maintenance, 282 NLRB
10 (1986); Gencorp, 294 NLRB 717 (1989); Polynesian Hospitality
Tours, 297 NLRB 228 (1989); S. E. Nichols, 284 NLRB 556 (1987),
enfd. 862 F.2d 952 (2d Cir. 1988); Emergency One, supra; Pace-
setter Corp., 307 NLRB 514 (1992); Willamette Industries, 306
NLRB 1010 (1992). Also see Gonzales Packing Co., 304 NLRB 805
(1991).
8 Southwire Co., 277 NLRB 377 (1985), enfd. 801 F.2d 1252 (11th
Cir. 1986); Presser Industries, 278 NLRB 819 (1986); Connecticut
Color, 288 NLRB 699 (1988); St. Anthony’s Hospital, 292 NLRB
1304 (1989); Lassen Community Hospital, 278 NLRB 370 (1986);
Central Vermont Hospital, 288 NLRB 514 (1988); Springfield Jew-
ish Nursing Home, 292 NLRB 1266 (1989); Best Lock, 305 NLRB
648 (1992); Bon Marche, 308 NLRB 184 (1992).
9 Independent Stations, 284 NLRB 394 (1987); Heck’s, Inc., 293
NLRB 1111 (1989); Elston Electronics Corp., 292 NLRB 510
(1989); Apparatus Service, 296 NLRB 589 (1989); Super One
Foods, 294 NLRB 462 (1989), enfd. 919 F.2d 359 (5th Cir. 1990);
Vanguard Tours, 300 NLRB 250 (1990), enfd. 981 F.2d 62 (2d Cir.
1992); Sweetwater Crafts, 300 NLRB 18 (1990); Highland Super-
stores, 301 NLRB 199 (1991); Automatic Screw Products, 306
NLRB 1072 (1992); Willamette Industries, supra; Mast Advertising
& Publishing, 304 NLRB 819 (1992).
the rule or policy is suspect, since solicitations and distribu-
tions by IUE supporters were not regulated during the first
IUE campaign preceding the first election but were placed in
effect during the second IUE campaign and prior to the sec-
ond election, for the obvious purpose of inhibiting the
employees’s self-organization efforts.
The Board has consistently held the promulgation, mainte-
nance, and enforcement of such a rule or policy for that pur-
pose is unlawful,6 particularly where, as here, the rule or pol-
icy was disparately enforced by permitting Gonzalez Sr. to
solicit numerous employees in full view of other employees
and supervisors to wear the ‘‘Vote No’’ stickers he was dis-
tributing the day before the election.7
On the basis of the foregoing, I conclude by promulgating
its April 1, 1991 no-solicitation, no-distribution rule or policy
and maintaining that rule or policy in full force and effect
during IUE’s second campaign prior to the second election
and disparately enforcing that rule or policy, Respondent vio-
lated Section 8(a)(1) of the Act.
The same considerations apply to Respondent’s rule or
policy requiring employees to secure Respondent’s permis-
sion prior to posting any material within the plant.
During the first IUE campaign and prior to the first elec-
tion, employees posted for sale announcements, an IUE-pre-
pared document and other material within the plant without
interference; during the IUE’s second campaign and prior to
the second election, Respondent required employees to se-
cure its permission for any postings, but made no effort to
prevent a supervisor’s posting of a sale announcement.
The cases are legion wherein the Board has held the pro-
mulgation, maintenance and enforcement of such a rule or
policy is violative of the Act.8
As Judge Taplitz stated in the Lassen case, supra:
The practice was for the employees to post whatever
they saw fit and there were no restrictions placed on the
postings.
. . . .
[then] Respondent issued a new employee handbook
which changed the rules with regard to bulletin boards
and provided that all material for posting had to be ap-
proved by the administrator. . . . The rule was not uni-
formly followed.
. . . .
Respondent began enforcing its rule that notices had
to have prior approval within months after the union
began an organizational drive.
. . . .
Respondent’s reactivation, maintenance and enforce-
ment of its rule requiring prior approval of employee
notices for posting on bulletin boards could be reason-
ably said to interfere with the free exercise of employee
rights under the Act.
. . . .
Respondent failed to substantiate its claim that there
was a legitimate business need for its rule requiring
prior approval of employee notices.
