Caldor, Inc.

National Labor Relations Board - Board Decisions

Nov 24, 1995

319 N.L.R.B. 728 (N.L.R.B. 1995)

728
319 NLRB No. 94
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951).
The Respondent contends that the judge erred in crediting testi-
mony by three former employees on the ground that they gave in-
consistent testimony about events that occurred at a union meeting
that they attended on the Respondent’s premises. We note, however,
that these employees attended three different meetings which the
Union (Local 888, United Food & Commercial Workers Union,
AFL–CIO) held at that location on December 17, 1992.
2 See, e.g., Kosher Plaza Supermarket, 313 NLRB 74, 85 (1993).
3 See, e.g., Famous Castings Corp., 301 NLRB 404, 407 (1991).
Caldor, Inc. and Shawn Smith and Local 888,
United Food & Commercial Workers Union,
AFL–CIO, Party in Interest. Case 2–CA–26441
November 24, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On June 29, 1995, Administrative Law Judge Robert
T. Snyder issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed cross-exceptions, a supporting
brief, and an answering brief to the Respondent’s ex-
ceptions.
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 exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified below and to adopt the rec-
ommended Order as modified.
We affirm the judge’s findings of violations of Sec-
tion 8(a)(1), (2), and (3) of the Act. Although the com-
plaint alleged that the Respondent also violated Section
8(a)(1) and (2) of the Act by reprimanding employee
Frances ‘‘Terry’’ Passaro for not supporting the Union
(Local 888, United Food & Commercial Workers
Union, AFL–CIO) and by giving Passaro an authoriza-
tion card to sign on the Union’s behalf, the judge did
not reach these issues in his decision. For the reasons
stated below, we find merit in the General Counsel’s
cross-exceptions to the judge’s failure to find these ad-
ditional violations.
The credited evidence shows that, on December 17,
1992, the Respondent directed Passaro to attend a
meeting that the Union held on the Respondent’s
premises. During the meeting, Passaro vehemently ob-
jected to the wages and benefits that the Union said
that the unit employees would receive. Passaro at one
point suggested that the employees bring in another
union.
The next day, December 18, the Respondent sent
Passaro to the office of Richard Mardis, the Respond-
ent’s regional personnel manager of the distribution di-
vision. Mardis stated that he had walked by the con-
ference room while the Union was conducting its
meeting the previous day and that he had overheard a
lot of things being said, most of them by Passaro.
Mardis told Passaro that she was a negative person on
the basis of what she had said at the meeting, that she
needed to change her attitude, and that she had known
when the Respondent hired her that it was a closed
shop and that she was going to have to join the Union
in order to keep her job. Mardis gave Passaro an au-
thorization card.
In the context of this case, where the Respondent,
inter alia, violated Section 8(a)(2) by unlawfully grant-
ing recognition to the Union before it hired any of the
unit employees, we find that the Respondent further
violated Section 8(a)(2) when Mardis threatened
Passaro with discharge for failing to support the Union
that the Respondent had chosen to represent its em-
ployees.2 Because Mardis also gave Passaro an author-
ization card to sign on the Union’s behalf, we con-
clude that this assistance to the Union, in context, con-
stituted an additional 8(a)(1) and (2) violation.3 Thus,
we will modify the judge’s Order and notice to reflect
the additional violations we have found.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 3:
‘‘3. By granting recognition to Local 888, United
Food & Commercial Workers Union, AFL–CIO as the
exclusive collective-bargaining representative of its
full-time and regular part-time warehouse employees
employed at its Newburgh, New York facility at a time
before the facility had opened for operations and be-
fore any employees had been employed in its oper-
ations, by informing its employees and applicants for
employment that their employment benefits would be
determined by the Respondent in conjunction with
Local 888 and that Local 888 would represent them,
by making its premises available for organizational
meetings by Local 888 and instructing employees at its
Newburgh, New York facility to attend those meetings,
on working time, by instructing its employees to join
and support Local 888 as a condition of continuing
employment, by giving its employees union authoriza-
tion cards and instructing them to sign the cards on
Local 888’s behalf, and by reprimanding an employee
for not supporting Local 888, the Respondent has been
rendering unlawful assistance and support to a labor
organization in violation of Section 8(a)(1) and (2) of
the Act.’’
729CALDOR, INC.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Caldor, Inc., Newburgh, New York, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order as modified.
1. Insert the following as paragraphs 1(g) and (h)
and reletter the subsequent paragraph accordingly.
‘‘(g) Reprimanding its employees for not supporting
Local 888.
‘‘(h) Giving its employees authorization cards to
sign on Local 888’s behalf.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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.
WE WILL NOT grant recognition to Local 888,
United Food & Commercial Workers Union, AFL–CIO
or any other labor organization as the exclusive collec-
tive-bargaining representative of all full-time and regu-
lar part-time warehouse employees employed at our
Newburgh, New York facility at a time before the fa-
cility had opened for operations and before any em-
ployees had been employed in its operations.
WE WILL NOT recognize and bargain with Local 888
as the exclusive representative of our employees for
the purpose of collective bargaining unless and until
this labor organization has been certified by the Board
as the exclusive collective-bargaining representative of
our employees pursuant to Section 9(c) of the Act.
WE WILL NOT enforce or give effect to our collec-
tive-bargaining agreement with Local 888 or any ex-
tension, renewal, or modification thereof, or any super-
seding agreement, and WE WILL NOT enforce and give
effect to its union-security provision and to authoriza-
tions executed by our employees pursuant to its dues-
checkoff provisions causing dues, initiation fees, as-
sessments, or any other moneys to be deducted from
employees’ pay and remitted to Local 888, but nothing
here requires the withdrawal or elimination of any
wage increase or other benefit or terms or conditions
of employment which may have been established pur-
suant to that agreement.
WE WILL NOT inform employees and candidates for
employment that their employment benefits would be
determined by us in conjunction with Local 888 and
that Local 888 would represent them.
WE WILL NOT make our premises available for orga-
nizational meetings by Local 888 and WE WILL NOT in-
struct employees at our Newburgh, New York facility
to attend such meetings and on working time.
WE WILL NOT instruct our employees to join and
support Local 888 as a condition of retaining employ-
ment and to sign authorization cards on Local 888’s
behalf.
WE WILL NOT reprimand our employees for not sup-
porting Local 888.
WE WILL NOT give our employees authorization
cards to sign on Local 888’s behalf.
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 withdraw and withhold recognition from
Local 888 as the exclusive collective-bargaining rep-
resentative of all full-time and regular part-time ware-
house employees employed at our Newburgh, New
York facility, unless and until this labor organization
has been duly certified by the Board as the exclusive
collective-bargaining representative of these employ-
ees.
WE WILL reimburse all present and former employ-
ees for all initiation fees, dues, assessments or any
other moneys which may have been paid to Local 888
pursuant to the union-security and dues-checkoff
agreements between us and that Union, with interest.
CALDOR, INC.
Ruth Weinreb, Esq., for the General Counsel.
Winifred D. Morio, Esq. (Putney, Twombly, Hall & Hirson),
for the Respondent.
Patricia McConnell, Esq. (Vladeck, Waldman, Elias &
Engelhard, P.C.), for the Party in Interest.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case
was tried before me on June 27, 28, and 29, 1994, in New
York, New York.
The complaint, as amended at trial, alleges that Caldor,
Inc. (Respondent or Caldor) rendered unlawful assistance and
support to the Party in Interest, Local 888, United Food &
Commercial Workers Union, AFL–CIO (Local 888), in vio-
lation of Section 8(a)(1) and (2) of the Act, by various acts
and conduct, including informing employee applicants prior
to their employment that their employment benefits would be
determined by it and Local 888, and that Local 888 would
represent them, making its premises available for organiza-
tional meetings by Local 888 and instructing employees to
attend, instructing employees to join and support Local 888
and reprimanding employees for not doing so, granting rec-
ognition to Local 888 as exclusive representative for unit
employees at a facility even before the facility began oper-
ations, and based on a card check, entered into a collective-
bargaining agreement with Local 888 for the unit employees
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates shall refer to 1992 unless otherwise noted.
in the particular facility which contains a union-security
clause and dues-checkoff clause, pursuant to which it has
given effect to authorizations executed by unit employees
and deducted dues and initiation fees from employees’ pay-
checks, at a time when Local 888 did not represent an
uncoerced majority of its unit employees. Caldor is further
alleged to have violated Section 8(a)(1), (2), and (3) of the
Act, by unlawfully entering and applying the terms of the
collective-bargaining agreement, especially the deduction of
union dues. Respondent, by its answer, denied the commis-
sion of any unfair labor practices.
