Two Guys Discount Department Stores

National Labor Relations Board - Board Decisions

Mar 15, 1979

241 N.L.R.B. 64 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vornado, Inc., d/b/a Two Guys Discount Department
Stores and Retail Clerks Union Local 888, Retail
Clerks International Union, AFL-CIO.' Cases 29-
CA-5687, 29-CA-5405, and 29-CA-5799
March 15, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On October 4, 1978, Administrative Law Judge
John M. Dyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified below.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Vornado, Inc., d/b/a Two
Guys Discount Department Stores, Coram, Long Is-
land, New York, its officers, agents, successors, and
IThe name of the Union appears as amended at the hearing.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). we have carefully examined the
record and find no basis for reversing his findings.
The Administrative Law Judge stated that Respondent filed a motion in
which all parties concurred to strike and to expunge physically certain por-
tions of the record. While granting the motion to strike, the Administrative
Law Judge referred the motion to expunge to the Board, noting that nothing
in the Board's Rules and Regulations empowered him to delete materials
physically from the record. We hereby deny the motion inasmuch as no
party has alleged that any prejudice will result from a failure to expunge, and
we find no reason in this case to delete material physically from the tran-
script.
3 The Administrative Law Judge found that Supervisor Roger Nagel's dis-
cussion with employee Lorraine Libynski, regarding the technical infraction
notice issued to her because of her participation in Board proceedings, con-
stituted harassment in violation of Sec. 8(aXl) of the Act. Further, the Ad-
ministrative Law Judge implicitly found that Cash Operations Manager
Louis D'Angelo harassed employee Lois Tetrault by interrogating her con-
ceming statements she gave to Board agents. we agree with these findings.
However, we also find that D'Angelo's questioning of Tetrault was unlawful
interrogation in violation of Sec. 8(aX ) of the Act, and we shall modify the
Order and notice to reflect this finding.
assigns, shall take the action set forth in said recom-
mended Order, as so modified:
1. Substitute the following for paragraph (c):
"(c) Interrogating employees about their own
union sentiments and activities and those of other em-
ployees or about information they gave to or may
give to agents of the National Labor Relations
Board."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Following a hearing in which the Company, the
Union, and the General Counsel of the National La-
bor Relations Board participated and offered evi-
dence, it has been found that we violated the Na-
tional Labor Relations Act, as amended. We have
been ordered to post this notice and to abide by what
we say in this notice.
WE WILL NOT question employees about their
union sentiments or activities or those of other
employees or about information they gave to or
may give to agents of the National Labor Rela-
tions Board.
WE WILL NOT threaten employees with the loss
of benefits or employment or with reprisals if
they support the Union.
WE WILL NOT create the impression of surveil-
ling the union activities of employees.
WE WILL NOT actually surveil the presence of
our employees at union meetings or activities.
WE WILL NOT harass employees who are under
subpena to testify at NLRB proceedings.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed under Section 7 of the
Act.
WE WILL offer Lois Tetrault, Trudy Zotto, and
Kathleen Wagner immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed, and reim-
burse them and Lorraine Libynski for the pay
they lost as a result of overaction.
WE WILL remove from the personnel or other
files of our employees and destroy the Corrective
Discussion Notice issued to Kathleen Wagner
and Lorraine Libynski.
VORNADO, INC., D/B/A Two GuYS DIS-
COUNT DEPARTMENT STORES
241 NLRB No. 10
64
TWO GUYS DISCOUNT DEPARTMENT STORES
DECISION
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: Retail Clerks
Union, Local 888, Retail Clerks International Union, AFL-
CIO, herein called the Union, filed a charge in Case 29-
CA-5405 on January 10, 1977,' amended on January 17,
which alleged that Vornado Inc., d/b/a Two Guys Dis-
count Department Stores, herein called the Company or
Respondent, violated Section 8(a)(1) and (3) of the Act. The
complaint in this case, issued on March 16, contained
8(aX I) allegations concerning Respondent's conduct by sur-
veillance and impressions of surveillance and various
threats and alleging Respondent violated Section 8(a)(3) of
the Act by suspending employee Kathleen Wagner on two
occasions and by discharging her. The complaint was later
amended on June 21 to allege the suspension of employee
Lorraine Libynski as an 8(a)(3) violation.
The Union filed a charge against Respondent in Case 29-
CA-5687 on June 3. In addition to some topics recited in
the first case, this charge alleged that Respondent harassed
employee Trudy Zotto on May 13 by issuing a corrective
discharge notice (C.D.N.) to her. The complaint in this case
was issued on June 21 and alleged in addition to the harass-
ment of Zotto, that various supervisors had engaged in in-
terrogation, surveillance and impressions of surveillance,
threats of discharge, and warnings not to associate with
union adherents. An order consolidating the complaints in
these two cases was issued by the Regional Director on
June 24.
On July 29, the Union filed a charge against Respondent
in Case 29-CA-5799 concerning the discharge of Trudy
Zotto on July 28. This charge was amended on August 3 to
add the discharge of Lois Tetrault on July 29. The com-
plaint was issued on this charge on August 29 by the Acting
Regional Director, alleging that the two discharges violate
Section 8(a)(1), (3), and (4) of the Act and that various
supervisors interrogated employees and gave the impression
that their union activities were surveilled. An Order by the
Regional Director consolidating this complaint with the
prior two cases was issued on September 23.
Respondent's timely answers to these complaints admit-
ted the service and commerce allegations and the status of a
number of individuals as supervisors, but denied that Re-
spondent had violated the Act in any manner.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearings held in Brooklyn, New York, on October 31
through November 4 and from November 14 through 17,
1977. The parties filed extensive briefs which have been
received and considered.
Stating that all parties concurred, Respondent filed a mo-
tion to physically delete from the record certain lines and
pages contained in the transcript. While I may grant a mo-
tion to strike certain things present in the transcript, I find
nothing in the Board's Rules and Regulations which gives
me the power to strike those matters physically from the
I Unless specifically stated otherwise, the events herein took place in the
latter part of 1976 and the first 9 months of 1977.
transcript. While granting the motion to strike, I pass on to
the Board for their disposition the balance of the motion to
physically strike these specific items from the transcript.
The General Counsel's unopposed motion to correct the
transcript is granted.
There are many 8(a)(1) allegations in these consolidated
cases as well as 8(a)(3) allegations. An assessment of the
evidence leads me to conclude that Respondent engaged in
an antiorganizational campaign, including discharging
principal union proponents and harassing other employees
in an effort to forestall union support by employees. Some
of the allegations of 8(aX 1) were not specifically denied and
Respondent witnesses having direct knowledge of certain
events were not produced. Where there are credibility con-
flicts, I have credited the General Counsel's witnesses be-
cause their stories were more consistent, direct, and
straightforward, and in most instances were corroborated
by other witnesses, including some of Respondent's wit-
nesses. A significant proportion of Respondent's testimony
consisted of secondhand reports rather than the testimony
of knowledgeable witnesses and did not meet the testimony
of General Counsel witnesses.
On the entire record in this case, including the exhibits
and testimony, the contradictions in testimony, and on my
evaluation of the reliability of the witnesses based on their
demeanor and the evidence, I make the following:
FINDINGS OF FACT
1. COMMERCE FINDINGS AND UNION STATUS
Respondent is a Delaware corporation with its principal
office in Garfield, New Jersey, owning and operating retail
discount department stores in New Jersey and New York.
