La Quinta Motor Inns, Inc

LA QUINTA MOTOR INNS 57 La Quinta Motor Inns, Inc and Culinary Cooks, Bartenders, Hotel, Motel Service Workers, Local 62, a/w Hotel Employees and Restaurant Employees and Bartenders International Union, AFL-CIO Case 32-CA-7944 February 28, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On May 28, 1987, Administrative Law Judge Joan Wieder issued the attached decision The Re- spondent filed exceptions and a supporting brief' and the General Counsel filed cross-exceptions and a brief in support The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to modify the recommended Order We agree with the judge's finding that the Re- spondent's requirement that its employees promise in wnting to abide by the Respondent's nonunion policy violated Section 8(a)(1) of the Act As a result, we shall require the Respondent to rescind the policy contained in its handbook that requires employees to promise to abide by the Respondent's policy that it does not want its employees to be represented by a union We will also require that all previously signed "Employee's Acceptances" presently in Respondent's employee files be re- moved The General Counsel has excepted to the judge's failure to provide that the notice be printed in Spanish as well as English As 6 to 7 percent of the Respondent's employees are Spanish speaking, and as the Respondent printed the employee handbook in Spanish, we find ment to the General Counsel's exception and will require that the notice be print- ed in Spanish and English Fresno, California, its officers, agents, successors, and assigns, shall l Cease and desist from (a) Coercively including in the La Quinta Motor Inns, Inc employee handbook provisions that rea sonably tend to threaten discharge if employees fail to adhere to the Company's position of not having any union represent its employees (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their rights to engage in or refrain from engaging in any or all the activities specified in Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Rescind its policy requiring employees to promise to abide by the policy of the Respondent that it does not want its employees to be represent- ed by a union (b) Remove from its files any previously signed "Employee's Acceptances" in which employees agree to be bound by the present "Company Posi tion on Labor Unions " (c) Post at all of its places of business copies of the attached notice marked "Appendix "3 Copies of the notice, in both Spanish and English, on forms provided by the Regional Director for Region 32, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and main tamed for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 3 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 Nation al 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 ORDER The National Labor Relations Board orders that the Respondent, La Quinta Motor Inns, Inc, i The Respondent also filed a motion to correct its brief in support of its exceptions to the decision of the administrative law judge There was no opposition filed and the motion is granted 2 The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 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 the we violated the National Labor Relations Act and has ordered us to post and abide by this notice 293 NLRB No 6 58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT do anything that interferes with, restrains, or coerces you with respect to these rights More specifically, WE WILL NOT coercively include in the La Quinta Motor Inns, Inc employee handbook provi- sions entitled "Company Position on Labor Unions" and "Employee's Acceptance," which to gether reasonably tend to threaten discharge if em- ployees fail to adhere to the Company's position of not having any union represent its employees by engaging in activities on behalf of a union WE WILL rescind our policy requiring employees to promise to abide by our policy that we do not want our employees to be represented by a union WE WILL remove from the files of all employees, any "Employee's Acceptances" signed by employ- ees in which they agree to be bound by the present "Company position on Labor Unions " WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights to engage in or refrain from engaging in any or all the activities specified in Section 7 of the Act LA QUINTA MOTOR INNS, INC Elaine D Climpson Esq, for the General Counsel John A Ferguson Jr and Leslie Selig Byrd Esgs. (Mat thews & Branscomb) and Richard M Byrd Esq for the Respondent DECISION STATEMENT OF THE CASE JOAN WIEDER Administrative Law Judge This case was heard by me on 2 April 19871 at Oakland Califor nia The charge was filed on 7 April and amended on 30 June by Culinary Cooks, Bartenders, Hotel, Motel Serv ice Workers, Local 62, a/w Hotel Employees and Res taurant Employees and Bartenders International Union AFL-CIO (the Union) This amended charge resulted in the issuance of a complaint on 30 June, as amended The amended complaint alleges that La Quanta Motor Inns Inc (Respondent or Company) maintained a statement in its Employee Handbook which under the prevailing circumstances, created the impression that as a term of employment, employees must agree not to engage in ac i All dates are in 1986 unless otherwise stated tivities in support of a labor organization in violation of Section 8(a)(1) of the National Labor Relations Act The Respondent, in its answer to the complaint, con ceded, inter alia that it meets one of the Board s jurisdic tional standards,2 but denies committing any unfair labor practices In particular, Respondent asserts that the state ment in the handbook is protected under Section 8(c) of the Act On the entire record,3 including my observation of the witnesses, and after careful consideration of the posttrial briefs, I make the following FINDINGS OF FACT I JURISDICTION Respondent admitted and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act It is further admitted and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background