Local 888, the Party in Interest, appeared by counsel, and
fully participated in the trial. All parties were provided full
opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, to argue orally, and to
file briefs. Counsel for the General Counsel, Respondent, and
the Party in Interest each filed posttrial briefs and they have
been carefully considered. On the entire record in the case,
including my observation of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
At all material times, Respondent, a corporation with of-
fices and places of business in New York State, including a
warehouse facility in Newburgh, New York (Respondent’s
facility), has been engaged in the operation of retail depart-
ment stores. Annually, Respondent, in conducting its busi-
ness operations described, derives gross revenues in excess
of $500,000, and purchases and receives at its facility goods
valued in excess of $50,000 directly from points located out-
side the State of New York. Respondent Caldor admits, and
I find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The Re-
spondent admits and I find that Local 888 is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Respondent’s Metropolitan New York Area Business
Operations, Ongoing Relationship with Local 888, and
Decision to Open a Distribution Facility in Newburgh
Respondent operates a number of department stores in the
metropolitan New York area. It also maintains a product dis-
tribution center in North Bergen, New Jersey, and another in
Farmingdale, New York. Caldor maintains a series of collec-
tive-bargaining relationships with Local 888 and other locals
affiliated with the same international union covering its fa-
cilities. One 3-year agreement with Local 888 covers the
stores in the New York metropolitan area. Another 3-year
agreement with Local 888 covers the distribution center in
Farmingdale, and a third covers the distribution center in
North Bergen, New Jersey.
In 1991 Caldor decided to build a new distribution center
in Newburgh, New York. It was built in 1992 and began op-
erating in November of that year with its first employees.
While Francis Witt III, Respondent’s vice president of labor
relations, called by counsel for the General Counsel as a wit-
ness under Section 611(c) of the Federal Rules of Evidence,
surprisingly and disingenuously could not specify the source
of the rank-and-file employees hired for the Newburgh facil-
ity beyond agreeing that a majority were new employees, in
fact, all nonsupervisory personnel were hired from the out-
side, while many supervisory and managerial employees
were transferred from other facilities. Indeed, Witt’s own
pretrial affidavit, while referring to 17 managers and super-
visors being transferred to Newburgh from North Bergen be-
ginning in October 1992, makes no reference to any other
employees being transferred to Newburgh from any other Re-
spondent facilities.
B. The Staffing of the Newburgh Facility and the
Circumstances Resulting in Local 888 Achieving
Recognition and Securing a Collective-Bargaining
Agreement
Respondent accepted an offer from the New York State
Employment Service to utilize its offices and facilities in re-
cruiting and interviewing applicants for hire to staff its new
Newburgh facility. This process began with a series of initial
interviews conducted in September 19921 at the state em-
ployment office in Newburgh.
Witt first denied having such discussions, but after being
referred to his pretrial affidavit, agreed that in conjunction
with discussions with Local 888 during the fall about other
collective-bargaining relationships, there were discussions
about some terms which may apply to Newburgh. Witt re-
called having discussions regarding the health and welfare
contributions which would apply in the event Local 888 be-
came bargaining representative. They also discussed wage
rates which would apply as well as sick leave. Witt empha-
sized these discussions would only be effective if the em-
ployees selected the Union to represent them and a contract
would not be negotiated until after a majority status was es-
tablished.
Although Witt at first denied a tentative agreement re-
sulted from these discussions, insisting only that there may
have been a summary or listing of the subjects discussed, he
now acknowledged, consistent with his affidavit, ‘‘to the ex-
tent we reduced anything to writing, I believe we set down
tentatives concerning the health benefits, the wage rate and
the sick pay.’’ Witt further agreed that a summary of some
of the terms of the agreement may have been arrived at in
written form. In these meetings, Local 888 was represented
by Al Guglielmo, its secretary-treasurer.
Witt was shown a three-page undated and unsigned docu-
ment headed ‘‘Memorandum of Agreement’’ and containing
the following introductory and defining language: ‘‘The fol-
lowing summarizes the Agreement between Caldor, Inc.
[Employer] and VFCW Local 888 [the Union] covering em-
ployees of the Caldor Distribution Center in Newburgh, New
York.’’ He denied he had seen it before the week prior to
the hearing when he was shown it by counsel.
A review of its contents discloses that it itemizes 14 sepa-
rate bargaining subjects, 12 of which in language and under-
standing are identical to the same subject areas included in
the collective-bargaining agreement Caldor ultimately entered
with Local 888 covering the Newburgh facility. These sub-
jects deal with bargaining unit, seasonal employees, union
security, rest periods, workweek, overtime, seniority, holi-
days, personal holidays, vacations, jury duty, and wages.
Only the trial period provision underwent a substantial
731CALDOR, INC.
change, being reduced from 6 months in the unsigned and
undated memorandum to 90 calendar days in the full agree-
ment. Another provision, covering no strikes or lockouts,
with reference to strikes, prohibited them without limitation
in the memorandum, while in the agreement prohibited them
‘‘pending the settlement of any grievances between the par-
ties pursuant to the grievance and arbitration provisions of
this Agreement.’’
A later witness for counsel for the General Counsel, then
employee Frances Passaro, testified without contradiction that
she had received the copy of the memorandum shown Witt
from Guglielmo at a meeting she attended at the Newburgh
facility along with other employees which she was directed
to attend to meet the Local 888 official on December 17,
1992. The memorandum Passaro received contained a hand-
written underlining of the word Newburgh in the introduc-
tory and defining paragraph and handwritten notes on the last
page listing dues as $5.68 for ‘‘full-time and $4.21 for ‘‘part-
time.’’ The inference is reasonable that these notations were
made by Guglielmo himself after the memorandum was pre-
pared but before its distribution to Passaro. Guglielmo was
not called as a witness by either the Party in Interest or Re-
spondent and the statements attributed to him by Passaro and
other witnesses stand unopposed on this record and are cred-
ited.
At a later point in the hearing, before resting her case-in-
chief, counsel for the General Counsel offered into evidence
another printed copy of the memorandum of agreement
which counsel for the Union represented in the record was
produced for her from the Union’s files in response to the
subpoena which had sought, inter alia, ‘‘copies of any collec-
tive-bargaining agreements, memoranda of understandings,
written agreements which Caldor Inc. (the Respondent) en-
tered into with Local 888, United Food & Commercial
Workers Union, AFL–CIO (the Union), concerning Respond-
ent’s Newburgh warehouse facility, during the period from
October 1, 1992 until the present.’’ I rejected receipt of the
document in the absence of establishment of its authenticity
and because a copy had already been received during
Passaro’s testimony (Tr. 442–443). I now believe that ruling
to have been made in error and now reverse it, and receive
the memorandum in evidence as General Counsel’s Exhibit
9. It is clear that the document accompanied by union coun-
sel’s representation corroborates Passaro’s testimony that the
memorandum was represented by Union Agent Guglielmo as
the product of an understanding earlier arrived at with
Caldor’s which was enforceable between them and binding
on the unit employees, requiring them to comply with its
union-security clause. Because it was produced from the
Union’s files, its authenticity is already established.
After the initial interviews a series of second and third
interviews were conducted of applicants for employment at
Newburgh in a continuing winnowing process which ended
with an informational briefing and individual offers of em-
ployment to finalists in the process.
Frances Passaro, also known as Terry, testified that she ap-
plied for a job at Respondent’s facility at the state employ-
ment office in Newburgh. Shortly afterward she was called
for an interview in the latter part of September 1992. She
was interviewed that day by Richard Mardis, then regional
personnel manager of Caldor’s distribution division, and by
Chris Kent, then freight supervisor at the Newburgh facility,
also described by Passaro as supervisor for bulk breakdown.
She met first with Mardis who reviewed her application and
provided information about Caldor. She asked him did he
know what the salary would be and the benefits. Mardis re-
plied that at that time their Union, Local 888, could not give
them that information because they did not yet put together
a contract, that Local 888 would come later on in the facility
to discuss those issues. Mardis also told her that Local 888
was Caldor’s Union and that they would meet with us later
about the salary and the benefits.
In a second interview that day, conducted by Kent, he re-
viewed her employment history and asked her questions
about material in her application.