Respondent's Coram, Long Island, New York, store is the
only facility in this proceeding. Respondent annually re-
ceives gross revenues in excess of $50,000 and purchases
goods and materials valued in excess of $50,000, which it
receives directly from outside the States where its busi-
nesses are located.
Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits, and I find, that the Union herein is a
labor organization within the meaning of Section 2(5) of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
The headquarters of Respondent's East Coast operations
is in Garfield, New Jersey. Respondent operates some dis-
count stores in New Jersey which are under union con-
tracts. A new store was built for Respondent in Coram,
Long Island, and Respondent advertised for prospective
employees in early July. According to some of the General
Counsel's witnesses, who were applicants at the time, a tre-
mendous volume of applicants showed up. Prospective em-
ployees filled out applications and some were interviewed at
the time. Persons employed were subject to a lie detector
65
DIE(CISIONS OF NATIONAL LABOR RELATIONS BOARD
test and employed during July. The employees helped to
complete the store, stocked the shelves with goods, and
were given some training courses.
A new type of cash register made by Sweda was installed
at the checkout counters of the Coram store. These cash
registers are tied directly to a computer and perform an
inventory function in addition to regular cash register func-
tions. One of the cash registers at the checkout end was
specifically set up to give discounts for employee purchases.
Another cash register was located at the courtesy desk
which is near the cash operations office near the rear of the
store. Employees were able to make their purchases at the
employee register at the front of the store or at the courtesy
desk and receive their discounts.
When the Coram store had its grand opening in August
1976, Richard Dixon was the general store manager and
remained in that position for all periods pertinent to this
case. Louis D'Angelo was the operations cash manager who
was in charge of the cash office and the financial operations
of the Coram store. He remained in that position from the
opening of the store until June 1977 when he was trans-
ferred to another Respondent store which opened at New
Hyde Park, Long Island. He was replaced by Steve Schiac-
chitano. Joseph Cipriano was the seasonal section manager
and a supervisor and remained in that position through all
periods pertinent to this case. Luigi Bove was an assistant
store manager at the Coram store until he was transferred
during the summer of 1977 to Respondent's New Hyde
Park store. Roger Nagel was an assistant in operations and
was placed in that position at Coram around January 1977.
Joseph Delaney was a section manager of the Coram store.
Norena Baird was the personnel head at the Coram store
until late in 1977, and she reported to Respondent's area
representative Douglas Douglas who was later replaced by
Kenneth Barckett. The personnel department came under
Joseph Scarlett who was the East Coast personnel manager
and was stationed at Garfield, New Jersey.
The Union began organizing activities at the Coram store
in the fall of 1976 by passing out leaflets and shopping bags,
seeking some response from employees. Respondent was
aware of the Union's activity and issued a memorandum to
its employees warning them of the serious implications of
signing union authorization cards. Store Manager Dixon
and Cash Operations Manager D'Angelo told employees
that employees who signed authorization cards would lose
certain of their rights as employees and that the employees
did not need to join the Union to get the benefits that they
were receiving and that their benefits were the same as the
employees at the unionized stores in New Jersey.
When Respondent began its operations at Coram there
was a local ordinance restricting operations of various busi-
nesses on Sunday. Respondent's business hours were such
that it needed both full- and part-time employees. Full-time
employees worked during the daytime hours while part-
time employees worked evening hours and Saturdays. Some
employees, usually on a rotating basis, worked Sundays as
well. Respondent started its store with over 200 employees
and gradually cut down to approximately 190 employees
during the times pertinent to this case. Respondent began
opening on Sundays and apparently was successful in its
contesting of the local "Blue Law."
The alleged 8(a)(3)'s in this case were either cashiers,
head cashiers, or employees of the cash office and were all
part-time employees. The three employees who were dis-
charged, Kathy Wagner, Trudy Zotto, and Lois Tetrault,
were married with some family responsibilities and sought
and obtained part-time employment from Respondent at
the Coram store. Lorraine Libynski, who was suspended by
Respondent, was employed by Respondent as a part-time
cashier.
Depending upon the volume of business, Respondent
would have all or some of the cash registers at the front end
operating with cash register operators. These cashiers were
under the direction of a head cashier and there were usually
two head cashiers appointed for each shift. The principal
head cashier or runner would act in this capacity except
when she was off the floor or busy for various reasons and
then a second head cashier, usually junior to the head cash-
ier, would operate as a runner as well. At times they would
both act as head cashiers. When the second head cashier
was not needed in that capacity, she would normally oper-
ate a cash register. Thus there were two runners or head
cashiers for the day shift as well as two runners or head
cashiers for the evening shifts at all times. The head cash-
iers would have the responsibility of assigning cashiers to
cash registers, assisting in approving checks, and would re-
move unused cash register drawers and transport them to
the cash office. Runners would inspect checks to see if the
cashiers had completed the necessary information, that an
authorization from the courtesy office was received, and if a
check exceeded a specified amount, they were supposed to
photograph the customer as well as have the cash office
check with the bank to make sure such an account existed.
At times during a shift, "pulls" would be made by an
employee of the cash office bringing a rolling safe to the
front of the store and removing amounts of money from
cash registers, noting the cash registers from which those
amounts were taken. When the store was closed for the
evening, the register drawers would be taken to the cash
office where final tabulations would be made by the cash
office personnel and the register tapes and amounts of
money would be tabulated and checked out.
The cash registers would note on the tape and in the
computer whenever the cash drawer was opened. If a regis-
ter was not working properly, a "pop" key might be used to
open the cash register drawers. "Pop" keys were kept in the
safe in the cash office, and only certain persons were autho-
rized to use them. Since the operation of the Sweda ma-
chines was somewhat new, a Sweda cash register employee
was on the premises at various times and could also get into
the cash registers to repair them.
When the cash register employees were trained by D'An-
gelo, they were given a manual. According to the employ-
ees, D'Angelo went through the manual with them, reading
the various sections, and stating that some of the proce-
dures were standard and some did not apply since they
were using new equipment. One illustration in the manual
was that of a check, and on it certain things were noted that
the employees should look for. The check contained an im-
printed name, but the manual did not specify that this was
one of the things the employees must check before approv-
ing a check.
66
TWO GUYS DIS(COUNT DEPARTMENT STORES
Kathleen Wagner was hired as a part-time cashier, as
were Lorraine Libynski, Lois Tetrault, and Trudy Zotto.
Tetrault attended cash register training only briefly because
her prior experience with cash operations was noted and
she was moved to the cash office under D'Angelo, in charge
of the cash office in the evenings in a nonsupervisory cate-
gory. Zotto received practically no cashier training and was
placed in the sign shop.
Wagner, after operating as a cashier for a short time, was
made a head cashier junior to Lori Pinata on the evening
shift on the days she worked.
Wagner and Libynski were attracted to the Union and
started attending union meetings in the early fall of 1976.
Wagner and Libynski talked about the advantages of the
Union to other employees during breaktimes. Trudy Zotto
became interested in the Union during November and
thereafter attended union meetings.