In Peck, Inc., 269 NLRB 451, 458 (1984), the Board
adopted the finding of an administrative law judge that an
employer revealed its motive was to discourage union activ-
ity by requiring prior approval for employee notices on a
bulletin board, when there was no demonstration of a legiti-
mate business reason for the rule. For other cases where
‘‘prior approval’’ rules were found to be invalid, see
Predicasts, Inc., 270 NLRB 1117 (1984); G. H. Bass & Co.,
258 NLRB 140 (1981).
The facts in this case are practically identical. Respondent
permitted employee postings prior to and during the first
election campaign but, faced with a second campaign and
election, required employees to secure permission for any
postings in the second election, enabling it to anticipate and
prevent any pro-IUE postings, meanwhile making no attempt
to bar a posting having no union connotations.
I conclude, on the basis of those facts and the cases cited
above, Respondent violated Section 8(a)(1) of the Act by
promulgating, maintaining, and enforcing its rule or policy
requiring that employees secure its permission prior to post-
ing any material in the plant.
Respondent’s rule or policy barring employees from any
discussion of wages is a general bar restricted neither in time
nor place.
Such a bar is unlawful. As the Board stated in Waco, Inc.,
273 NLRB 746 (1984):
There can be little question that the Respondent’s rule
prohibiting employees from discussing their wages con-
stitutes a clear restraint on employees’ Section 7 right
to engage in concerted activities for mutual aid and pro-
tection concerning an undeniably significant term of
employment.
That principle has been uniformly applied, in Waco and
subsequent decisions, all concluding any employer attempt to
restrict its employees’ discussion of their and other employ-
ees wages violates Section 8(a)(1) of the Act.9
On the basis of the foregoing, I conclude Respondent vio-
lated Section 8(a)(1) of the Act by promulgating and main-
528 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 American Cast Iron Pipe Co., 234 NLRB 1126 (1978), enfd.
600 F.2d 132 (8th Cir. 1979); Radisson Muehleback Hotel, 273
NLRB 1464 (1985); Independent Stations, 284 NLRB 395 (1987);
Josten Concrete Products, 295 NLRB 1029 (1989); Southern Mary-
land Hospital, 293 NLRB 1209 (1989), enfd. 916 F.2d 932 (4th Cir.
1990); Advo Systems, 297 NLRB 926 (1990); 88 Transit Lines, 300
NLRB 177 (1990).
11 Auto Workers Local 980, 280 NLRB 1378 (1986), enfd. 819
F.2d 1134 (3d Cir. 1987); Kinder Care Learning Centers, 299
NLRB 1171 (1990); Communications Workers Local 9509, 303
NLRB 264 (1991).
taining its rule or policy prohibiting employees from engag-
ing in any discussion of their and other employees’ wages.
Turning next to the company rule or policy prohibiting
employees from generating and/or encouraging rumors, again
the rule or policy has general applicability, i.e., it bars such
discussions at any time at any location, under threat of dis-
cipline.
It is a fact of life, particularly in the context of an organiz-
ing campaign, that rumors concerning anticipated or feared
employer reactions, rumors concerning union tactics and
practices, rumors concerning the reactions of management
personnel, etc., spread throughout a plant, through word of
mouth. Some may prove to be true predictions of subsequent
actions or events, some may not.
While an employer may restrict employee communications
during their worktime in work areas in the interests of main-
taining production or discipline, provided such restrictions
are not, as here, imposed to restrict employee communica-
tions concerning union representation, their working condi-
tions, etc., after a previous policy of permitting unlimited
communication, an employer has no legitimate grounds for
restricting employee communication on any subject, during
their nonworking time in nonworking areas and outside, on
their own free time and certainly Respondent failed to dem-
onstrate any basis for the imposition of such a restriction on
its employees. Rather, it appears the restriction was enacted
to intimidate and restrain its employees in the exercise of
their right to exercise their Section 7 right to speculate and
to discuss issues and concerns which arose during the second
IUE campaign preceding the second election.
The issue is not novel; the Board has had several cases be-
fore it in which employers sought to restrict their employees’
communications during campaigns preceding representation
elections, and has adopted the general principle the promul-
gation, maintenance, and enforcement of such restrictions,
which clearly could encompass discussions of rumors ema-
nating from employer or union propoganda, statements by
employer and union representatives, etc., unduly restrict em-
ployees in the exercise of their right to self-organization and
are violative of the Act.10
As the Board stated in Independent Stations, id. at 396–
397:
Section 7 protects merely inaccurate employee state-
ments. The rule runs afoul of the fact that these false
statements may well relate to concerted activities. Thus,
the rule violates Section 8(a)(1) of the Act.
What Respondent defines as ‘‘rumors’’ almost certainly
involve employee discussions of matters of vital concern to
them during a campaign preceding a representation election,
as here.