Passaro returned to the state office in Newburgh for more
interviews in the middle of October. She met that day with
Mardis, Jean Pardee, personnel manager of the Newburgh fa-
cility, and Mike Berundy, a supervisor. She first met with
Berundy who reviewed her application and told her he was
impressed with it. When she asked about wages, he could not
give her a figure, but estimated she would likely be offered
a salary between $8 and $9 an hour. She met briefly there-
after with Mardis and Pardee but only to take a written
standardized test and to be referred to a medical lab for a
urine analysis.
Passaro next met with Caldor officials at the end of Octo-
ber, when she was invited to a meeting at the Days Inn Hotel
in Newburgh. Present were between 20 to 30 applicants, as
well as Mardis, Pardee, and Jeff Driscoll, supervisor for re-
ceiving. Mardis addressed the group initially, then Pardee
spoke to the group about safety, clothing, and played some
videotapes. Later, individual applicants were invited to meet
Caldor representatives individually where job offers were
made.
Passaro was called to meet with Mardis. He offered her
a job at $7.50 an hour. He explained her work hours and
days, department assigned, and clothing she was expected to
wear. Passaro asked about benefits. Mardis stipulated that
Local 888 was going to be their Union. However, at this
time they did not have a contract put together and they
would have to meet with the employees later on while they
were working at the facility to discuss those issues with
them.
Passaro started working for Caldor on November 23 as a
general warehouse employee. She started in bulk breakdown,
transporting goods and loading pallets. She then became a
transporter for the shipping department and finally, a loader
for the shipping dock. On December 17, her supervisor,
Gene McIntyre, spoke to her on the shipping dock floor. He
told her she had to go to a union meeting at 3:30, the whole
shipping department was going at that time. At this time,
Passaro was a transporter for shipping and worked an 8:30
a.m. to 4:30 p.m. shift. Passaro explained to McIntyre that
she did not get off work until 4:30, that she was scheduled
to set up the shipping lanes for the next day from 3:30 to
4:30 p.m. and that she needed his permission to leave the
floor and this scheduled assignment. McIntyre gave her per-
mission to leave the floor.
Passaro attended the meeting along with 20–30 employees,
many from her own department, shipping, but a few from
other departments. She was not on a break when she at-
tended. The meeting, held in a conference room, was ad-
dressed by Al Guglielmo. There were no Caldor officials or
732 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
supervisors present. Giglielmo first introduced himself to the
assembled employees as the treasurer of Local 888. He also
introduced one or more other union representatives. Then he
proceeded to read from a two-, three-, or four-page document
which he was holding. He first described the document as a
memorandum of agreement, a contract put together by the
North Bergen facility of Caldor’s and Local 888 for the
Newburgh Distribution Center. He then read the entire docu-
ment. The terms of employment covered in the memorandum
have been previously described. The one, entitled union se-
curity, which Guglielmo read, provided: ‘‘[U]nit employees
shall be required to join and remain members of the Union
within ninety (90) days after hire.’’ The provision on per-
sonal holidays provided that employees would be eligible for
1 paid personal day after 6 months of employment and 2
days after the completion of 1 year. In terms of wage in-
creases, the memorandum provided and Guglielmo read that
employees would receive a total of 70-cent-per-hour in-
creases after 2 years of employment. Passaro recalled that
Guglielmo also discussed their sick time, a provision for 1
day sick leave, although that benefit is not described in the
memorandum. The collective-bargaining agreement Caldor
and Local 888 entered notes it was made on November 1 and
it was made effective from November 1, 1992, to January
31, 1996. The parties apparently did not sign it until January
31, 1993. In the full agreement, employees are eligible for
1 sick day after 1 year, and 2 each contract year thereafter.
Passaro expressed her views very freely at this meeting.
She said she was upset at the fact that there was only 1 sick
day a year and 1 personal day a year. (Actually, 1 day each
until a year’s service is reached when the benefits became
2 days). Guglielmo responded ‘‘that it’s in the contract, it’s
binding, there’s nothing you can do about it.’’
After this exchange, which occurred during the reading of
the document, Guglielmo went on to complete a reading of
the memorandum, the last item of which concerned the wage
increases. In Passaro’s recollection the increases totaled 75
cents within a 2-year period. At the meeting, she said ‘‘this
outraged us.’’ Passaro went on, again we asked how could
the North Bergen put together a contract for our facility
without us knowing about it. We had nothing to say about
the contract whatsoever.
Guglielmo responded to this criticism, replying, ‘‘you had
no right to say anything,’’ that North Bergen was also with
Local 888, and that was also their union and Caldor has had
a contract there for many years and that this would also be
a part of that contract.
Again, at this point, Passaro said, ‘‘let’s bring in another
union because this is ridiculous. We have rights here, I know
we do. Something has got to be done about this. There is
no way they can put together a contract for us. The pay scale
down there, in North Bergen, is a lot different than it is up
in our area. So how could they possibly have put together
a contract for Newburgh.’’ As Passaro explained, she was
extremely outraged at this because ‘‘no one can put together
a contract for where I work unless my people agree on it,
and no one in my facility agreed on that.’’ Passaro named
other employees who also spoke up in protest, including
James Washington, and Sharon Burelli, who walked out say-
ing ‘‘this is ridiculous, I don’t even have time for this, this
is outrageous.’’
At one point, Passaro said she was angry at Caldor over
the fact that they had a well-publicized ribbon-cutting cere-
mony prior to this meeting, where they announced that they
had made $2 billion that year, ‘‘we had to kiss up to the
Company, and yet they couldn’t afford an extra sick day off,
they couldn’t give us more than seventy-five cents within
two years.’’
After these criticisms, Guglielmo left the room and came
back and said he had just spoken with Jim Lucas from Local
888. Lucas said there was no negotiating this contract, ‘‘it
is what it is.’’ At the meeting’s conclusion, Guglielmo said
‘‘you all knew that Local 888 was going to be your union
and that it was going to be a closed shop, that you had to
sign the applications, if you didn’t within a ninety day period
you would be terminated.’’ At this point, Passaro asked him
for a copy of the memorandum and he left and returned and
gave her three copies. It was one of the copies which Passaro
received, with the unidentified handwriting on it, which was
then received in evidence. By the time the meeting con-
cluded it was around 5 p.m.
At the meeting, there was a table with some Local 888
membership applications on it as well as information about
a MasterCard or Visa credit card which could be obtained
through the Union. Passaro did not sign a membership appli-
cation.
The following day, December 18, Passaro was asked to go
to Mardis’ office. In his office they were alone and seated.
He asked her if she knew what their meeting was about. He
went on, ‘‘I believe you have questions about the union.’’
She said no. He said, ‘‘well, I think you do,’’ and she re-
plied, ‘‘no, I do not.’’ He went on, ‘‘well, Terry, I hear dif-
ferently. I happened to be walking by the conference room
where you were yesterday and I overheard a lot of things
being said, most of them coming from you.’’ He told her she
was a negative person for what she was saying. She needed
to change her attitude. He couldn’t believe some of the
things she was saying.
Passaro said she thought that her union meetings were pri-
vate. Mardis replied, ‘‘your [sic] reading too much into this.
I just happened to be walking by.’’ However, from the detail
Mardis supplied about the meeting, including her conversa-
tion about bringing in other unions, among others of her
comments, Passaro concluded that Mardis must have ob-
tained his information from talking with Al Guglielmo.
Mardis also referred to her comments made at the meeting
about Caldor’s publicized ceremony announcing its huge suc-
cess that year, in contrast to the paltry employee benefits and
wages Local 888 was announcing, telling her there was no
reason for her to say that. Mardis also said she was a nega-
tive person because of a problem she had with Pardee over
a Christmas committee, and her attitude really had to change.
He said, ‘‘you knew when you came to Caldor that Local
888 was our union, you knew it was a closed shop, and you
know you were going to have to join the union, within a
ninety day period, or be out of a job.’’
Passaro started crying, feeling that her privacy had been
violated. Mardis left and returned with a tissue for Passaro,
apologized but said he had to do this, ‘‘this is my job’’ and
asked her if she was ready to sign the membership applica-
tion for Local 888. Passaro said yes. He pushed the applica-
tion in front of her with a pen on top and she proceeded to
fill it out and sign it. Passaro felt she had to sign, particularly
733CALDOR, INC.
after being told by Caldor’s regional personnel manager that
a condition of being hired was to join the Union, and she
had to sign in front of that manager. Eventually union dues
were deducted from her wages. No election was conducted
to determine whether Local 888 would become the Caldor
employees’ bargaining agent.