D'Angelo, who had told Tetrault that he relied on her to
run the cash office in the evening and got her a raise for that
position so that he could get away from the store, ques-
tioned Tetrault during October and November concerning
the Union, asking if she had heard of any union talk or of
any union meetings and if she knew how many of Respon-
dent's employees were interested in the Union. He told Tet-
rault that the employees at Coram were receiving the same
benefits as the unionized employees in Respondent's New
Jersey stores and would get no benefits from joining this
Union. D'Angelo did not specifically deny Tetrault's testi-
mony and I credit her that it occurred.
When Tetrault was moved into the cash office, she
worked some Sundays when the store was just getting
started, but told D'Angelo that her work on Sundays cre-
ated a number of problems with her personal life and said
that she could not work Sundays any more and offered to
resign. D'Angelo told her that there would be no problem
in her not working Sundays, that he needed her to run the
cash office in the evenings, that she was invaluable to him,
and that he could get others to work on Sundays because
Sunday was a premium payday.
In September or October, D'Angelo was losing one of the
cash office employees and heard that sign shop employee
Trudy Zotto had experience in handling cash and ap-
proached her about moving into the cash office. Zotto told
D'Angelo that she liked the sign shop because there, as the
principal employee, she was assured she would not be laid
off, and because the sign shop did not work on Sundays and
she liked Sundays off to be with her family. D'Angelo told
her that if she moved into the cash office, he could assure
her that she would not be laid off and that she would not
have to work on Sundays.
D'Angelo's testimony in regard to Tetrault and Zotto not
working on Sundays as somewhat equivocal with his testi-
mony as he had told them he would do the best he could for
them so they would not have to work Sundays. I do not
credit D'Angelo's equivocating testimony because he did
not deny the clear convincing statements of Tetrault and
Zotto, but glossed over them with his responses. He did not
comment on Tetrault's offer to resign if not working Sun-
days would cause a problem or deny Zotto's statement that
she would not move from the sign shop if the move meant
working on Sunday. Zotto volunteered and did work some
Sundays during the Christmas rush because of the volume
of work. I credit Tetrault and Zotto that D'Angelo gave
them the assurances of no Sunday work.
B. Ecvnt. lFrom Dccoihm'r lhrolugh Januan
Around 7:30 p.m. Saturday evening, December 18, Lois
letraullt called the front of the store and asked Head Cash-
ier Lori Pinata to bring the unused cash register drawers
from the front to the cash office. A while later Tetrault went
to dinner and after she returned. noticed that the drawers
had not been brought back from the front. It was then
about 9 p.m. and she called the front and Kathleen Wagner
answered the phone. She mentioned she had previously
asked inata to bring back the drawers and Wagner said
they would do so. Wagner and Pinata then removed four
cash drawers which had not been used at the front end cash
registers and placed the contents in bags and Wagner
walked back a central aisle to the cash office. She testified
that Pinata watched her walk to the back and that the cash
office was visible from the point where she left the cash
registers. After leaving the bags. Wagner returned to the
front to work. When the employees at the cash office started
checking out the cash register drawers, they found that the
10- and 20-dollar bills from three of the drawers were miss-
ing and that the missing amount totalled $1,410. Tetrault
immediately called the front of the store and told Wagner
and Pinata to look around to see if the bundles of 10's and
20's were somewhere around the cash registers or at the
front of the store. They did so but were unable to find
anything. so reported to Tetrault and came back to the
office. A daytime head cashier, Delores .oGrosso, came
into the office and, according to Tetrault, was berating
Wagner for the loss of the money. LoGrosso, who had no
business in the cash office, was told to leave. Tetrault tele-
phoned D'Angelo at home and reported the problem. He
told her to check with securit. The head of security was
called, but refused to come to the store. D'Angelo told Tet-
rault to write down everything that had happened and he
would check on it the next day, again advising her to check
with security and sa ying they would hold all the employees
at the store for security. Again the head of security refused
to come. After checking through everything they could and
Tetrault writing all of the events, the employees left the
store sometime after midnight. On the next day, Tetrault
and D'Angelo went over the events of the prior evening and
tried to follow all possible angles as to what could have
happened. Tetrault told D'Angelo that she had talked to
Pinata around 7:30 p.m. and asked her to bring the drawers
back, but that the drawers were not brought back until she
called again at 9 o'clock and spoke to Wagner. Both Wag-
ner and Pinata were interviewed and given lie detector tests
and both were cleared. No other employees were given lie
detector tests concerning this event. Wagner and Pinata
continued to work during this period and there was no reso-
lution of the cause of the loss of money.
On December 27. Wagner was given a corrective discus-
sion notice (C.D.N.) by Joseph Delaney, assistant cash op-
erations manager. The C.D.N. stated that Wagner had
failed to take the cash register drawers to the cash office on
December 18 at 7:30 p.m. when she had been requested to
do so and that she had not adhered to company policy
67
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requiring that cashiers transporting company funds must be
escorted at all times. Wagner told Delaney that she had
never been requested to bring the cash register drawers
hack at 7:30 p.m. and denied that there was any company
policy requiring the use of escorts. Wagner refused to sign
the C.I).N. and said she would turn it over to the Union.
Pinata also received a C.D.N. and both she and Wagner
were suspended for 2 days.
The cashiers and cash office employees who testified
stated that they did not know of any escort policy require-
ment for cash-carrying employees. One employee testified
she remembered this being suggested and D'Angelo, after
being questioned further, said it was a suggestion. It is clear
that no one ever used an escort until after this incident and
only after it did D'Angelo issue a notice requiring employ-
ees to use escorts when carrying company funds. It is also
clear that supervisors both in the cash office and on the
floor could see and observe that no escorts were used prior
to that time and no one was ever instructed to do so. None
of Respondent's witnesses said an escort policy was en-
forced prior to D'Angelo's late December memorandum.
Trudy Zotto testified that after the money was missing, but
before Christmas, she was walking from the sign shop to the
employees room and heard Cipriano say to McWilliams
and three girls from the clothing department that Kathy
Wagner was union and they should stay away from her.
This would have occurred prior to Wagner's receipt of the
C.D.N. and suspension.
When Wagner reported back for work on January 3, fol-
lowing her suspension, she noticed that her name had been
removed from the head cashier section of the work schedule
and was in the cashier section. Wagner told Pinata, who
was still the head cashier on the evening shift, that she
wanted to talk to Delaney to find out why she had been
demoted. Pinata agreed but asked Wagner to process a bas-
ket of returned items while waiting to see Delaney. While
working on these returns, a head day cashier, Florence Da-
vies, paged Wagner over the public address system. Wagner
went to the front of the store and Davies told Wagner to
open the employee discount register and wait on a cus-
tomer. Wagner told Davies that she was expected at the
back of the store to speak to Delaney. Davies insisted that
Wagner open the register and take the sale. Wagner agreed
to do so, but again told Davies that after the sale she was
going to go speak to Delaney. Wagner opened the cash
register, took the sale, closed the cash register since no one
else was on the line, and went to the back of the store where
she spoke to Delaney.
Patricia Scanlon, another cashier, was within 2 or 3 feet
of Wagner and Davies as they were talking, and testified
that the conversation had been carried on in normal tones,
that there were no raised voices, and no indication of any
anger by either of the participants. Davies was not called as
a witness.
