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    Labor Relations and NLRB Decisions: 1996 - Present, CALDOR, INC. and SHAWN SMITH ET AL., National Labor Relations Board, (Nov 24, 1995)

    319 NLRB No. 94.Case No. 2-CA-26441, November 24, 1995, Robert T. Snyder, Administrative Law Judge.

    Headnote

    Assistance to Unions: Coercion of Employees: Threatened Dismissal.–

    When the managers of a company told recently hired employees that they had to sign union cards or lose their jobs, the company showed unlawful favoritism toward the union and interfered with employees' rights under the NLRA. The employer further informed its employees that they would be required to attend union meetings on company time. In addition, it said to employees and candidates for employment that their employment benefits would be determined by the employer in conjunction with the union. Section 8(a)(2).

    See ¶3545.35.

    Headnote

    Domination of Unions: Recognition of Minority Union: Failure to Hold Election.–

    An employer dominated the union organization process granting recognition to a particular labor union before the employer's facility had opened for operations and before any employees had been employed. The employer demonstrated its unlawful domination of the union by applying and enforcing an agreement between the union and itself, and by giving effect to the agreement's union-security provision. The employer also authorized the agreement's dues-checkoff provision causing dues, initiation, and assessment fees to be deducted from employees' pay, even though the union local did not represent an uncoerced majority of employees. Section 8(a)(2).

    See ¶3545.60.

    Ruth Weinreb, for General Counsel. Winifred D. Morio (Putney, Twombly, Hall & Hirson) for Respondent. Patricia McConnell (Vladeck, Waldman, Elias & Engelhard, P.C.) for Party in Interest.

    Before Gould, Cohen and Truesdale.

    From Text of Board's Decision

    On June 29, 1995, Administrative Law Judge Robert T. Snyder issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions, a supporting brief, and an answering brief to the Respondent's exceptions.

    ***

    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, [1] and conclusions as modified below and to adopt the recommended Order as modified.

    We affirm the judge's findings of violations of Section 8(a)(1), (2), and (3) of the Act. Although the complaint 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 authorization 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 additional 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 objected 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 Respondent's regional personnel manager of the distribution division. Mardis stated that he had walked by the conference 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 authorization card.

    In the context of this case, where the Respondent, inter alia, violated Section 8(a)(2) by unlawfully granting 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 employees [2] Because Mardis also gave Passaro an authorization card to sign on the Union's behalf, we conclude that this assistance to the Union, in context, constituted 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 Conclusions 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 before any employees had been employed in its operations, 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 authorization 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.”

    Footnotes

    1

    The Respondent has excepted to some of the judge's credibility findings. 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. [19 LC ¶66,308] 188 F.2d 362 (3d Cir. 1951).

    The Respondent contends that the judge erred in crediting testimony by three former employees on the ground that they gave inconsistent 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, [1993-94 CCH NLRB ¶15,157] 313 NLRB 74, 85 (1993).

    3

    See e.g., Famous Castings Corp., [1991-92 CCH NLRB ¶16,448] 301 NLRB 404, 407 (1991).

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