During her cross-examination, Passaro acknowledged that
a few days after the union meeting she was called into the
personnel office because she had forgotten to sign another
portion of the union application. The union application which
had been presented to the employees, including Passaro, con-
tained three parts, a top part which was the application for
membership, a middle portion, entitled ‘‘Authorization and
Assignment’’ in which employees voluntarily authorize their
employer to deduct from their wages regular membership
dues, initiation fees, and assessments with the limitation re-
quired by law, and a third bottom part, separated by perfora-
tion, in which the employer lists personal information and
names a beneficiary for purposes of benefits due under the
union’s health and welfare fund and pension plan. Passaro’s
two-part application, the third portion was unavailable and
probably on file at the Union’s fund office, show that she
dated the membership portion November 18, 1992, in error,
and when, a day or two later, was approached by the person-
nel office, corrected the date by entering now on the Author-
ization and Assignment portion ‘‘this 18 day of 12, 1992’’
and signed it. This is the portion which she had failed to
complete on December 18 in Mardis’ office. Passaro wanted
the completed form to show that at least a portion was
signed and dated by the date of her meeting with Mardis
even though she had been approached by personnel a few
days later.
The foregoing are the factual conclusions I draw from the
extended cross- and recross-examination by Respondent
counsel, and redirect examination by the General Counsel on
the basis of which Respondent urges Passaro was shown to
be not credible. I make no such finding. I find Passaro’s re-
cital, in spite of her extensive and determined cross-examina-
tion by both Respondent and union counsel, honest, straight-
forward, and frank and she is credited with respect to the
union meeting, particularly in the absence of any contrary
testimony, and her testimony about the circumstances of her
signing the Union’s application, and her conversations with
both McIntyre and Mardis, about which more will be said.
Particularly, Respondent’s attempts to show conflicts be-
tween her pretrial affidavit and testimony, and within her tes-
timony, about where she was when she was approached by
personnel to complete her application is unpersuasive and
unavailing. At some later point in her testimony, Passaro be-
lieved she had corrected the date on the application to De-
cember 17, the date of the union meeting, because of her fear
of losing her job from her December 18 talk with Mardis.
At the time of this testimony the Union had not yet produced
under subpoena the second portion of her application. This
testimony is in error, but without government counsel having
the second portion of the application available, not produced
until 2 days later, the witness’ memory could not have been
refreshed or clarified by reference to it. (Tr. 282; 296–298.)
The facts show she did correct the month from November to
December on the second portion and did enter a date on
which she met with Mardis and was cajoled and coerced to
sign, consistent with the date she signed the first part. In
view of all these facts and circumstances, her error in this
regard is not significant and does not warrant her impeach-
ment.
Furthermore, the facts developed regarding Passaro’s later
separation from Caldor’s employ neither show a vindictive
person compelled to prevaricate out of bias nor a person
whose later conduct was inconsistent with her strong anti-
Local 888 stance earlier. It appears that the Union subse-
quently sought out Passaro to act as steward, she was first
appointed in January 1993 and that she was later appointed
head shop steward over three or four other elected employee
stewards for the unit employed at the Newburgh facility, and
in that capacity tried to enforce the contract. Because of her
active union role Giglielmo told her in agreement with her
own view, that he thought she was being harassed by Caldor.
Passaro agreed he told her she would make a good union
representative but needed more experience, but she denied
she had asked him for a paid union position. On May 21,
1993, Passaro was told by Caldor she was going to be termi-
nated. Passaro disputed that in lieu of her being terminated
she agreed, apparently voluntarily, to resign with 1 week’s
severance pay. She later explained that the Company’s con-
duct toward her was intimidating and left her with few op-
tions. Without advance notice, Mardis presented a letter to
her on Caldor stationery dated May 21 in which she states
she resigned effective May 28, and she understands she may
use Mardis as a reference for future employment opportuni-
ties. Earlier that day, Passaro had been told she was being
terminated because her attendance was poor. When later pre-
sented with this letter by Mardis, she was told these were the
terms of her termination and the Company would not protest
her receiving unemployment benefits and she would be re-
ceiving a week’s severance pay, apparently the pay from
May 21–28. Under these circumstances, Passaro signed, but,
because she believed she had been coerced to leave and be-
cause of her union activities, she later filed an unfair labor
practice charge against Caldor alleging her May 21 separa-
tion as an unlawful discharge under the Act. That charge was
either later withdrawn or dismissed.
These facts are not inconsistent with Passaro’s earlier
strong anti-Local 888 posture. They are consistent with
Passaro’s evident desire to represent employee interests with
her employer, in this instance, through the Union which had
become established as his bargaining representative, whether
lawfully or not, and was the only vehicle for furthering em-
ployee rights. In my considered judgment the circumstances
of Passaro’s separation from Caldor have not colored her tes-
timony and she has not exhibited a bias which would dis-
credit her generally trustworthy and evidently deeply felt nar-
rative.
Michelle Abbruzzese also testified in support of the com-
plaint. She was employed as a general warehouse worker by
Caldor at the Newburgh facility from her hire in November
1992 until her leaving in September 1993. Her work sched-
ule was from 7 a.m. to 3:30 p.m. She worked in the bulk
breakdown area breaking down freight coming in to receiv-
ing for shipment from shipping areas to individual stores.
After an initial interview at the state employment office in
Newburgh, she was called back for a second interview to the
same office 2 weeks later. She met Mardis who reviewed her
application, and told her she would be considered for a lead
position. At her final interview she was told how much she
734 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
was getting paid. Abbruzzese asked if there was any kind of
union and what kind of benefits there were and how they
worked that. Mardis said once she was hired they would let
her know. She next met George Walker, production manager,
who gave her a rundown on Caldor’s and how they run the
distribution center in Bergen County. When questioned he
also said her benefits would be explained once she was
hired.
Her third interview took place, like Passaro’s, at Days Inn
in Newburgh at the end of October. Present were 15 to 20
other applicants. Mardis first addressed the group, followed
by Pardee, who showed a film on loss prevention and safety
equipment. Later, she met privately with Mardis at the back
of the room. He wrote down a wage figure she was being
offered for a lead position and slipped the paper to her. Once
again she asked about benefits. This time he said once she
was hired someone from the Union would come in and speak
to them. Abbruzzese told him she would get back to him on
the offer. She did accept and started work on November 20.
On a day in December, while she was in the bulk break-
down area of the Newburgh facility, with one other em-
ployee present, her supervisor, Chris Kent, told her that
someone from the Union would come in and talk to all of
them, he didn’t have any specific information. Sometime
later that month, she had come in early to work and was told
by Kent there was a union meeting that afternoon. After
lunch that day, Mardis and Kent told the bulk breakdown
employees that the Union was going to be in the conference
room at 2 p.m. and that they had to attend the meeting.
At the meeting were 15 to 20 other employees. No super-
visors were present. Al Guglielmo addressed the group. He
told them he was from Local 888 out of Bergen. He was
Caldor’s Union. He proceeded to tell them about benefits and
raises. He had with him a benefit booklet and a copy of a
fairly thin contract. When they entered they were given
union cards. At some point the employees were told to sign
them and fill them out and leave them at the end of the
meeting. Abbruzzese signed a union membership application
at the union meeting held on December 17 as did some of
the others present. The meeting lasted approximately 2 hours
during which the various benefits were presented and dis-
cussed. Most of the employees asked for a copy of the con-
tract Guglielmo appeared to be reading from, but they were
told he didn’t have any to distribute.
Abbruzzese also related a conversation held with Mardis
5 minutes prior to the union meeting. She was with two
other employees at the time. Mardis told them that their jobs
were Union and he wanted them to go with the Union.
Caldor started deducting dues from her pay sometime in
February 1993.
During her cross-examination, Abbruzzese agreed that the
Union never said at the meeting that they, the employees,
had to join the Union to keep their jobs, but they implied
it. That implication very likely arose from Guglielmo’s read-
ing of the union-security provision contained in the memo-
randum of agreement and carried over along with almost all
other of its terms into the collective-bargaining agreement
entered early in the new year.