On January 5, D'Angelo gave Wagner a second C.D.N.
which said she had been insubordinate to a head cashier,
had refused to operate a register when instructed to do so,
and had not declared her money into the register when she
took it over at the start of the shift. Wagner told D'Angelo
that when cashiers from the second shift took over there
were no procedures for them to declare their funds into the
cash register. D'Angelo crossed out that allegation on the
C.D.N. Wagner denied that she had refused to open her
register or that she had an argument with Davies. D'Angelo
did not accept Wagner's statement, but gave her a 3-day
suspension in addition to the C.D.N. Wagner told D'An-
gelo she would also turn this notice over to the Union and
reminded D'Angelo of her union activities. He answered
that he knew what was happening, that there were prob-
lems with her, and he was upset with her. D'Angelo also
told Wagner that some people in the store did want a
union, but it would never come into that store. Respon-
dent's only testimony regarding this event was D'Angelo
stating that complaints had been made to him of insubordi-
nation by Wagner.
Union meetings were held on January 6 and 20. Wagner
and Libynski attended both. On January 8, Wagner and
Libynski were shopping during the day in the Coram store
and were approached by Assistant Store Manager McWil-
liams who told them they were being followed through the
store by the company security staff and asked what they
were doing in the store. They told him they were shopping.
They observed the security staff following them as they
moved through the store.
On January 11, Libynski worked in the morning for 5
hours on inventory and then punched out and was due to
return for her regularly scheduled evening work at 5:30
p.m. When she returned, she found that her timecard was
not in the rack and she was asked to report to store man-
ager Dixon. Dixon told Libynski he was giving her a CDN
for being insubordinate to a head cashier and refusing to
follow an order. When asked what he was referring to, Dix-
on said that she had been insubordinate to Daytime Head
Cashier Patricia Crowley on the previous day and because
of that, was being suspended for 3 days. Libynski gave her
version of the incident, saying she had reported for work
early on the evening shift and at the front near the cash
registers, Patricia Crowley, who was operating a cash regis-
ter, asked Libynski to take over her register so that she
could leave. Libynski told Crowley she would have to check
with Florence Davies, who by that time had been made the
evening shift head cashier, and asked Davies what she
should do. Davies asked Libynski to observe another em-
ployee closing out a cash register and, after noticing that
one other cashier had a line of customers and was nearing
completion of closing out her register, asked Davies if she
wanted her to take over that particular register and was
told by Davies to do so. Libynski continued to nrn that
register. Dixon refused to change his position on the CDN
and the suspension. Libynski also told Dixon that she did
not like running the employees cash register since there
were always some problems with overages and shortages on
it. Dixon adhered to his decision and Libynski was sus-
pended for 3 days.
When Kathleen Wagner, after her second suspension, re-
ported back for work on January 13, she noticed her time-
card was missing from the rack. She met with D'Angelo
and Dixon in Dixon's office where Dixon handed her a
C.D.N. and said Respondent was having a lot of problems
with her. The C.D.N. had been prepared on January 7 and
said she had improperly accepted a customer's check in
violation of store policy, had violated company policies in
the past, and would be discharged. This alleged violation
68
TWO GUYS DISCOUNT DEPARTMENT STORES
was her acceptance of a check without an imprinted name
on its face when she had been acting as a head cashier on
December 23. She told them she had inspected the check to
make sure that everything was on it, noted that the amount
of money was $209.75, and that ordinarily they would insist
on taking a picture of the person. When she had called the
courtesy office she told them there was no name on the
check, that the amount was that much, and asked if they
wanted a picture taken of the person or the bank called. She
was told by the check authorizer to approve the check as it
was and given an authorization number. Despite her expla-
nation and her statement that she knew of nobody else who
had ever been written up for this, Wagner was terminated.
There was considerable discussion and testimony as to
whether Respondent's manual demanded that checks be
imprinted with the person's name. Although the manual
shows a check with a name imprint, nothing in the instruc-
tions that accompany the picture states that the imprinted
name is essential in order for the check to be accepted.
Respondent's record of returned checks, called the "N.G.
Check Log," shows other checks which have been returned
without a name imprinted. The check in question was writ-
ten up in the "N.G. Check Log" and the company policy
violation listed was not the lack of a name, but rather that
the bank was not called, which would have been the check
authorizer's responsibility. The "N.G. Check Log" shows
there were other checks which were accepted with no im-
printed name, one on December 18 and two on December
17 for lesser sums of money and a fourth check on April 6
with the company policy violation listed as "no name on
check," "out of town," and "no phone number." Those
checks can be traced back to whoever authorized them in
the office and to the head cashier who was on duty. Despite
this, and despite Respondent issuing a notice in early Janu-
ary by D'Angelo stating that only imprinted checks would
be accepted, none of the persons involved in accepting these
four checks was ever given a disciplinary notice or suspen-
sion of any kind or, as far as we know, ever spoken to about
the problem.
On January 20, a union meeting was held at the inn at
Medford. Union business agent Velez asked Trudy Zotto if
she recognized anyone in the bar area outside of the meet-
ing room. Zotto left to check and saw Joseph Cipriano,
Respondent's clothing manager, seated at the bar. She re-
ported this to Velez. Later the meeting site was changed to
the Centurion Inn.
When Lois Tetrault came back to work January 24 from
being off due to a back injury, D'Angelo told her he had
discharged Wagner for accepting a check with no name
imprinted on its face and said that Wagner was working for
the Union. Shortly thereafter, Delaney made a similar com-
ment to Tetrault which Zotto overheard.
Trudy Zotto testified that she went to the Coram store on
Sunday to do some shopping and while there met employee
Julie Pratt who was on her way to lunch. She said she knew
that others had tried to talk to Pratt about the Union, but
there had always been management around. She asked
Pratt to go with her into the ladies room and while in there
looked around to make sure nobody else was present and
asked Pratt if anybody had talked to her about the Union.
Pratt said she had not been able to get a straight answer
from anybody and she wanted to hear both sides. Zotto told
her she would have somebody talk to her, gave her a union
card, and left. On the following day, Pratt mentioned to her
supervisor, Lucille Chabot, that it had appeared odd to
have somebody look under the stalls in the restrooms to
make sure no one was present before talking about the
Union. Chabot discussed this with D'Angelo. A day or two
later, D'Angelo talked to Lois Tetrault. He told Tetrault
that a girl from his office (meaning the cash office) and a
girl from the jewelry department (Pratt) were having a
union discussion in the ladies room and that the girl from
the cash office went to the extent of looking under the stalls
for other people to make sure nobody was listening. He
asked Tetrault whether they were both thinking of the same
person. When Tetrault did not answer, D'Angelo said it
was Trudy. Tetrault said she did not believe it, that she
knew Zotto had never talked about the Union to anybody
on working time. D'Angelo said he was very disappointed
and upset to hear that one of the girls from his office was
involved with the Union. A few days later, Zotto asked
Pratt, about hearing about it from Tetrault, whether Pratt
had told anybody about their conversation. Pratt said she
had spoken to Chabot about it. Pratt then approached Cha-
bot and Chabot admitted that she had given the informa-
tion to one of the managers. Chabot told Pratt that Dixon
had learned it was Zotto who had spoken with Pratt in the
ladies room and that they had suspected her of being asso-
ciated with the Union.
D'Angelo called a meeting of the employees in the cash
office on March 10 prior to a union meeting which was
scheduled that evening at the Centurion Inn. He told the
employees that if they were thinking about going to the
meeting to be careful since the Union could get rough and
to be clear on what was said. D'Angelo asked Tetrault
when she reported to work what time the meeting was due
to start. Tetrault said she thought it was 10 p.m. She said
D'Angelo appeared to be surprised and said he thought it
was due to start at 8 o'clock.
