D'Armigene, Inc.

National Labor Relations Board - Board Decisions

Jul 23, 1964

148 N.L.R.B. 2 (N.L.R.B. 1964)

2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany is engaged in interstate commerce, which we assume arquendo,
the Petitioner has not submitted any specific commerce data to estab-
lish that the Employer's inflow or outflow, direct or indirect, satisfies
the test for invoking the Board's discretionary standard for the asser-
tion of jurisdiction over nonretail enterprises. In these circumstances,
the Board is unable to make a meaningful jurisdictional determination
herein.
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that, on the
allegations here present, the Board is unable to conclude whether or
not it would assert jurisdiction herein with respect to labor disputes
cognizable under Sections 8, 9, and 10 of the Act.
D'Armigene , Inc. and Local 107, International Ladies' Garment
Workers' Union , AFL-CIO. Case No. 92-CA-9396. July 23,
1964
DECISION AND ORDER
On April 1, 1964, Trial Examiner Stanley, N. Ohlbaum issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the General Counsel and the Respondent filed ex-
ceptions to the Trial Examiner's Decision and supporting briefs, and
the Charging Party filed a brief in reply to the Respondent's brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at thehearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions, the briefs, and the entire record in
this proceeding, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations with the following exceptions.'
The Trial Examiner found, and we agree, that some of the Respond-
ent's employees had engaged in an unfair labor practice strike. We
1 The Respondent has excepted to the credibility findings made by the Trial Examiner.
It is the Board ' s established policy, however , not to overrule a Trial Examiner's resolutions
with respect to credibility unless, as is not the case here, the clear preponderance of all the
relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall
Products , Inc., 91 NLRB 544 , enfd. 188 F. 2d 362 (C.A. 3).
The Respondent 's request for oral argument before the Board is hereby denied as the
record, the exceptions , and the briefs adequately present the issues and positions of the
parties.
148 NLRB No. 2.
- Tr- D'ARMIGENE , INC. e3
find merit, however, in the General Counsel's exceptions to the Trial
Examiner 's recommendation that the Respondent be required to offer
immediate reinstatement to the unfair labor practice strikers, as the
usual Board remedy is to require reinstatement of unfair labor prac-
tice strikers upon their application to return to work. Accordingly,
we shall modify the Trial Examiner's Recommended Order to require
that the Respondent shall, upon application , reinstate the unfair labor
practice strikers to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, dis-
missing, if necessary, any person hired by the Respondent after the
commencement of the strike on June 12 , 1963. If, after such dismissal,
there are insufficient positions remaining , those strikers for whom no
employment is immediately available shall be placed on a preferential
hiring list, with priority determined among them by such nondis-
criminatory system` as was heretofore applied in the conduct of the
Respondent 's business or any other nondiscriminatory practice, and
thereafter , in accordance with such lists , they shall be offered re-
instatement as positions become available and before other persons are
hired for such work . In addition , the Respondent shall make these
employees whole for any loss of earnings which they may suffer by
reason of the Respondent 's refusal , if, any, to reinstate them in the
manner prescribed above, by payment to them of a sum of money
equal to that which the employees normally would have earned as
wages during the period beginning. 5 days after the date on which
such employee applies for reemployment or reinstatement and termi-
nating on the date of the Respondent 's offer of employment.
The Trial Examiner found , and we agree , that Jean Crescimanno
and Dante Galdi were discriminatorily discharged , and that the strike
which began after their discharges was an unfair labor practice strike.
He also found that John Sicignano was an unfair labor practice
striker, and that the parties stipulated to the inclusion of Crescimanno,
Galdi, Sicignano , Benjamin Weissman , Lawrence Zuaro, Joseph Costa,
and Charles Previte as unfair labor practice strikers . The Respond-
ent excepted to the finding that there was such a stipulation. We find
merit in this exception as the stipulation in question merely named
the employees intended to be covered by an allegation in the complaint
that "certain of the employees of the Respondent ceased work con-
certedly , and went out on strike . . . ." There was no stipulation,
however, that they were strikers. We do find, however, in agreement
with the Trial Examiner , that Sicignano was an unfair labor practice
striker, and we further find that Crescimanno and Galdi became un-
fair labor practice strikers when they rejected the Respondent 's offers
of reinstatement . As the Trial Examiner did not make any other
specific findings regarding the status of employees as strikers, and as
the record is unclear as- to the identity of the other unfair labor prac-
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tice strikers, we shall leave the determinations as to their identity,
and as to when and if some of the strikers may have abandoned the
strike, to the compliance stage of this proceeding. -