At third employee witness, Thomas Holt, testified that he
had worked in bulk breakdown for Caldor at the Newburgh
facility from November 23, 1992, to January 1994. His work
hours were from 7 a.m. to 3:30 p.m., Monday through Fri-
day. Chris Kent was his supervisor. After a first interview
conducted by Pardee in early October, Holt met with Pardee
again, Mardis, and McIntyre the following week. At the sec-
ond meeting with Pardee, when Holt asked if there would be
benefits, Pardee said there would be and that there would be
a union job. At the interview with Mardis and McIntyre
which followed that day, his work experience and job habits
in past jobs were discussed. At his third interview, he was
invited along with approximately 30 other employees to the
Days Inn. Mardis, Pardee, and a third Caldor representative,
the head of loss prevention, each addressed the group. Later
that day, Pardee met privately with him and gave him a
packet containing a job offer, which included his department,
starting date, and salary. Pardee also told him there would
be a union and there would be benefits but they would come
up later.
After starting work, later, on or about December 17,
Mardis sent him and other employees into a union meeting,
telling them they had to attend. The meeting took place at
approximately 3 p.m. in the afternoon. There were five other
employees present, including Ricky Williams. No supervisors
were present. Al Guglielmo, accompanied by another union
agent, addressed the group. He handed out information about
benefits they would be receiving. He went over information
about their union dues, he briefly mentioned a contract and
told them how many personal days, sick time, and pay raises
they will receive. While talking he held a document in his
hand. He said the contract was negotiated out of the North
Bergen facility but it was pertaining to Newburgh. At the
end of the meeting he handed out union cards and said the
employees had to sign them. An employee asked, ‘‘what if
we do not sign the union cards.’’ Guglielmo replied, ‘‘if we
don’t sign we would not be able to work.’’
Guglielmo also distributed health benefit booklets to the
assembled employees. Holt signed the union membership ap-
plication distributed to him at the meeting. He dated the card
December 16, 1992.
Immediately following the meeting, Holt was present and
heard fellow employee Ricky Williams ask Supervisor
George Walker if it was true what they said, if we did not
sign the union cards that we would not work and Walker re-
sponded that was true. Dues were deducted from Holt’s pay
starting 90 days after he began employment.
The Local 888 Health Fund booklet which Holt received
at the union meeting was later produced and received in evi-
dence. In Holt’s credited testimony, it was the same booklet
as one Holt later received from Pardee at a meeting called
a few months later at which new employees were provided
with the booklets and its contents and the benefits were re-
viewed.
Local 888, the Party in Interest, offered no testimony. Re-
spondent called a number of witnesses in its defense.
Mardis confirmed that while roughly two-thirds of the
management staff for Newburgh were people who had pre-
viously been employed at the North Bergen Distribution
Center, the remaining staff, including all unit employees,
were recruited from outside sources.
Mardis testified that after the three or four information ses-
sions held in November, final candidates were individually
extended job offers by either Pardee or himself in the back
of the room. In his case, Mardis provided a specific starting
date, when and where to report, a specific work schedule and
735CALDOR, INC.
2 Mardis at first used the phrase ‘‘may have the opportunity to
meet with Local 888’’ but later changed it to ‘‘would have the op-
portunity’’ (Tr. 521, 540).
their specific rate of pay. In response to a question as to
whether he discussed anything else with successful appli-
cants, Mardis said no, to the best of his recollection.
As a regional personnel manager for Caldor, he had con-
stant contact with Max Bruny, senior business agent for
Local 888 at the North Bergen Distribution Center. Some-
time in September, Bruny informed him that his boss, Al
Guglielmo, would be greatly interested in organizing the
Newburgh facility. Mardis said, ‘‘I appreciate that and Mr.
Guglielmo is free to give me a phone call.’’ Then, in late
October or early November, Guglielmo telephoned him to
ask permission to come visit the facility. Mardis told him
‘‘when you’re ready to come, give me a call.’’ A week later,
Guglielmo called asking to come by, requesting a tour of the
facility and an opportunity to meet with some of Caldor’s as-
sociates.
Guglielmo came to Newburgh in the second or third week
of November. Security informed him Local 888 representa-
tives had arrived. Mardis met Bruny and was introduced to
other business agents with him including Guglielmo. They
first took a tour and then they asked for an area in the build-
ing to meet (with employees) and Mardis provided such a lo-
cation, on the first visit it was the training room.
Before this visit Mardis informed Caldor supervisors that
Local 888 representatives would be visiting, ‘‘they have to
become familiar with our building and that they, in fact,
want to meet with some of our associates.’’ (Tr. 494.) He
went on, that if they had the opportunity to please allow their
associates to meet with them. When informing the super-
visors, Mardis was aware that Caldor was going to set them
up in the training room and they would be available there.
Mardis denied telling supervisors to tell employees that they
had to attend these meetings.
When asked if he had told Passaro in response to her
questioning him about benefits that the Union had not yet put
together a contract and it would come in later to discuss ben-
efits, Mardis responded he did not recall interviewing
Passaro and, further, did not recall telling this to any em-
ployee. At first Mardis testified he did not recall telling any
employee in a job interview that Local 888 was Caldor’s
union and its representatives would come to discuss issues
with them. After Respondent’s attorney suggested Mardis
had denied saying this, Mardis did deny making such state-
ments (Tr. 498). Yet, Mardis acknowledged that Local 888
was indeed Caldor’s Union, at North Bergen, and many store
locations around New York.
Mardis denied telling Passaro that she had to sign a Local
888 card, or giving her such a card. Mardis testified that
Passaro approached him in the third week of December, say-
ing she had just left the meeting headed up by Al Guglielmo
and you have a lot of very unhappy people on your hands,
that Local 888 was a joke, that the benefits were a joke. She
said they, the union representatives, were very unpro-
fessional, that they were rude and you really need to know
about this. Mardis thanked her for telling him.
The following day, Passaro approached him and asked if
he had done anything about this. Mardis asked her up to his
office to talk. In the office, Passaro said she got the feeling
that she was being singled out and was being intimidated be-
cause she spoke out against Local 888. He told her no, he
wanted to talk about her attitude. He had discussions with
Gene McIntyre, the operations manager, who felt she pos-
sessed a poor attitude. McIntyre had told him she had a lot
of potential and was a good transporter and worked hard, but
she became negative. Mardis told her she had potential at the
Company. He denied giving her or any other employee a
Local 888 card and telling her to sign it. He also could not
recall telling Abbruzzese she had to attend a union meeting,
answering this way twice in succession. Neither could
Mardis recall whether or not he told Abbruzzese and another
employee that the jobs were union jobs and they had to go
with Local 888. When then asked again by Respondent coun-
sel if he had made these statements, Mardis responded, ‘‘no,
I would not.’’ (Tr. 506.) In this instance as well as Mardis’
initial and uninfluenced response to the question about telling
employees that Local 888 was their Union and union agents
would come to discuss benefits with them, I credit his initial
responses and not his later awkward avoidance of a direct
denial. In both cases in denying any recollection Mardis was
seeking to avoid an outright fabrication, and in only one of
the three instances I cite did Mardis utter an outright denial,
after counsel suggested he had already done so. Mardis’
struggle to avoid untruths and misrepresentations led him to
prevaricate, to the extent he could not even recall interview-
ing and offering a job to Passaro, an employee whose pres-
ence and antiunion and later prounion advocacy has played
a central role in this case and Caldor’s and Mardis’ personal
involvement and Caldor’s potential liability. I cannot credit
such a witness and do not do so here.
I have previously credited, generally, Passaro’s account of
their interchanges, among others, and find that her recital ac-
cords much more with the underlying circumstances and
events. For example, an employee of such admitted hostility
and independent stance would not have signed a union card
the day following the Union’s coercive presentation unless
there had been an intervening event of some moment, the
event Passaro described of her personal meeting with Mardis
at which he reminded her of what he had told her and other
employees, of the Union’s status at Caldor and the necessity
of her supporting it if she wished to remain employed. For
the same reasons, Abbruzzese is credited in her version of
her interchanges with Mardis, as is Holt as against Mardis’
denial that he ever told him he had to attend the Local 888
meeting.
During his cross-examination, Mardis was nonresponsive
and evasive when questioned initially about what he told suc-
cessful applicants about benefits when they asked after the
information session when he extended job offers. His re-
sponse was that such discussion was inappropriate through-
out the interviewing process (Tr. 517–581). It was clear that
the question related to the time job offers were made (Tr.
516). Eventually, Mardis replied that he informed successful
applicants who asked about benefits that Caldor has a histori-
cal relationship with Local 888, United Food & Commercial
Workers and that ‘‘you would2 have an opportunity to meet
with them sometime in the future.’’ He noted all of the em-
ployees being hired were on a probationary status for about
90 days. Mardis was not aware of any provision for benefits
for the new employees on completion of the probationary pe-
riod.