The meeting at the Centurion Inn was held in a down-
stairs room and the stairs to the room were by the bar.
Wagner left the meeting at one point and went upstairs to
the ladies room and when she passed the bar, saw Cipriano
and Respondent's assistant store manager, Luigi Bove, sit-
ting at the bar. Wagner mentioned this to Union Represent-
ative Jacqueline Barnes who went upstairs and looked at
the two men. Barnes testified that later she saw the individ-
uals again at the store and learned that their names were
Cipriano and Bove. When the meeting ended, Wagner,
Zotto, and Barnes left the meeting and saw Cipriano and
Bove still sitting at the bar. They noticed that some of the
employees who had attended the meeting joined Cipriano
and Bove at the bar.
The following night D'Angelo asked Tetrault to come
into his office and told her that he was upset because her
name had been mentioned at the union meeting the previ-
ous night. She said that she was upset by that. He asked
why her name had been used and she responded that it may
have come up in connection with her giving a statement to
an attorney from the National Labor Relations Board re-
garding the C.D.N. which had been given to Wagner at the
time when the cash was missing.
Although it is difficult to tell from the testimony whether
it was at that time or on a second occasion that Tetrault
69
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told D'Angelo about being contacted by an attorney from
the NLRB, she did tell him that she felt Wagner's C.D.N.
had been written improperly in that she had called Pinata
at 7:30 p.m., told Pinata to bring back the cash drawers,
and that she had not spoken to Wagner until around 9
o'clock that night. D'Angelo said that it was unimportant
and Tetrault said she did not think it was.
It is clear that management knew of the location and the
time of the union meeting and that we have identification of
them at a point where they could see everyone who went
into the meeting, by three witnesses, and their presence
through the duration of the meeting. Bove and Cipriano
claimed that they had been at the Centurion Inn on only
one occasion when Bove was being transferred to another
store. The transfer occurred around June. They were not
certain of the date and under further examination it became
clear they could have been there on other occasions. The
testimony of Wagner, Zotto, and Barnes is more credible
and I credit their version of the incident, discredit Cipriano
and Bove, and conclude and find that as Respondent's
agents they were engaged in surveillance of employees'
union activities. Added to this is D'Angelo's questioning of
Tetrault in regard to what had occurred at the meeting,
telling Tetrault that her name had been mentioned. This
undenied incident is clear evidence that D'Angelo gave Tet-
rault the impression that the union meeting and the union
activities of Respondent's employees were under Respon-
dent's surveillance. I find and conclude that this action also
violated Section 8(a)(1) of the Act.
Sometime in March, Respondent's area personnel super-
visor, Douglas Douglas, asked Lois Oakley whether union
personnel had been at her home and when she admitted
they had, he asked if she had talked to them and what the
outcome was. Douglas did not testify. This interrogation of
Oakley is violative of the Act and, additionally, creates an
impression that her activities were under Respondent's sur-
veillance in that Douglas appeared to know that union per-
sonnel had been at Oakley's home. About a month later, a
new area personnel representative, Kenneth Barckett,
Douglas' replacement, also questioned Oakley, saying he
had heard union representatives had been at her home.
Oakley told him she wanted to find out what was good and
what was bad about unionization and Barckett told her that
the Union was infringing upon her rights by coming to her
home. This interrogation is a repetition of Douglas' viola-
tive conduct and constitutes separate 8(a)( ) violations, and
I so find and conclude.
During a discussion of the Union, Supervisor Chabot
asked Julie Pratt if she had signed an authorization card,
telling her that employees were wrong if they felt they were
not waiving rights by signing such cards. Such a question is
unlawful interrogation and violates Section 8(a)(l) of the
Act, and I so find and conclude.
Kathleen Wagner testified that on an occasion during
April when she had a union meeting scheduled at her home
and on several other occasions when union meetings were
scheduled at her home, she recognized Joseph Cipriano's
car and saw him drive very slowly by her home.
Cipriano denied that he had ever done so. Both identified
his car as a Lincoln. Their description of its color varied a
bit, but was sufficiently close as to be acceptable. As I have
found Wagner to be a rather truthful witness and Cipriano
was somewhat vague and evasive, I credit her and find that
Cipriano's actions in driving past Wagner's home when
union meetings were scheduled violated Section 8(aXl1) of
the Act in that it created an impression that Cipriano was
trying to surveil the union activities of Wagner and other
employees.
Prior to the consolidation of the first two complaints in
this case, a hearing was scheduled in one of the cases on
May 18. Tetrault received a subpoena to testify in that case
and notified D'Angelo by showing it to him and telling him
that she would not be reporting for work. D'Angelo asked
why she had gotten the subpoena and said he would check
with the Company's lawyers to see if she would have to
attend the hearing. The following day he called Tetrault at
home to tell her that she would have to appear and asked if
she would speak to the Company's lawyers in Garfield.
When Tetrault came to work that evening, she told D'An-
gelo she did not think she would do so since she had already
given an affidavit to the NLRB and did not think her state-
ment would help D'Angelo, but instead might hurt him.
D'Angelo asked what kind of questions she had been asked
by the Board representative and she mentioned that she
had been questioned concerning the C.D.N. given to Wag-
ner. D'Angelo asked what else she had been questioned
about and she responded whether management had asked
about union meetings and that she had reported that D'An-
gelo had wanted to go to a union meeting to debate the
union representative. He said he could not do that and she
said she knew it. He inquired again as to what else the
Board representative had asked her and she told him she
had been asked questions about the Company's presence at
union meetings. Thereafter D'Angelo avoided Tetrault.
Trudy Zotto was told by a union representative that Per-
sonnel Representative Norena Baird had told people at a
Tupperware party that Zotto was going to receive a C.D.N.
When she reported for work the next evening, Zotto sought
out D'Angelo or Nagel and not finding them present, spoke
to Dixon, asking about a C.D.N. Dixon said he had signed
one, but had given it to D'Angelo.
The following morning Zotto went to the store to see
D'Angelo about the C.D.N. and told him she thought it
was very bad that a personnel manager would discuss em-
ployees at a Tupperware party. D'Angelo agreed and gave
Zotto a copy of the C.D.N. It stated that she had cashed
her own personal check from funds in her own cash drawer.
Zotto asked if the check had been in courtesy drawer A and
D'Angelo said it had. He said he assumed that she would
refuse to sign the C.D.N. She said she would not and would
do whatever was necessary to have it removed from her
personnel file.
That evening Barckett was in the store and asked another
employee if she were Zotto. The employee told Zotto that
she had been mistaken for her and told her that a man from
the main office was there. Zotto sought out Barckett and
talked to him in Baird's office. She explained that she was
concerned about the C.D.N. since it alleged an action
which to her would be a gross violation of proper policy,
stating that she had not done so. She told Backett that she
was being railroaded because she supported the Union and
was seeking to organize the store. She told Barckett that
employees were afraid to be seen with her and that Respon-
dent had already railroaded Wagner out of the store be-
70
TWO GUYS DISCOUNT DEPARTMENT STORES
cause of her union activities. Barckett asked if she would
consent to a meeting with himself, D'Angelo, and Dixon.
She responded that she would meet with D'Angelo, but
would like a witness present. Barckett told her she was the
first person who ever had the nerve to tell him that she was
trying to organize a union. She told him it did not take
nerve, that she knew that was her right, and she was within
her rights and was not doing anything unlawful.