There is very little controversy about the facts in this case Respondent is a Texas corporation that operates under three names La Quinta Motor Inns, Ramada, and Roadway 4 Currently Respondent operates about 180 motor inns in 29 States and has about 5247 employees, 4500 excluding management The motor inns are about the same size, averaging 25 employees including desk staff, front desk sales representatives, maintenance em ployees and laundry and housekeeping staffs The Com pany s corporate headquarters are in San Antonio, Texas Almost all the inns are managed by husband and wife teams These managers interview job applicants The Company has no minimum educational requirements for job applicants nor is prior experience a formal criterion for employment However because of their job duties Respondent prefers job applicants for the position of housekeeper to have prior experience because they over see room attendants Desk clerks meet the public and work minicomputer systems so Respondent generally requires successful job applicants for this position to demonstrate interpersonal managerial and clerical skills Usually the manager does not review with the prospec Live employee the terms and conditions of employment Rather, they try to ascertain the applicants background to determine if they should be hired All the Company s personnel functions are adminis tered by Michael Nosil, vice president of personnel Nosil has held this position at all relevant times In 1979, Respondent developed and distributed to all employees 2 Based on this admission I find Respondent is an employer within the meaning of Sec 2(2) of the Act engaged in commerce within the mean ing of Sec 2(6) and (7) of the Act 3 General Counsels unopposed motion to correct the record has ment and is hereby granted * Respondent also operates one small facility in Houston Texas called the Royal Inn LA QUINTA MOTOR INNS an employee handbook 5 The handbook was printed in both English and Spanish Spanish is the first language for about 6 to 7 percent of the Company s employees Respondent distributed a third version of the employee handbook to its employees at corporate and regional headquarters There are about 11 regional headquarters In 1983, under Nosil s direction, the employee hand book was revised As here pertinent, Respondent added two sections to the handbook The first addition was en titled "Company Position on Labor Unions This sub section was added to that section of the handbook enti tled Other Policies" and provides as follows La Quetta s position on labor unions is something you should know We are proud of our record of close relations with our employees In all the years of operation of this company, there has never been interference from outside unions in Company/ employee relationships Each year this Company, working through its employees, has endeavored to improve working conditions maintain a high qual ity of supervision, and increase employee benefits and take home pay We are dedicated to continuous growth and to safeguard and improve the welfare of our employees It is our belief that direct interaction between our employees and management is essential for the con tinued maintenance of good employee relations We are committed to protect the personal rights and in dependence of our employees from outside interfer ence from any union or agent According to Nosil, this statement was included in the Employee Handbook for one of the changes we wanted to make was a uh, a communication to our employees, uh as to uh, our open door policy that we wanted a one on one relationship We felt it was best to work directly with our employees, and that generated the statement which was the company position Nosil testified that the managers do not receive specific training or in structions regarding this section of the handbook The second addition to the handbook is entitled Em ployee s Acceptance This section provides, as follows I have received the booklet entitled La Quints Motor Inns Inc Employee Handbook and I agree to abide by the policies and procedures contained herein I under stand that the continuance of my employment is contin gent on my so abiding by these rules Signature of Employee Date The Employee's Acceptance is on a page that is perfo rated to facilitate its removal 5 Respondent has three documents referred to as the employee hand book herein One is the La Quetta Motor Inns Employee Handbook which is only distributed to employees at the motor inns a slightly differ ent handbook is distributed to all employees at the Company s corporate headquarters and regional offices This latter handbook contains several additional sections The third handbook is a Spanish version of the La Quinta Motor Inns Employee Handbook Any differences in the hand books do not alter the conclusions reached herein 59 According to Nosil, this section was added to the handbook because, during a meeting with employees questions were asked indicating at least some employees had not received the handbook, so the Company wanted documentation it was received by every employee The Company distributed the revised English version and headquarters copies to all employees in 1983 The re vised Spanish version was distributed in 1984 All cur rent employees were to execute the Employees Ac ceptance' which was then removed from the handbook and placed in their individual personnel files As part of Respondent's quality control and internal audit proce dures each personnel file is checked to insure the Em ployee s Acceptance was executed by all employees and included in their dossiers Handbooks are only given to employees not to applicants for employment There is no evidence that these two sections were de vised in response to forthcoming or current union orga nizing campaigns Since 1983, there were only two union organizing drives at any of Respondents facilities Both drives were mounted in 1983, one at New Orleans, Lou isiana, and the other at Metairie, Louisiana New hires are given their