736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
It is significant that Mardis responded to benefit inquires
of applicants who would almost immediately be starting
work, with reference to the historical relationship with the
Union recognized at North Bergen and many local stores.
The clear implication of even these admitted remarks were
that the employee benefit package was contingent on Local
888 becoming their bargaining representative. This implica-
tion is strongly reinforced by the total absence of any benefit
plan or arrangement for employees at the time of their hire
independent of a union-negotiated plan. It is also significant
that Mardis here referred to a 90-day probationary period ef-
fective in November, at a time when the memorandum of
agreement refers to a 6-month trial period and the collective-
bargaining agreement’s term of 90 days had ostensibly not
yet been negotiated or agreed on. This is evidence that the
final agreement with the Union had already been reached, if
not fully executed.
Mardis explained that Al Guglielmo met about five times
with employees with his approval. He set aside the training
room for this purpose. He told supervisors to tell employees
that Local 888 was coming to the facility each time
Guglielmo called to say he was coming.
Jean Pardee could not recall interviewing or making a job
offer to Tim Holt, but denied, generally, that she told any
employees while making job offers that this was a union
company and benefits would be union benefits. Pardee testi-
fied she told these employees who asked that she did not
have any specific information on the benefits package.
Pardee previously worked 2 years as personnel manager at
Caldor’s Norwalk, Connecticut store, a year at central head-
quarters, 2 years at the Newburgh facility and, was, at the
time of her testimony, personnel manager at the West Nor-
walk, Connecticut store. At each store and facility, Pardee
had dealings with the Local 888 shop steward and limited
contact with Guglielmo, which increased during her last 6
months at Newburgh which ended in May 1994.
Pardee saw union agents at the Newburgh facility in No-
vember and December 1992, including Guglielmo and
Bruny. On one occasion they were touring the facility with
Mardis, and on another they were in the training room next
to her own office on the first floor, and employees were
coming in and out.
In terms of benefits, at the time job offers were extended
in late October and early November, Mardis informed her he
did not have any specific information about benefits. She fi-
nally learned about benefits for the Newburgh employees in
February 1993 after she was told there had been an election
of the Union and that they would be union associates. I do
not credit Pardee. It is evident that Pardee, through Mardis,
was knowledgeable about the Company’s plan, based on its
prior meetings and negotiations with the Union, and its grant
of permission to meet employees in the facility after their
hire under direction from Caldor’s, that employee benefits
would be determined based on the terms of the agreement
reached with the Union, which could not be legitimately an-
nounced on their hire. Pardee’s comments that she ‘‘had to
assume they would offer Caldor benefits but I wasn’t in a
position nor had I been told that’’ is disingenuous coming
from its personnel manager on the eve of the employees’
hire. Holt’s version of their conversation at his employment
offer, which Pardee could not even recall, is credited.
During the second day of hearing, counsel for the General
Counsel moved to add the names of Chris Kent and Gene
McIntyre as supervisors and agents of Respondent and who,
in addition to Mardis, on behalf of Respondent, instructed
employees to attend union organizational meetings at its fa-
cility in violation of Section 8(a)(1) and (2) of the Act. I
granted the motion as to Kent, but reserved ruling as to
McIntyre, because the witness who had implicated him,
Passaro, had already left the stand and been excused. Later
testimony established McIntyre’s status as supervisor of
Passaro at one time, in responsibly directing her work activi-
ties, and in successfully recommending employee candidates
for hire after interviewing them at second and third stage
interview and Respondent did not dispute his supervisory sta-
tus. Furthermore, McIntyre testified for Respondent and was
examined and cross-examined as to his alleged role in direct-
ing employees, in particular Passaro, to meet with union rep-
resentatives at the facility. Thus, I have no problem now in
granting the General Counsel’s motion to include his alleged
conduct in the case; in the alternative, the issues involving
McIntyre were fully litigated.
McIntyre, who started work with Caldor in August 1992,
was receiving manager at the Newburgh facility at the time
of his testimony. He had been hired for the Newburgh facil-
ity in 1992 but had spent 2-1/2 months at the North Bergen
facility before Newburgh was ready to operate in the fall of
1992. McIntyre was shipping supervisor in December 1992.
According to McIntyre, in early December, Mardis had told
him that Local 888 representatives would be in the building,
but not to get involved with them, they were going to be on
the floor, don’t worry about it. This testimony clearly is in-
complete and misleading since the statement attributed to
Mardis does not include, inconsistent with Mardis’ own testi-
mony, any mention of the fact that the union agents wanted
an opportunity to meet with employees and that McIntyre
should permit employees to do so.
McIntyre denied telling employees that they had to attend
these union meetings. In one instance, he told Frank Scalzo,
a lead associate and warehouse employee under him, who
had asked him if he could go to see the Union, that when
he got finished with the specific project he was working on,
he could go. Terry Passaro did not start working for him
until mid-January 1993. In December, he had an eight-man
shipping staff that worked for him. Thus, according to McIn-
tyre, Passaro did not work for him in mid-December when
she claimed he gave her permission to leave work to attend
the union meeting. Yet, McIntyre did not deny he told her
she could remain on the clock and attend the meeting, but
only that he didn’t remember having such a discussion with
her about the Union. McIntyre did insist in any event, that
he lacked authority to permit her to stay on the clock to at-
tend, and would have had to refer the matter to his super-
visors.
On cross-examination, McIntyre related that during the
interviewing process, in late October and early November,
Mardis told him that if candidates asked about benefits, refer
them to personnel because none of that’s resolved yet. McIn-
tyre concluded the benefit package hadn’t been put together
yet.
During the hearing, I sustained Respondent objection made
to inquires of certain General Counsel witnesses regarding
whether they were on breaktime during their attendance at
737CALDOR, INC.
union meetings held at the Newburgh facility. At the time,
I concluded that whether these meetings were held on work-
ing time was legally significant and should have been plead-
ed in the complaint and was not. I have reexamined these
rulings and now conclude that the time of the meetings is
rather a matter of evidence in support of the complaint alle-
gation. I find it unnecessary to reverse these rulings however,
since it is clear on this record in light of Passaro’s testimony
made without objection that she attended while on worktime,
as well her and other employee witnesses’ testimony that the
union meetings consumed 1-1/2 hours or more of time, at
least an hour of which was during their normal workday, that
the meetings took place during the employees’ regular work-
day, during which time they were excused, indeed directed,
to attend.
McIntyre’s testimony that he was not Passaro’s supervisor
at the time she claimed she sought his permission to attend
during a scheduled assignment, is not credited. McIntyre’s
testimony and Respondent’s evidence is not specific or de-
tailed enough to satisfy its burden on this point. Passaro tes-
tified that although she started in bulk breakdown, a receiv-
ing function, on a 7:30 a.m. to 3:30 p.m. shift, after a week,
by the end of November, she had been transferred into the
shipping department as a transporter, onto an 8:30 a.m. to
4:30 p.m. shift. Respondent later produced no evidence, in-
cluding records, to dispute this. Later, apparently by some-
time in December, she became a loader on the shipping
dock. McIntyre was shipping supervisor in December.
Passaro testified her conversation with McIntyre took place
on the shipping dock floor. If McIntyre was not supervisor
of employees on the shipping floor he did not so testify. Fur-
thermore, Passaro also testified that the whole shipping de-
partment was going to the union meeting held at 3:30 p.m.
on December 17. Neither McIntyre nor Mardis testified to
any other supervisor or person in authority in shipping whom
Passaro could consult about her attendance. Thus, McIntyre’s
testimony that he was in charge of the shipping staff, consist-
ing then of eight males, is not determinative of his relation-
ship to Passaro as a shipping department employee starting
in December. Finally, whether or not McIntyre had authority
to release employees to attend, he did not dispute Passaro’s
testimony that he did so, but only that he could not recall
doing so. Passaro, whose testimony, generally, has been ear-
lier credited, is credited here as to her conversation with
McIntyre.
Christopher Kent, in December 1992, was freight super-
visor, in charge of 15 or 16 employees who were assigned
to break down incoming freight for shipment out to various
stores. At the time there was little incoming freight, so Kent
was primarily training people to operate machinery. Interest-
ingly, while Kent placed Passaro as one of the employees
originally assigned to his group, he noted that they weren’t
working directly for him in November/December 1992, but
were working in other departments doing different tasks, in-
cluding spending the day with Gene McIntyre, learning how
to drive transporter machines, a function which Passaro
credibly testified she took on a regular basis at the beginning
of December. Abbruzzese had been assigned as his lead as-
sociate when he started at Newburgh in November but she
didn’t really begin functioning as such until probably begin-
ning in January 1993. At the time of the hearing Kent was
the warehouse management systems manager. While Re-
spondent denied Kent’s supervisory status at the time his
name was added to the complaint, I conclude that the record
supports such status for him. Respondent’s real defense is to
his inclusion as an agent to instruct employees to attend
union meetings at the facility.