Zotto explained that she had wanted to make a purchase
and had called a girl in the courtesy office to take the pur-
chase and accept the check. The girl, Karen McClusky, had
put Zotto's social security number on the back of the check.
which was the normal method for identifying employee
checks, and had cashed it from the cash register and not
from courtesy drawer A, though it was the same cash regis-
ter.
On the following day, they met in the office and D'An-
gelo stated that he found out that Zotto had not cashed her
own check, that Karen McClusky had done so. Zotto stated
that she had agreed to the meeting only if no one would be
written up for it and D'Angelo said that no one would be.
D'Angelo said that the check should have been fully
stamped the way all checks were supposed to be and that he
had received the check without knowing whether it had
been in the cash register or in either of the courtesy draw-
ers. Zotto said that he could have checked it out by check-
ing against the tape listing which would have been in cour-
tesy drawer A. D'Angelo did not deny that. Zotto further
stated, as did other employees, that all that employees had
ever done in taking a check from other employees was to
put their social security number on the back of it. Zotto
specifically testified that there were occasions when she did
so with D'Angelo present and nothing had ever been said
about this method of identifying employees' checks.
Barckett stated that he would tear up the C.D.N. and
offered to tear up her copy. She refused and kept it. Barc-
kett told D'Angelo that Zotto felt she was being railroaded
because of her union activities. D'Angelo said that was not
so because he had known that she had been organizing for
the Union since November. Zotto replied she knew that
since D'Angelo had discussed it with Tetrault.
At the beginning of June, the Union filed a charge con-
cerning the notice given to Zotto, and a complaint was is-
sued shortly thereafter.
On June 13, a New York State unemployment hearing
was scheduled for Kathleen Wagner since Respondent had
contested her eligibility to receive benefits. Zotto, Tetrault,
and a union representative accompanied Wagner to the
hearing. The New York State referee asked for the names of
those present and then adjourned the proceeding to a later
date. That evening when Tetrault reported for work, she
mentioned to Delaney that she had been at an unemploy-
ment hearing that day. He replied that she did not have to
tell him, that Norena Baird came back and within minutes
everybody in the store knew it.
In June, employees Kathleen Wagner, Trudy Zotto, Lor-
raine Libynski, and others participated in handbilling the
store area with union literature. The handbilling was the
subject of pictures and a story by the local newspaper, "The
Long Island News." Although not used in an issue of that
paper dated July 1, a picture was posed and taken of Tet-
rault being given a handbill by those present. A picture
identifying Wagner, Zotto, and Libynski as handbilling for
the Union was published in that issue of the paper along
with some comments by Zotto.
About the third week in July, Delaney told Tetrault that
there was a new store policy instituted by Steve Schiacchi-
tano, the cash operations manager who replaced D'Angelo,
which required that all cash office employees would have to
work on some Sundays. Tetrault, who realized that the only
two people in the cash office who would be affected by this
were herself and Zotto, told Zotto of Delaney's statement.
That evening they contacted Schiacchitano regarding this
policy since Tetrault was aware that she was scheduled for
work the following Sunday, July 24. The two explained to
him how and why they were in their positions and why they
were not doing Sunday work since D'Angelo had made
those agreements with them. He stated that this was a new
policy and that everyone would have to rotate working on
Sundays which would amount to working every third Sun-
day. Tetrault said she was unable to do so and asked what
the alternative was. He was unable to give her an answer,
but said he would speak to Dixon and talk to Zotto and
Tetrault later. Schiacchitano told Tetrault he would excuse
her from working on July 24, but she would be scheduled
again in 3 weeks.
Lois Oakley testified that another employee in the cash
office told her that Zotto and Tetrault were being scheduled
for Sunday work so Respondent could rid itself of them.
Oakley told Zotto the following day that things were ex-
pected to happen on Sunday since the day office employees
expected Tetrault to be working that day. Zotto told Oakley
she had been excused from doing so. Oakley told Zotto of
the statement of the other employee. Neither Zotto nor Tet-
rault worked on July 24, but worked their remaining sched-
uled days the following week.
The fact that such rumors were being circulated in the
cash office demonstrates the attitudes and beliefs of the em-
ployees.
Day cashroom employees met with Barckett, Dixon, and
Schiacchitano on July 28. One of the questions raised was
that certain employees had not been working Sundays.
There were indications that some of the daytime employees
had complained about this over a long period of time. Oak-
ley heard that Zotto was to be fired and that Tetrault would
be fired the following day. That evening Wagner called
Zotto and attempted to warn her of a possible discharge.
Zotto went to work and was told that Barckett wanted to
see her. With Schiacchitano present, Barckett asked Zotto
what arrangements had been made with D'Angelo. She de-
scribed how he had asked her to move from the sign shop to
the cash office with explicit promises. Barckett said he
would see what arrangements he could work out and the
meeting ended. A little while later, Zotto was called into
Dixon's office where Dixon said he had spoken to D'Angelo
and D'Angelo had denied making any such arrangements,
stating that he had only said he would try to make some
arrangements. Zotto told Dixon that if D'Angelo said that,
he was lying. Dixon told Zotto that if she could not work
Sundays, he could not use her. She asked for her separation
papers and Schiacchitano suggested she work the remain-
der of the evening. She did not do so.
71
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the following day, Tetrault went to pick up her pay-
check and saw the week's schedule showing her as sched-
uled to work on Sunday, July 31. Tetrault sought Schiacchi-
tano and reminded him that he had previously said she
would not be rescheduled for Sunday work for 3 weeks.
Schiacchitano told her that if she was not able to work
Sundays, he did not need her. Tetrault asked for her separa-
tion papers.
Although Respondent claims that the Sunday work pro-
vision applied to all nonmanagerial employees, the General
Counsel produced an exhibit from Respondent's records
which demonstrated that some of Respondent's employees
did not work on Sundays and several worked very rarely on
Sundays.
Following the discharges of Tetrault and Zotto, Tetrault,
while in the store shopping one day, was asked by other
employees why she quit and told them she had not quit but
had been discharged. When Zotto and Tetrault applied for
unemployment compensation, Respondent contested,
maintaining at one point that Zotto had quit without no-
tice. This position was subsequently changed.
An assistant store manager named Miller told Libynski
in September 1977 that it was not necessary for her to wear
her union button on her smock, that it was not part of the
uniform, and he did not want her to wear it. Libynski took
the button off the smock, but wore it on her shirt collar
where it was still visible.
Oakley, who had been subpoenaed for the hearing in this
matter in October, told an assistant operations manager,
Carlino, of the subpoena and that she would be attending
the hearing. Later that day, Carlino told her that the Com-
pany knew about her and the Union. When she asked Car-
lino if she was supposed to hide it, he responded that he was
telling her to watch her step.
Respondent's performance evaluation of Oakley in Sep-
tember had been good, but on the same day she told Car-
lino of the subpoena, Carlino told her she was not measur-
ing up to the job she was supposed to be doing and that she
had to shape up by Friday or she would be out. Oakley
became upset and spoke to another assistant store manager,
Nagel, about this and was told that she was not conforming
and acting like a manager. She was not a manager.
Shortly thereafter, Luigi Bove, who had been transferred
to the New Hyde Park store was in the Coram store and
spoke to Oakley. He told her he had heard she was causing
a lot of trouble. Oakley denied being a troublemaker, but
Bove insisted that was what he had heard.