copies of the employee handbook when they report for work, along with W-4 forms and any required uniforms During management training programs and in the Company's Personnel Poli cies and Procedures Manual, managers are instructed to give a copy of the handbook to new hires during the initial sign in (when an employee signs W-4 informa tion) Since the handbook summarizes policies applicable to motor inn employees the manager should be available to answer any questions the new employee may have concerning the policies contained in the handbook The manager is to have the employees execute the ac ceptance at the initial sign in Nosil who admittedly had very limited experience signing in new employees, testi fled that during the few times he observed the procedure there was little or no opportunity for the new hires to read the Employee's Acceptance at this time, and no opportunity for them to read the handbook prior to their executing the acceptance The managers are not instruct ed to review the handbook with the employees at sign in but are to make themselves available for any ques tions Respondent has no written instructions regarding how managers are to respond to specific questions No managers testified and there is no evidence concerning individual managers practices when employees sign the acceptance The Company Position on Labor Unions is the pe nultimate item in each handbook and the Employee s Acceptance" is the final item Respondent by Nosil, states these positions in the handbook were not chosen for a particular reason rather, they were additions so they were placed at the end The other changes to the handbook were not shown to be new items The juxtapo sition of these two additional items differs in the three versions of the handbook In the English version distrib uted to motor inn employees, the Company Position on Labor Unions" is the only material on the page opposite the Employee's Acceptance form The Spanish version of this handbook also has the Company Position" on 60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the page opposite the Employees Acceptance but it is not the only material on the page In the headquarters regional office version of the handbooks the Company Position is at the bottom of page 25 page 26 is blank and page 27 has the Employee s Acceptance form Nosil testified the handbook is given to employees as a resource to determine their work rules and any violation of the rules set forth in the handbook would be subject to disciplinary action, which could include discharge The handbook has a half page section entitled Rules of Conduct The handbook is divided into three general areas general personnel policies pay and benefits, and other policies At the end of the general personnel poll cies section is the subsection entitled Rules of Conduct which states that violation of any of the 12 listed rules will be cause for discipline and may be cause for immedi ate discharge 7 The Company Position on Labor Unions and the Employees Acceptance are in the section entitled Other Policies, which includes such items as hours of work, timekeeping attendance and punctuality, the Company s no solicitation rule person nel data, accidents, meal breaks, overtime, and other policies Only the no solicitation policy contains any ref erence to disciplinary action in this section, in addition to the reference in the Employees Acceptance Although managers are instructed to have all employ ees execute the Employees Acceptance and place them in their personnel files, Nosil testified that the man agers are not instructed what to do if an employee re fuses to execute the form To his knowledge the issue of an employee refusing to sign the form has never arisen He states that Respondent has no internal personnel pole cies which instruct or require managers to discipline em ployees who refuse to sign the form or express disagree ment with the Company Position on Labor Unions Nosil s testimony was contradicted in part by a re sponse written by Respondent s senior corporate attor ney Michael Byrd to a Board agent Alan Nagata dated 7 May This response provides as follows La Quinta s employment policy is contained on page 4 of the Motor Inn Employee Handbook Nei ther applicants nor individuals considered for hire are given copies of the Motor Inn Employee Hand book The Motor Inn Employee Handbook constitutes a form of orientation and is given to each new em ployee shortly after being hired The Employee s Acceptance consists of a stub on the last page of the Employee Handbook which is torn out and in serted in the employees personnel file To the best of La Quinta s knowledge no employee has ever re fused to sign the Employees Acceptance stub An employees refusal to sign the Employees Ac ceptance stub would constitute grounds for termi nation 6 There is no Spamnh version of the headquarters handbook The parties stipulated there is no reason to believe the Spanish ver lion of the handbook is any different from the English version or that if there are any differences they would have an impact on this proceeding Based on this stipulation I find that there are no demonstrated differences in the Spanish version that would alter any conclusions rea,hed in this proceeding In his testimony, Byrd tried to explain the discrepancy between this statement and Nosil s testimony by claiming the letter was in reply to the Board agents letter and two telephone inquiries that clouded the apparent clear meaning of his reply Based on demeanor and inherent probabilities, this explanation is found to be unconvinc ing There was no specific reason advanced that would explain why the Board agent s inquiries changed or al tered the clear meaning of the last sentence quoted above Equally unconvincing is Byrd s statement that the quoted portion of the letter was speculative At the very least, Byrd s letter is a statement of the Company s pose tion as he understood it in his role as senior corporate attorney and Respondents representative in responding to the Board