Kent denied having any conversation with Abbruzzese
about attending a union meeting at the Newburgh facility, or
directing her, or hearing Mardis direct her, to attend. He
could not recall whether any employees asked him whether
they could attend such a meeting or having any of his subor-
dinate employees attend. In view of Mardis’ testimony re-
garding his instructions to the supervisory staff to permit em-
ployees to attend the union meetings, I conclude, that Kent’s
recollection is faulty and, further, I find, contrary to Kent’s
negative response, that in December he did, indeed, inform
Abbruzzese, as his leadperson, that someone from the Union
would be coming to the facility to talk to them, and, later
that month, was present with Mardis when they directed the
receiving staff to attend a union meeting at 2 p.m.
Kent struck me, particularly from his account of being a
new supervisor in a brand new building and anxious to suc-
ceed, that he would have taken special pains to satisfy the
concerns of his superior, Personnel Manager Mardis, that the
receiving employees attend the union meeting, listen to the
union presentation, and support the Union so that its de-
mands for an agreement would be supported by a majority
showing. While Kent wanted to concentrate on his function-
ing in the workplace he had to take account of these em-
ployer interests.
George Walker, whose name was also added to the com-
plaint, over Respondent’s objection, as a supervisor under the
Act and an agent of Respondent acting on its behalf, was a
first stage interviewer for Respondent in October. In the pe-
riod of October–December 1992, Walker was operations
manager for the Newburgh facility. Respondent did not dis-
pute his supervisory status, but only the timing of the amend-
ment to the complaint.
He had learned from conversations with Mardis that Local
888 representatives would be at the facility in mid-December
to talk to the employees. Mardis did not tell him that he had
to tell employees to attend those meetings.
As operations manager, he had infrequent direct contacts
with employees. He denied having any conversation with an
employee during which he was asked what would happen if
they didn’t sign a card for Local 888 or told an employee
he would be fired if he didn’t sign.
Walker, hired in December 1990, had worked first at the
North Bergen facility as its operations manager before trans-
ferring in June 1992 to Newburgh. While at North Bergen,
he had met Max Bruny and another Local 888 representative
when they had come, on occasion, to meet employees.
At Newburgh, he ran the entire distribution center over-
seeing all the departments and their supervisors. In this ca-
pacity, he regularly made rounds of the departments, met su-
pervisors and employees to make sure the operations were
functioning properly, supervisors were motivated, and em-
ployees were performing.
While he was aware the union agents were present to meet
employees, he had no idea why and did not see employees
going to the meeting room. I find this testimony unworthy
of belief in view of his status as an upper level executive
for Respondent, his knowledge of the Union’s presence at
738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the facility in December, and the degree to which the meet-
ings with employees, consuming as I have found, from 1–
2 hours during the workday, would be naturally disruptive of
an efficient and productive working environment which it
was his responsibility to foster and establish.
Walker recalled an employee named Ricky Williams, but
not his specific department.
I credit Holt that in his presence Walker confirmed to fel-
low employee Williams that it was true—if they, the employ-
ees, did not sign the union cards they couldn’t work.
Following the series of union meetings with employees at
the Newburgh facility, in late December 1992, Al Guglielmo
of Local 888 advised Witt that the Union represented a ma-
jority of Respondent’s warehouse employees employed at the
facility. Thereafter, on December 30, Witt met with
Guglielmo to check the cards. After checking the cards, Witt
determined that a majority of warehouse employees at the
Newburgh facility had authorized Local 888 to represent
them for the purpose of collective bargaining and signed,
along with Guglielmo, a certification of these results of the
card check, listing 100 eligible employees and 74 valid union
authorization cards, acknowledging the Union’s majority rep-
resentative status and recognizing it for purposes of bargain-
ing. Following several bargaining sessions held in January
1993, a contract was signed on January 31, retroactive to No-
vember 1, 1992, and effective to February 1, 1996, contain-
ing, inter alia, union-security and checkoff clauses. Later, a
sick leave provision was added amending the agreement
which was then reexecuted in February 1993.
Analysis and Conclusions
In Farmers Energy Corp., 266 NLRB 722, 723 (1983), the
Board has stated the test it applies in weighing whether un-
lawful assistance has been rendered to a union, in the follow-
ing terms:
In assessing the impact of a respondent’s assistance
to a union, the Board examines the totality of cir-
cumstances to determine whether the respondent’s con-
duct tainted the union’s majority status. The totality of
circumstances consists of post-recognition as well as
pre-recognition conduct of a respondent. See Siro Secu-
rity Service, Inc., 247 NLRB 1266, 1271–1273 (1980).
The Board noted further, in the same case, that the Su-
preme Court expressly endorsed the similar view that in such
cases, events cannot be separated ‘‘artificially from their
background and consequences, and from the general contem-
poraneous current of which they were integral parts.’’ Ma-
chinists Local 35 (Serrick Corp.) v. NLRB, 110 F.2d 29, 35
(D.C. Cir. 1939), affd. 311 U.S. 72, 78 (1940).
Here, the memorialization of the understanding arrived at
between Witt and Guglielmo even before the opening of the
Newburgh facility was shortly followed by the announcement
to employees who specifically asked on their appointment to
the work force that their benefits, even their pay, was subject
to agreement between the Union and Caldor and they would
shortly have an opportunity to meet with the Union to dis-
cuss and learn about these matters and their specific terms
of employment. I conclude that these facts support the con-
clusion that even before the opening of the facility Caldor
had granted recognition to Local 888 and many, if not all,
of the terms and conditions of the employees’ employment
had already been agreed upon subject to the Union’s ability
to obtain membership applications from a majority of em-
ployees under circumstances in which they would be in-
formed that Local 888 was Caldor’s union, an understanding
regarding their conditions of employment had already been
reached with that Union, and they would be required to join
it or suffer the loss of their jobs, all in violation of the Act.
Ryder System, 280 NLRB 1024, 1046 (1986); Meyer’s Cafe
& Konditorei, 282 NLRB 1, 2 (1986); R. J. E. Leasing
Corp., 262 NLRB 373 (1982).
Mardis’ conversation to this effect with Passaro and
Abbruzzese at the time of their offers of employment, refer-
ring them to the Union for their benefit package, was subse-
quently reinforced when Guglielmo informed them at union
meetings they each were instructed to attend in the facility
on working time, that Local 888 was Caldor’s Union, that it
had an agreement with Caldor providing certain specified
terms and benefits and they would be required to join timely
at the cost of their job. Mardis reemphasized the working
conditions and union obligations to Passaro on the occasion
of his tongue-lashing of her for exhibiting such negativism
and independence the day following the union meeting she
attended.
Guglielmo’s coercive directions to employees to sign
union cards or face ultimate termination was reinforced not
only by Mardis to Passaro, but also to employees Thomas
Holt and Ricky Williams by another Caldor manager, George
Walker, immediately following their attendance at another
union meeting with Guglielmo which they were required to
attend during the workday.
These facts support the conclusion that Caldor and Local
888 had unlawfully conspired to deprive employees of their
Section 7 rights to a free choice of bargaining representative.
They also support the conclusion that in addressing captive
employees in the Newburgh facility who had been earlier re-
ferred by Respondent to the Union to learn their terms of
employment, Guglielmo gave every appearance of speaking
not only on behalf of Local 888, but also on behalf of
Caldor. Even if his comments were not expressly authorized,
Guglielmo was speaking to its employees as Caldor’s agent
when he informed them of their terms and benefits, the
Union’s status as their exclusive representative and their ob-
ligation to join and support it with their dues.
As the circuit court has noted in NLRB v. Arkansas-Louisi-
ana Gas Co. 333 F.2d 790 at 795 (1964), ‘‘In determining
responsibility for union activities, the principles of agency
and its establishment are to be construed liberally.’’ In Ma-
chinists v. NLRB, 311 U.S. 72, 80 (1940), the Court said,
‘‘The employer, however, may be held to have assisted the
formation of a union even though the acts of the so-called
agents were not expressly authorized or might not be attrib-
utable to him on strict application of the rules of respondeat
superior.’’