Respondent's Coram merchandise manager, Mancini,
told Oakley that he had thought she was his friend. When
she asked what he was talking about, he responded that she
had turned "rat" and refused to comment further.
Lorraine Libynski was present throughout the first part
of the hearing and testified that she had been instructed by
the General Counsel to return for the continued part of the
hearing, that she was still under subpoena. On Friday, No-
vember I, Libynski told Nagel that she would be gone the
following week to appear in court and that the hearing was
still in progress. Nagel told her that she would have to take
a leave of absence. She asked why, telling him that she was
under subpoena but would still be able to work weekends.
Nagel said he would speak to Dixon, but felt a leave of
absence would be best. Nagel then asked her to come to his
office where he talked to her about a written disciplinary
slip he had. He stated that she had more than six absences
for the year. Libynski answered that she had been caring
for her mother during her illness in August and had re-
ceived permission to do it and had been absent pursuant to
subpoena during the first part of the hearing. Nagel said
that he understood that, but it did not rectify the fact she
was over her limit of absences for the year. She asked
whether such a written slip would go into her personnel file.
He told her that it would not, that he was just talking to her
about it. She asked why the thing had been written up then,
and Nagel said he was going to tear it up and did so.
Nagel testified that he spoke to Lorraine Libynski about
her absenteeism since his secretary had pointed out how
many absences she had had. Although he said she told him
she needed to be off for the week for court appearances, she
did not tell him that she had been subpoenaed or what
court appearance it was. He corroborated the remainder of
her testimony. During cross-examination, Nagel admitted
he knew that Respondent was involved in an NLRB pro-
ceeding, that Libynski had been subpenaed and had been at
the NLRB proceeding the previous week, and that the hear-
ing was scheduled to be continued the following week.
Nagel's attempt to evade the issue is clear and that he
was harassing Libynski because of her NLRB proceeding
and scheduled presence at it is easily seen. Although the
technical infraction notice, as he termed it, was not made
part of Libynski's personnel file, the fact is that he did call
her in and discuss absenteeism and that she should take a
personal leave of absence. This was a patent attempt to
harass an NLRB witness. In the same vein is the multiple
comments by many supervisors to Oakley, recited above,
and such campaign was an obvious attempt to harass a
witness under subpoena for an NLRB hearing. Such con-
duct violates Section 8(a)(1) of the Act, and I so find and
conclude, and it is a close question as to whether such vio-
lates Section 8(a)(4) of the Act.
C. Analysis and Conclusions
In attempting to rebut the General Counsel's case, Re-
spondent used Richard Dixon, Joseph Cipriano, Luigi
Bove, Roger Nagel, Louis D'Angelo, and Kenneth Barckett
as witnesses. As noted previously, Respondent did not pro-
duce any other witnesses who were directly involved in sup-
posed confrontations with some of the General Counsel's
witnesses, but instead relied on second and thirdhand re-
ports. It was clear from the testimony of D'Angelo and
Dixon that their investigations of such instances did not
proceed to the point where they questioned the accused as
to the accused's version of the event. This attitude appears
to have been expressed by D'Angelo when, in issuing the
C.D.N. against Wagner, he told Tetrault that the discrepan-
cies did not matter, implying that it did not matter whether
the facts were correctly spelled out or not.
The facts concerning the three C.D.N.'s given to Kath-
leen Wagner establish that Respondent was not interested
in the actual facts of the situation, but was more interested
in disciplining Wagner and dealing with her much more
harshly than any other employee.
Taking the first event, it is clear from the facts, and is
undisputed as far as the testimony goes, that it was Night
72
TWO GUYS DISCOUNT DEPARTMENT STORES
Head Cashier Lori Pinata who neglected for an hour and a
half to remove the unused cash drawers from the cash reg-
isters following Tetrault's request. Despite that and Tet-
rault's testimony that she told D'Angelo of the day follow-
ing the loss of the money and later repeated it to him after
he had written up Wagner in the manner which indicated
that it was Wagner's fault despite her being the junior head
cashier, D'Angelo brushed that aside as an immaterial is-
sue. Similarly, the punishment was different in that Wagner
was demoted from her position while Pinata was kept on.
When Wagner sought clarification of this demotion from a
Respondent supervisor, a small discussion became a large-
scale problem by Respondent's lights, and Respondent
again disciplined Wagner. The facts of this second situation
show clearly that nothing much of any import happened,
that Wagner did perform the actions requested of her, and
that she did not leave the cash register without permission.
The events detailed as to the unimprinted check show
clearly that Respondent disciplined Wagner while not disci-
plining any other person who was ever involved in such an
incident, even when an incident occurred 4 months after
Respondent had issued specific orders concerning unim-
printed checks.
Such gross disparate treatment when contrasted with Re-
spondent's knowledge of Wagner's union activities demon-
strates clearly that the discipline exacted was for the pur-
pose of punishing and ridding itself of a union advocate.
I conclude and find that the three C.D.N.'s, the two sus-
pensions, and the discharge were unfairly and unlawfully
issued against Wagner and that thereby, Respondent vio-
lated Section 8(a)(l) and (3) of the Act. I will recommend
that Wagner's personnel file be cleared of these notices and
that she be reinstated to her former position and made
whole.
In the same manner, Respondent again blew out of all
proportion an incident between Lorraine Libynski and a
head cashier who was at that time operating a cash register
and not acting as a head cashier. Libynski was known to be
a friend of Wagner and similarly engaged in union activity.
Respondent accepted or created a distorted version of an
incident and suspended Libynski.
One of the telling factors in deciding that these events
violated Section 8(a)(3) and (1) of the Act, as I find Libyn-
ski's suspension did, was the fact that very few C.D.N.'s
were issued. Here, Respondent in a period of a year, used a
grossly disproportionate number of C.D.N.'s to chastise
union adherents compared to the number of C.D.N.'s is-
sued and the large number of the employee complement at
the Coram store.
Having found that Respondent violated Section 8(a)(l)
and (3) of the Act by its suspension of Lorraine Libynski, I
will order that it rescind such suspension and remove the
notices and suspension from her personnel file and make
her whole for her loss.
Respondent continued its antiunion practices, as was evi-
dent in the discipline and discharge of Zotto and the dis-
charge of Tetrault. Zotto's support for the Union became
known in November according to a statement made by
D'Angelo. Zotto had been a bank employee and was famil-
iar with proper practices in cashing checks. Yet, D'Angelo
had a C.D.N. prepared for her after a check of Zotto's was
found in a collection of checks taken from the courtesy desk
cash register. D'Angelo could have checked the tape listing
for Zotto's register drawer but did not bother to do so, but
merely prepared the C.D.N. and issued it on the basis that
Zotto was in the wrong. Zotto's and Tetrault's activities, in
both assisting Wagner at her unemployment hearing, being
present and participating in the late June distribution of
union literature, the change in D'Angelo's attitude towards
Tetrault after she disputed the manner in which he had
issued the C.D.N. as regards Wagner, and the fact that she
gave testimony through affidavits to NLRB personnel prior
to the scheduled hearing concerning Wagner and the June
charges and NLRB complaint as to Zotto, led to the con-
frontation in July when Tetrault and Zotto were dismissed
by Respondent. In these activities, Respondent kept up a
barrage of various 8(a)(l) statements by D'Angelo and oth-
ers as well as impressing upon the witnesses and various
Respondent employees that their activities were under sur-
veillance by Respondent. This was clearly evident in Tet-
rault's case from D'Angelo's statements to her.