I thus conclude by promulgating and maintaining in full
force and effect its prohibition of employee discussion of ru-
mors during the second IUE campaign preceding the second
election, Respondent violated Section 8(a)(1) of the Act.
Respondent’s attempted prohibition of any employee dis-
cussion of Respondent’s policies and practices with any rep-
resentative of the media constitutes another unlawful Re-
spondent attempt to restrict IUE supporters among the unit
employees from going public with what they perceived to be
shortcomings in Respondent’s treatment of its employees,
warranting their seeking union representation, protection, and
aid in rectifying those perceived shortcomings and their at-
tempted enlistment of media support to accomplish their
goals.
The Board has consistently held employees have a right
under Section 7 of the Act to convey their complaints or
grievances against their employers to representatives of the
media as well as other third parties, in an effort to secure
favorable coverage and/or aid and support.11
As the Board stated in Kinder Care, id. at 1171 and 1172:
Under Section 7 of the Act, employees have the right
to engage in activity for their ‘‘mutual aid or protec-
tion,’’ including communications . . . directed to other
employees, an employer’s customers, its advertisers, its
parent company, a news reporter, and the public in gen-
eral.
On the basis of the foregoing, I conclude Respondent vio-
lated Section 8(a)(1) of the Act by promulgating and main-
taining in full force and effect its rule or policy prohibiting
employees from discussing Respondent and its policies and
procedures with representatives of the media.
With respect to the requirement unit employees support
Respondent in its opposition to union representation of its
employees, Respondent’s expression of its antiunion policy is
set forth in clear and unmistakeable terms; i.e., the applicable
provision in its employee manual is headed ‘‘Union Free
Employee Relations’’ and goes on to state Respondent was
currently union free and intended to remain that way, since
it believed its needs and those of the unit employees were
best served by avoiding having to deal with the unit
employees’s wants and desires concerning their rates of pay,
wages, hours, and working conditions through a collective-
bargaining representative of the employees’ choosing.
The manual also clearly states any employee who violates
Respondent’s personnel policies and any employee whose
conduct is deemed ‘‘unsatisfactory’’ by Respondent, is sub-
ject to discipline, including discharge.
The manual also requires each unit employee to acknowl-
edge receipt of the manual and to promise to comply with
the policies set out therein. His or her signed agreement is
then detached from the manual and made part of his or her
personnel file.
As the Board stated in Heck’s, Inc., 293 NLRB 1111,
1120 (1989):
In essence, employees are ‘‘requested’’ to promise in
writing to be bound by, inter alia, the Respondent’s
antiunion policy; these written promises are made a
529LEATHER CENTER, INC.
matter of record in the employees’ personnel files; and
employees could reasonably assume that they are sub-
ject to discipline culminating in discharge for violating
the Respondent’s antiunion policy. We find that the Re-
spondent’s conduct in this regard has an inherent and
direct tendency to interfere with, restrain and coerce
employees in the exercise of their rights under Section
7 of the Act to form, join or assist labor organizations,
to bargain collectively through representatives of their
own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection. The Employer has effectively
asked its employees to promise in writing not to engage
in any of these protected Section 7 activities and has
warned them that they will be disciplined if they do so.
We conclude that the Respondent has violated Section
8(a)(1) of the Act.
For additional authority to the same effect, see the cases
cited in Heck’s, Inc., supra at 1120 fn. 14.
On the basis of the foregoing, I conclude Respondent vio-
lated Section 8(a)(1) of the Act by promulgating and main-
taining in full force and effect its rule or policy requiring
unit employees to promise to comply with its antiunion rule
or policy.
As to the cap rule or policy, while during the first IUE
campaign preceding the first election, Respondent issued
caps to employees who supported its antiunion policy bear-
ing Respondent’s insignia and IUE issued caps with IUE in-
signia to employees who supported IUE representation and
both the IUE supporters and the Respondent supporters wore
those caps while at work, prior to the second IUE campaign
and the second election Respondent prohibited the wearing of
any cap other than one bearing Respondent’s insignia and
disparately enforced that policy thereafter, requiring an IUE
supporter to remove his cap containing IUE insignia while
permitting another employee to wear the same cap Respond-
ent distributed to its supporters prior to the first election.
The wearing of union insignia while at work to express
employee solidarity has long been recognized as an exercise
of employee rights under Section 7 of the Act (Republic
Aviation Corp. v. NLRB, 324 U.S. 793 (1945)), subject to
employer limitation or ban only when the employer can show
by substantial evidence wearing of the insignia in question
affected production or was necessary to maintain discipline
(NLRB v. Malta Construction Co., 806 F.2d 1009 (11th Cir.