Because of their existing relationship, Mardis, in particu-
lar, had engaged Guglielmo as Caldor’s agent in making his
presentation to its employees, and such presentation was
within the general scope of his agency authority, even though
Caldor and Mardis may not have authorized the specific acts
in question. Alliance Rubber Co., 286 NLRB 645, 646
(1987) (nonemployee, third-party polygraph examiners held
to be special or limited purpose agents authorized to conduct
739CALDOR, INC.
a single transaction or series of transactions not involving
continuity of service. Restatement 2d, Agency, Sec. 3(2)
(1958), cited in Davlan Engineering, 283 NLRB 803 (1987)).
Furthermore, Guglielmo was acting with apparent authority
in addressing the employees. Under this doctrine, Caldor
through the conduct of its managers will be held responsible
for actions of its agent, when it knew or should have known
that its conduct in relation to the agent is likely to cause
third parties, in this case, the employees, to believe that the
agent has authority to speak for it. Restatement 2d, Agency
Sec. 27. Id. at 646; MGR Equipment Corp., 272 NLRB 353
(1984); Ryder System, 280 NLRB 1024 (1986). As the Board
observed in West Bay Maintenance, 291 NLRB 82 (1988),
‘‘either the principal must intend to cause the third person
to believe that the agent is authorized to act for him, or the
principal should realize that this conduct (the principal’s
manifestations to the third party) is likely to create such be-
lief.’’ 291 NLRB at 83. See also Alleghany Aggregates, 311
NLRB 1165 (1993), citing and quoting from West Bay Main-
tenance with approval. (Involving binding statements of non-
employee, third party ‘‘outsider,’’ to whose conduct, the
same standard is applied, 311 NLRB 1165 at fn. 3.)
Apart from the conclusion I draw that Guglielmo’s con-
duct bound Caldor as well as Local 888, the nature and con-
tent of his solicitations of union membership and authoriza-
tion cards is an inquiry central to Caldor’s defense that it
only recognized and entered an agreement with Local 888
after the Union had established its majority representation
among unit employees. Thus, the testimony of employees at-
tributing the remarks made to them by Guglielmo prior to,
and which induced them, to execute union membership and
dues-checkoff applications is highly relevant to this proceed-
ing. Accordingly, for all the reasons I have now reviewed,
I deny Respondent’s motion to strike the multiple employee
testimony of Guglielmo’s comments made at the union meet-
ings he addressed at the facility—a motion on which I had
previously reserved decision.
It is clear that Guglielmo’s December 1992 fraudulent in-
ducements, claiming an agreement with Caldor, its status as
Caldor’s Union, recognized as exclusive representative for
Newburg employees, and requiring the employees to join and
financially support it or suffer their termination taint all of
the cards subsequently executed by the employees, on the
basis of the submission of which by the end of the month,
Caldor officially recognized it and later executed a full
agreement with it, including, inter alia, union-security and
dues-checkoff provisions. Brown Transport Corp., 296
NLRB 552 (1989); Meyers Cafe & Konditorei, supra;
Safeway Stores, 226 NLRB 944 (1985).
The cards having thus been tainted, Caldor’s recognition
of the Union on the basis of them was unlawful. Respondent
also subsequently violated Section 8(a)(1), (2), and (3) of the
Act by entering into a collective-bargaining agreement with
the Union and applying the terms of that agreement at a time
when the Union did not represent an uncoerced majority of
its employees. Jayar Metal Corp., 297 NLRB 603 (1990);
Meyer’s Cafe & Konditorei, supra.
CONCLUSIONS OF LAW
1. Respondent Caldor, Inc. is an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Local 888, United Food & Commercial Workers Union,
AFL–CIO is a labor organization within the meaning of Sec-
tion 9(b) of the Act.
3. By granting recognition to Local 888 as the exclusive
collective-bargaining representative of its full-time and regu-
lar part-time warehouse employees employed at its New-
burgh, New York facility at a time before the facility had
opened for operations and before any employees had been
employed in its operations, by informing its employees and
candidates for employment that their employment benefits
would be determined by Respondent in conjunction with
Local 888, and that Local 888 would represent them, by
making its premises available for organizational meetings by
Local 888 and instructing employees at its Newburgh, New
York facility to attend such meetings and on working time,
by instructing its employees to join and support Local 888
as a condition of continuing to remain employees, and by in-
structing its employees to sign authorization cards on behalf
of Local 888, Respondent has been rendering unlawful assist-
ance and support to a labor organization in violation of Sec-
tion 8(a)(1) and (2) of the Act.
4. By entering into a collective-bargaining agreement with
Local 888 as the exclusive bargaining representative of its
employees in the above-described appropriate unit, and by
applying and enforcing the agreement and especially by giv-
ing effect to its union-security provision and to authoriza-
tions executed by its employees pursuant to the agreement’s
dues-checkoff provision causing dues, initiation, and assess-
ment fees to be deducted from employees’ pay, at such times
as Local 888 did not represent an uncoerced majority of the
employees in the unit, Respondent has thereby encouraged
membership in a labor organization and discriminated against
employees with regard to their hire or tenure or terms and
conditions of employment in violation of Section 8(a)(1), (2),
and (3) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1), (2), and (3) of the
Act, I shall recommend that it cease and desist therefrom and
that it take certain affirmative actions which are necessary to
effectuate the policies of the Act. In particular, I will rec-
ommend that Respondent be ordered to withdraw recognition
from Local 888 as the exclusive collective-bargaining rep-
resentative of its employees in the appropriate unit described
unless and until that Union is certified as the exclusive rep-
resentative of the employees in the unit. I shall also rec-
ommend that Respondent cease and desist enforcing and
maintaining the collective-bargaining agreement it entered
with Local 888, effective from November 1, 1992, to and in-
cluding January 31, 1996, or any extension or modification
thereof, and that Respondent reimburse all of its present and
former employees employed in the unit for any dues, initi-
ation fees, and assessments deducted from their pay pursuant
to the collective-bargaining agreement. Such monetary
amounts are to be computed with interest thereon in accord-
740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
ance with New Horizons for the Retarded, 283 NLRB 1173
(1987).3
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Caldor, Inc., Newburgh, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Granting recognition to Local 888, United Food &
Commercial Workers Union, AFL–CIO, or any other labor
organization, as the exclusive collective-bargaining represent-
ative of its full-time and regular part-time warehouse em-
ployees employed at its Newburgh, New York facility at a
time before the facility had opened for operations and before
any employees had been employed in its operations.
(b) Recognizing and negotiating with Local 888 as the ex-
clusive representative of its employees for the purpose of
collective bargaining unless and until such labor organization
is certified by the Board as the exclusive representative of
the employees pursuant to Section 9(c) of the Act.
(c) Enforcing or giving effect to its collective-bargaining
agreement with Local 888 or any extension, renewal, or
modification thereof or any superseding agreement, and giv-
ing effect to its union-security provision and to authoriza-
tions executed by its employees pursuant to its dues-checkoff
provision causing dues, initiation fees, assessments, or any
other moneys to be deducted from employees’ pay and remit-
ted to Local 888, provided that nothing in this Order shall
require the withdrawal or elimination of any wage increase
or other benefit or terms or conditions of employment which
may have been established pursuant to such agreement.
(d) Informing its employees and candidates for employ-
ment that their employment benefits would be determined by
Respondent in conjunction with Local 888 and that Local
888 would represent them.
(e) Making its premises available for organizational meet-
ings by Local 888 and instructing employees at its New-
burgh, New York facility to attend such meetings and on
working time.
(f) Instructing its employees to join and support Local 888
as a condition of retaining employment and to sign authoriza-
tion cards on behalf of Local 888.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Withdraw and withhold recognition from Local 888,
United Food & Commerical Workers Union, AFL–CIO as
the exclusive collective-bargaining representative of its full-
time and regular part-time warehouse employees employed at
its Newburgh, New York facility, unless and until the labor
organization has been duly certified by the Board as the ex-
clusive representative of such employees.
(b) Reimburse all present and former employees for all ini-
tiation fees, dues, assessment, or any other moneys which
may have been paid to Local 888 pursuant to the union-secu-
rity and dues-checkoff agreements between it and that Union,
with interest.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of dues and any other moneys to be repaid
under the terms of this Order.
(d) Post at its warehouse facility in Newburgh, New York,
copies of the attached notice marked ‘‘Appendix.’’5 Copies
of the notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.