agent s inquiries B Analysis and Conclusions Section 8(a)(1) of the Act prohibits an employer from interfering with threatening, or coercing employees in the exercise of their Section 7 rights to support or oppose a labor organization, or to engage in or refrain from engaging in concerted activity This prohibition is counterbalanced by the provisions of Section 8(c) of the Act which states Expressing any views argument or opinion, or the dissemination thereof, whether in written, printed graphic, or visual form shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act if such expression con tains no threat of reprisal or force or promise of benefit The Supreme Court in NLRB v Gissel Packing Co, 395 U S 575, 617-619 (1969) balances the requirements of the two above stated sections of the Act as follows Any assessment of the precise scope of employer expression of course must be made in the context of its labor relations setting Thus an employer s rights cannot outweigh the equal rights of the em ployees to associate freely as those rights are em bodied in Section 7 and protected by Section 8(a)(1) and the proviso to Section 8(c) And any balancing of those rights must take into account the economic dependence of the employees on their employers and the necessary tendency of the former, because of that relationship to pick up intended implications of the latter that might be more readily dismissed by a more disinterested ear [An employer] may even make a prediction as to the precise effect he believes unionization will have on his company In such a case, however the pre diction must be carefully phrased on the basis of ob jective fact to convey an employer's belief as to de monstrably probable consequences beyond his con trol or to convey a management decision already arrived at to close the plant in case of unionization See Textile Workers v Darlington Mfg Co 380 U S 263, 274 fn 20 (1965) If there is any implication that an employer may or may not take actions solely on his own initiative for reasons unrelated to LA QUINTA MOTOR INNS economic necessities and known only to him the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion and as such without the protection of the First Amendment We there fore agree with the court below that [c]onveyance of the employers belief, even though sincere that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, eventuality of closing is capable of proof 397 F 2d 157, 160 As stated elsewhere, an employer is free only to tell what he reasonably believes will be the likely economic consequences of unionization that are outside his control, and not threats of economic reprisals to be taken solely on his own volition NL R B v River Togs Inc 382 F 2d 198, 202 (C A 2, 1967) Thus, Respondents Position on Labor Unions and Employee's Acceptance are only a violation of Section 8(a)(1) of the Act where they constitute a threat to re taliate against employees for engaging in concerted pro tected activity I find that, in the circumstances of this case, the employees rights are not in equipoise with the employers rights and that Respondent has unlawfully shifted the balance in violation of the Act The Company Position on Labor Unions clearly re lates Respondents commitment to avoid interference from any union or agent This position is placed im mediately before the Employees Acceptance which each employee must execute, and new hires must sign as one of the first acts they perform on their first day of employment This acceptance requires the employee to agree to the policies and procedures contained in the employee handbook and failure to do so is clearly under threat of loss of employment The reference to discipline is not clearly or specifically limited to the Company s Rules of Conduct but includes policies and proce dures Policy is defined in Webster s New World Dic tionary, Second College Edition, The World Publishing Company, New York and Cleveland 1972, as here perti nent, as 2 wise, expedient, or prudent conduct or man agement 3 a principle plan or course of action as pur sued by an organization 8 The Webster s dic tionary defines the word procedure as follows 1 the act, method, or manner of proceeding in some process or course of action esp , the sequence of steps to be fol lowed 2 a particular course of action or way of doing something, 3 the established way of carrying on the business of a legislature, law court, etc 8 Cf The Oxford English Dictionary Oxford University Press Oxford England 1985 which defines policy as here pertinent as follows In reference to conduct or action generally Prudent expedient or advanta geous procedure prudent or politic course of action also as a quality of the agent sagacity shrewdness artfulness in bad sense cunning crafti ness dissimulation A course of action adopted and pursued by a govern ment party ruler statesman etc any course of action adopted as advan tageous or expedient This dictionary defines procedure as here perti nent as follows I The fact or manner of proceeding with any action or in any circumstance or situation a system of proceeding proceeding in reference to its mode or method conduct behavior A particular action or course of action a particular mode of action 61 I conclude the use of these broad terms, policies and procedures, in the Employee s Acceptance form could reasonably be construed as encompassing the Company Position on Labor Unions Thus, the em ployees could reasonably believe that if they engaged in any unionizing activity they could be subject to termina tion as a matter of company policy and procedure Any ambiguity in the two provisions must be resolved against Respondent who promulgated the statements, J C Penney Co, 266 NLRB 1223 (1983) The Respond ent s Position on Labor Unions cannot be found to be a prediction for the threat of discharge is solely within the Company s control and not based on related econom is necessities The clear threat of discharge contained in the Employees Acceptance, which immediately fol lows the Company