Although Respondent claimed it was enforcing a policy
of everybody working on Sunday and not making a policy
change in July, such a policy was unknown to the employ-
ees prior to that time. Facts supplied by the General Coun-
sel demonstrate there was no such universal policy for Re-
spondent's employees.
It was for good and sufficient reasons that D'Angelo had
made agreements with both Tetrault and Zotto regarding
their work schedules in the evenings and on Saturdays and
exempting them from Sunday work in the cash office. If
contra to Respondent's claim, this was a new policy, then it
was announced only for the cash office employees and af-
fected only the two union adherents, Zotto and Tetrault.
Such a carefully drawn policy affecting only two people and
allowing Respondent to rid itself of known union adherents
who also were witnesses in NLRB cases against it is too
fortuitous to be given any credulity. Respondent did not
produce any credible testimony of the need for such a pol-
icy, old or new, or that there was such a policy uniformly
enforced.
Accordingly, I conclude and find that Respondent vio-
lated Section 8(a)(1), (3), and (4) by the issuance of the
C.D.N. to Zotto and by the discharges of Zotto and Tet-
rault.
Respondent, as shown by the testimony recited above,
violated Section 8(a)(1) of the Act by the extensive actions
of its supervisors including the interrogation of employees
by D'Angelo, Chabot, Douglas, and Barckett and by the
threats made of Respondent retaliation by D'Angelo and
Chabot, Douglas and Barckett, and by the impressions of
surveillance created by D'Angelo, Chabot, Douglas, and
Barkett and by the actual surveillance engaged in by Cipri-
ano and Bove, and the harassment of NLRB witnesses.
D'Angelo's attempt to avoid the 8(a)(1) allegations was
not credible as compared to the testimony of the General
Counsel witnesses which establish the facts. D'Angelo
agreed that he asked Tetrault questions concerning Zotto's
union activities. His denials of other alleged violations were
not specific in a number of instances and were not forth-
coming in others. The testimony concerning interrogation
of Oakley by Douglas and Barckett is undenied and the
interrogation of Julie Pratt by Lucille Chabot is undenied
as is the impression of surveillance created by Chabot.
73
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the issue of the removal of a button by Libyn-
ski at Miller's direction would seem to be minor since she
placed it on her shirt collar where it was visible; the fact
that Miller did not testify and that there was no rule shown
prohibiting the wearing of buttons or other things on the
smock, and in the context of the whole campaign by Re-
spondent against the Union, I find that this too violated
Section 8(a)(1) of the Act.
In essence, the 8(a)(1) allegations contained in the var-
ious complaints have been proven and have not been suffi-
ciently met by Respondent's witnesses.
II1. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II and
therein found to constitute unfair labor practices in viola-
tion of Section 8(a)(1), (3), and (4) of the Act, occurring in
connection with Respondent's business operations as set
forth above in section 1, have a close, intimate, and substan-
tial relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
VI. THE REMEDY
Having found that Respondent engaged in the unfair la-
bor practices set forth above, I recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act as follows:
Respondent violated Section 8(a)(4) of the Act by its dis-
charges of Lois Tetrault and Trudy Zotto and its serving a
corrective discussion notice on Trudy Zotto and further vio-
lated Section 8(a)3) and (1) of the Act by its discharges of
Lois Tetrault, Trudy Zotto, and Kathleen Wagner and by
the corrective discussion notices and the suspensions given
to Kathleen Wagner and Lorraine Libynski and, to remedy
these violations, it is recommended that Respondent offer
Tetrault, Zotto, and Wagner full and immediate reinstate-
ment to their former positions, and make them and Lor-
raine Libynski whole for any losses they may have suffered
because of Respondent's discriminatory treatment of them
by payment to them of a sum which they would have re-
ceived as wages for the periods that they were suspended
and/or discharged until they are fully reinstated by Re-
spondent, less any net earnings for the interim. Backpay is
to be computed on a quarterly basis in the manner pre-
scribed in F. W. Woolworth Company, 90 NLRB 289 (1950),
and Florida Steel Corporation, 231 NLRB 651 (1977).'
Further, Respondent is to remove and destroy the correc-
tive discussion notices from the personnel files of Wagner
and Libynski,
I further recommend that Respondent make available to
the Board, on request, payroll and other records to facilitate
checking the amounts of backpay due them and any other
rights they may be entitled to receive.
Further, having found that Respondent violated Section
8(a)(1) of the Act by the numerous acts and conduct de-
tailed above, and since it is part of the purpose of the Act to
prevent the commission of unfair labor practices, I recom-
I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
mend that Respondent be ordered to cease and desist from
violating the Act in the above or in any other manner.
On the basis of the foregoing findings and the entire rec-
ord, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by un-
lawfully: (a) Interrogating employees about their own
union sentiments and activities and those of other employ-
ees; (b) threatening employees with the loss of benefits or
employment or with other reprisals if they supported the
Union; (c) creating an impression of surveilling the union
activities of employees; (d) actually surveilling employees'
presence at union meetings; and (e) harassing employees
who were witnesses at NLRB proceedings.
4. Respondent violated Section 8(a)(3) and (1) of the Act
by discriminatorily discharging Lois Tetrault, Trudy Zotto,
and Kathleen Wagner and by suspending Wagner and Lor-
raine Libynski and by disciplining Zotto, Wagner, and
Libynski.
5. Respondent violated Section 8(a)(4) and (1) of the Act
by discharging Lois Tetrault and Trudy Zotto and by disci-
plining Zotto because they gave testimony and/or were the
subject of charges filed with the Board.
ORDER'
Upon the basis of the foregoing findings of fact and con-
clusions of law and the entire record in this case considered
as a whole, it is recommended that Vornado, Inc., d/b/a
Two Guys Discount Department Stores of Coram, New
York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or suspending employees because of
their known or suspected union sentiments and activities.
(b) Discharging or disciplining employees because they
gave testimony and/or were the subject of charges filed
with the Board
(c) Interrogating employees about their own union senti-
ments and activities and those of other employees.
(d) Threatening employees with the loss of benefits or
employment or with other reprisals if they supported the
Union.
(e) Creating an impression of surveilling the union activi-
ties of employees.
(f) Actually surveilling employees' presence at union
meetings.
(g) Harassing employees under subpoena to testify at
NLRB proceedings.
(h) In the same or any other manner violating the Sec-
tion 7 rights of employees.
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
74
TWO GUYS DISCOUNT DEPARTMENT STORES
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer reinstatement to and make whole Lois Tetrault,
Trudy Zotto, and Kathleen Wagner, and make whole Lor-
raine Libynski in accordance with the recommendations set
forth in "The Remedy" in this decision.
(b) Remove from the personnel or other files of employ-
ees the corrective discussion notices issued to Wagner and
Libynski.
(c) Post at its store in Coram, New York, copies of the
attached notice marked "Appendix."' Copies of said notice
I In the event that 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
on forms furnished by the Regional Director for Region 29.
after being signed by an authorized representative of Re-
spondent, shall be posted by Respondent immediately
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
nal.
(d) Notify the Regional Director for Region 29, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
75