1986)).
An employer effort to limit or ban the wearing of such in-
signia, including a cap bearing union insignia, is particularly
suspect when the employer institutes a ban on the wearing
of union caps during a union organizing campaign, reversing
a former policy of permitting the wearing of caps bearing
various insignia, such as those of football or baseball teams,
etc. (Sears, Roebuck & Co., 305 NLRB 193 (1991)), or the
enactment and maintenance of a rule limiting employees to
the wearing of uniforms containing employer insignia when
faced with a union campaign to organize the employees
(Pepsi Cola Bottling Co., 301 NLRB 1008 (1991)).
To similar effect, NLRB v. Malta Construction Co., supra;
Mack’s Supermarkets, 288 NLRB 1082 (1988); Control Serv-
ices, 303 NLRB 481 (1991); Highland Superstores, 301
NLRB 199 (1991); Ideal Macaroni, 301 NLRB 507 (1991);
Christie Electric Co., 284 NLRB 740 (1987); Machinery Re-
builders, 248 NLRB 881 (1980).
Under the circumstances here, the ban on the wearing of
IUE caps through limiting employees to wearing Respond-
ent’s caps followed a period in which both IUE and Re-
spondent’s were worn and while an IUE organizing cam-
paign was underway, coupled with disparate enforcement of
the ban, were obviously designed to limit employees who de-
sired to do so from expressing their union solidarity while
promoting the continued expression of company support by
the wearing of Respondent’s cap. Since the wearing of caps
was optional, this meant any employee who wanted to wear
a cap could only wear a company cap during the second IUE
campaign preceding the second election and IUE supporters
during the second campaign could not, as during the first
campaign, express union solidarity by wearing an IUE cap,
while employees who opposed IUE representation could ex-
press their support for Respondent’s antiunion policy by
wearing a company cap.
On the basis of the foregoing, I find and conclude Re-
spondent violated Section 8(a)(1) of the Act by promulgat-
ing, maintaining, and enforcing a rule or policy limiting cap
wearers to the wearing of a cap containing Respondent’s in-
signia and disparately enforcing its ban on the wearing of a
cap containing IUE insignia.
2. The election objections
I have entered findings and conclusions Respondent vio-
lated Section 8(a)(1) of the Act prior to the second election
by promulgating, maintaining, and enforcing rules or policies
barring unit employees from soliciting other employees, ei-
ther on worktime in work areas or in nonwork areas on non-
working time, without Respondent’s permission and from
distributing literature under either circumstance without Re-
spondent’s permission, and by its disparate enforcement
thereof.
I have also entered findings and conclusions Respondent
violated Section 8(a)(1) of the Act prior to the second elec-
tion by promulgating, maintaining, and a rule or policy re-
quiring employees who desired to wear caps within the plant
to wear caps containing Respondent’s insignia, permitting a
nonsupporter of IUE to wear a cap with Respondent’s insig-
nia which nonsupporters of IUE received from Respondent
and wore during the first election campaign prior to the first
election, while barring IUE supporters from wearing the caps
they wore during the first election campaign prior to the first
election with IUE insignia.
The two IUE election objections are based on Respond-
ent’s disparate enforcement of the rules just cited; i.e., per-
mitting Eliseo Gonzalez to solicit employees to vote against
IUE representation and to wear ‘‘Vote No’’ stickers during
working time within working areas while barring such con-
duct by IUE supporters and by encouraging and permitting
employees to wear caps containing Respondent’s insignia
while barring employees from wearing caps containing IUE
insignia.
I thus find merit in both of the IUE objections and con-
clude by that conduct, as well as the other unfair labor prac-
tices set out in the preceding section, Respondent prevented
a free and fair election on September 20.
530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3. The ballot challenges
I have entered findings and conclusions that Gonzalez Sr.
was neither a supervisor nor an agent of Respondent acting
on its behalf within the meaning of Section 2 of the Act on
September 20 and that Andrada, Bautista, Merez, and Moya
were not employees of Respondent on September 20. On the
basis of those findings and conclusions, plus the resolution
of the balance of the 15 challenges during the hearing by
agreement of the parties, I normally would recommend the
ballots of Acy, Aarrendondo, Espanioza, Garcia, Gonzalez
Sr., Haig, Sanchez, Torres, and Vega be opened and counted
and the ballots cast by Andrada, Bautista, Merez, Mora,
Moya, and Setz be rejected, a revised tally of ballots and an
appropriate certification issued.