Position on Labor Unions, takes this case out of the ambit of those decisions finding the employers statement protected under Section 8(c), for in this case there is a clear threat of reprisal, including dis charge for the breach of the Company Position on Labor Unions The Company Position on Labor Unions" indicates Respondents dedication to keep the company free from any union or agent ' This statement is immediately followed by the Employee s Acceptance which the Company requires all employees to execute The combined messages are clearly reason ably coercive That the handbook contains some sec tions that are only informational does not obviate or mitigate the impact of the wording of the Employee s Acceptance and its juxtaposition to the Company s statement of commitment to be free from unions In the acceptance employees pledge to abide by all com pany policies and procedures without any stated excep tions If there was an intent to exclude the Company Position on Labor Unions from the ambits of policies and procedures and rules referred to in the Employ ee s Acceptance stub the failure to clearly express this intent must be borne by Respondent who controls the content of the document The Company made no effort to clearly convey to its employees that its Position on Labor Unions was merely a belief or statement of opinion not within the purview of the threatened discipline contained in the Employees Acceptance stub As noted above the second sentence of the Employees Acceptance pro vides continued employment is contingent on employees abiding by these rules This sentence does not provide the necessary explanation that the threatened discharge is limited to violations of those matters listed in the section of the handbook entitled Rules of Conduct In fact discipline is not limited to this section the no solicitation rule appeanng in the same section of the handbook as the Company Position on Labor Unions also contains provision for discipline if the rule is not followed The reference in the Employees Acceptance' to these rules could readily refer to the policies and proce dures mentioned in the preceding sentence of the Em ployee s Acceptance This finding is buttressed by Byrd s understanding that failure to execute the Em ployee s Acceptance could result in discharge It is rea sonable to expect employees to reach a similar conclu 62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sion with regard to their right to engage in union orga razing The employers statements in this case do not meet the careful phrasing referred to in the Gissel case, quoted above Supra 395 U S at 617 In sum, I find the juxtaposition of the statements, the inflexible requirement that all employees sign the accept ance stub and new employees execute it when they sign in at the start of their first day on the job and the place ment of the Company Position on Labor Unions and the Employees Acceptance as the last two items in the handbook conveys the clear inference that failure to execute and abide by the acceptance could also lead to discharge I also find the phraseology of the acceptance tends to emphasize the import of following all the provi sions of the employee handbook, including the Compa ny Position on Labor Unions This conclusion is not al tered by the lack of any evidence that any manager re quired employees to read this policy prior to executing the acceptance Respondent clearly intended its employ ees to read and abide by the provisions of the handbook as indicated in the Employee s Acceptance I therefore conclude the Company Position on Labor Unions co joined with the Employees Acceptance constitute a threat of discipline if an employee engages in concerted protected activity thereby tending to interfere with their free exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act Compare Mark Twain Marine Industries, 254 NLRB 1095 (1981) Standard Products, 281 NLRB 141 (1986) S S Kresge Co , 197 NLRB 1011 (1972), and Butler Shoes New York 263 NLRB 1031 (1982) THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act I shall recommend that it cease and desist therefrom and take certain affirmative action de signed to effectuate the policies of the Act General Counsel requests that the Remedy include a provision for the posting of a Notice to Employees na tionwide I find merit in this request based on Respond ent s admission that the employee handbooks were dis tributed nationwide and all employees were required to execute the Employees Acceptance' stub which was immediately preceded in all current versions of the hand book by the Company Position on Labor Unions Thus I find that all of Respondents employees have been exposed to the unlawful coercion of the employee handbooks and should be notified that they have the right to engage in concerted protected activity or refrain therefrom I do not find merit in General Counsels request that modification of the Company Position on Labor Unions be authorized as an alternative to expunction of the provision from the handbook There was no alterna tive language proposed, hence there is no predicate to consider the lawfulness of any modified language Ac cordingly, this proposal is denied I similarly find Gener al Counsels request for a visitatorial clause to be without merit under the circumstances of this case, and it is hereby denied CONCLUSIONS OF LAW 1 Respondent is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 The Union is a labor organization within the mean mg of Section 2(5) of the Act 3 The Respondent has interfered with restrained, and coerced its employees in the exercise of their rights guar anteed in Section 7 of the Act and it has thereby en gaged in unfair labor practices in violation of Section 8(a)(1) of the Act by coercively threatening to discharge employees if they fail to adhere to the Respondents posi tion of not having any union represent its employees 4 The above described unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act [Recommended Order omitted from publication ]