In this case, however, I have entered findings and conclu-
sions Respondent committed unfair labor practices prior to
the election which prevented a free and fair election.
I therefore recommend instead the September 20 election
be set aside and a new election conducted when, in the judg-
ment of the Regional Director for Region 16, the effects of
the unfair labor practices have been dissipated. As the Board
stated in Video Tape Co., 288 NLRB 646, 665 (1989):
Respondent’s unfair labor practices, which occurred
during the critical period between the filing of the peti-
tion and the election, sufficiently interfered with the
employees’ freedom of choice to select a bargaining
representative to require setting aside the election.
To similar effect, Pentre Electric, 305 NLRB 882 (1991).
CONCLUSIONS OF LAW
1. At all pertinent times Respondent was an employer en-
gaged in commerce in a business affecting commerce within
the meaning of Section 2 of the Act.
2. A unit consisting of all production and maintenance em-
ployees, including wood shop, leather shop, shipping, receiv-
ing, pattern cutting and research and development depart-
ments and customer service employees employed by Re-
spondent at its Carrollton, Texas facilities, excluding all
other employees, professional employees, confidential em-
ployees, office employees, truckdrivers, guards and super-
visors as defined in the Act, at all pertinent times constituted
an appropriate unit for collective-bargaining purposes within
the meaning of Section 9 of the Act.
3. Respondent violated Section 8(a)(1) of the Act and pre-
vented a free and fair election on September 20 by promul-
gating, maintaining, and enforcing the following rules or
policies during the second IUE campaign prior to the Sep-
tember 20 election:
(a) Requiring unit employees to secure Respondent’s per-
mission prior to soliciting other employees or distributing lit-
erature to other employees.
(b) Requiring unit employees to secure Respondent’s per-
mission prior to posting literature within the plant.
(c) Prohibiting unit employees from discussing their and
other employees’ wages.
(d) Prohibiting unit employees from generating or encour-
aging rumors.
(e) Prohibiting unit employees from discussing with rep-
resentatives of the media any information about Respondent,
its policies and practices.
(f) Requiring unit employees to promise to comply with
Respondent’s antiunion policy.
(g) Barring employees who chose to wear caps within the
plant from wearing caps bearing IUE insignia.
4. Respondent violated Section 8(a)(1) of the Act and pre-
vented a free and fair election on September 20 by its dispar-
ate enforcement of its rules or policies regarding employee
solicitations of employees, employee distribution of lit-
erature, employee postings within the plant, and wearing of
caps.
5. On September 20 Eliseo Gonzalez Sr. neither was a su-
pervisor nor an agent of Respondent acting on its behalf
within the meaning of Section 2 of the Act.
6. On September 20 Maria Andrada, Genera Bautista,
Refugio Merez, and Martha Moya were not Respondent em-
ployees.
7. The aforesaid unfair labor practices and prevention of
a free and fair election affected commerce as defined in Sec-
tion 2 of the Act.
THE REMEDY
Having found Respondent engaged in unfair labor prac-
tices, I recommend Respondent be directed to cease and de-
sist therefrom and to take affirmative actions designed to ef-
fectuate the policies of the Act.
Having found Respondent violated the Act by promulgat-
ing, maintaining, and enforcing rules or policies which inter-
fered with, restrained, and coerced unit employees in the ex-
ercise of their rights under Section 7 of the Act, I rec-
ommend Respondent be directed to rescind its rules or poli-
cies requiring unit employees to secure its permission prior
to soliciting other employees, distributing literature to other
employees and posting literature within the plant, barring its
unit employees from discussing with other employees their
and other employees’ wages, barring employees from gener-
ating or encouraging rumors, barring unit employees from
discussing with representatives of the media Respondent’s
policies and practices, barring unit employees who wish to
wear caps within the plant from wearing any caps other than
caps distributed by Respondent bearing Respondent’s insig-
nia, and requiring its employees to promise in writing to sup-
port Respondent’s antiunion policy.
I further recommend Respondent be directed to notify em-
ployees who have signed a statement promising to comply
with Respondent’s antiunion policy they are not required to
comply with that policy and that Respondent be directed to
enforce its rules or policies with respect to unit employees
who support the IUE or any other labor organization in the
same manner it enforces those rules or policies with respect
to unit employees who do not support the IUE or any other
labor organization.
I further recommend the September 20 election be set
aside and the Regional Director for Region 16 be directed to
conduct a new election when, in his judgment, the effects of
the aforesaid unfair labor practices have been dissipated.
[Recommended Order omitted from publication.]