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner and orders that the Respondent, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order as modified herein :
1. The following paragraph 2(b) shall replace paragraph 2(b) of
the Recommended Order:
(b) Upon application, reinstate the unfair labor practice strik-
ers to their former or substantially equivalent positions, without.
prejudice to their seniority or other rights and privileges, and
make them whole for any loss of earnings resulting from a failure
to reinstate, all in accordance with the conditions set forth in the
section entitled "The Remedy" of the Trial Examiner's Decision
as modified by the Decision of the Board.
2. The following paragraph shall be added as paragraph 2(f) of
the Recommended Order :
(f) Notify the above-described employees if presently serving
in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
3. The following paragraph will replace the second full indented
paragraph in the notice :
WE WILL, upon application, reinstate the unfair labor practice
strikers to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Stanley N. Ohlbaum in New York City on December 2, 4, and 5, 1963,1 on a com-
plaint dated October 28, as amended at the hearing, issued by General Counsel of
the National Labor Relations Board through the Regional Director for the Second
Region, based upon a charge filed June 14 by Local 107, International Ladies' Gar-
ment Workers' Union, AFL-CIO, herein called the Union, and the answer of
D'Armigene, Inc., herein called the Respondent, Employer, or Company. The prin-
cipal issues litigated were whether Respondent violated the National Labor Relations
Act, as amended, herein called the Act, through: (1) economic benefits and promises
of further benefits, and threats of economic detriments, to its employees to restrain
1 Unless otherwise specified , references are to 1963 throughout.
D'ARMIGENE, INC. 5
them from joining and supporting a union; (2) preemployment interrogation to
ascertain union membership; and (3) discharge of employees for union affiliation.
Testimony, exhibits, and briefs have been carefully considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
At all material times, Respondent has been and is a New York corporation en-
gaged in the manufacture, sale, and distribution of women's -uniforms at and from
its principal place of business in Bay Shore, Long Island, New York. During the
representative year immediately preceding issuance of the complaint, Respondent's
output and distribution of products exceeded $500,000 in value, involving sales and
shipments by it in interstate commerce directly from New York worth over $50,000,
and also purchases and shipments to it in interstate commerce directly into New York
worth over $50,000.
I find that at all material times Respondent has been and is an employer engaged
in commerce wtihin the meaning of Section 2(6) and (7) of the Act, and that asser-
tion of jurisdiction in this case is proper.
II. THE LABOR ORGANIZATION INVOLVED
At all material times, the Union has been and is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Respondent has for over 11 years owned and operated a women's uniform factory
in Bay Shore, Long Island, New York, employing up to 93 persons including about
3 or 4 cutters. Personnel and organizations figuring prominently in events about to
be detailed are:
Name Capacity
Armigene Johnson ------------- Respondent's president and principal.
Ann DiGiuseppe______________ Respondent's vice president, factory fore-
lady, and supervisor of sewing machine
operators ("operators").
Robert Sullivan--------------- Respondent's comptroller.
Ann Amabile_________________ Respondent's supervisor of operators.
Anthony Bonventre____________ Respondent's supervisor of cutters; since
August, Respondent's production manager.
Jean Crescimanno_____________ An operator in Respondent's employ; vice
Dante Galdi__________________
president of Union (Local 107).
John Sicignano---------------- - Cutters (sometimes called cutters-markers or
Larry Zuaro__________________J- markers-cutters) in Respondent's employ.
Joseph Costa_________________
Edward Banyai------ _____----- Officials or business agents of Union (Local
John Giralomo (Giro lamo)----- 107).Bernard Koozman (Kuzman)___
Local 107, ILGWU, AFL-CIO__ A geographically localized area union of
operators-garment workers, functioning in
Nassau County, Long Island, New York.
Local 10, ILGWU, AFL-CIO___ A nongeographically localized craft union of
garment cutters, markers, and graders.
On the evening of June 5, after work, employees of Respondent were visited at
their homes by representatives of the Union, who solicited their membership into
the Union. Respondent's president and principal, Armigene Johnson, learned of
this the next day (June 6) from Respondent's vice president and factory forelady,
Ann DiGiuseppe, as well as some of the employees. The following day, Friday,
June 7, with the employees assembled in the factory, the machines were turned off
and Johnson delivered a half-hour address. In her speech, the first and only one in
the experience of the employee who testified at length concerning it,2 and apparently
2 I.e., Jean Crescimanno , a restrained and truthful witness whose testimony was substan-
tially uncontroverted and whose account of the speech I credit.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the only one of its precise kind ever delivered there, Johnson described her own
humble antecedents down South, vividly recounted her childhood fear of a bogey-
man, and told of an unfortunate marital experience' she had had. She spoke of hav-
ing worked in union shops and that "she had known Mr. Dave Dubinsky [head of the
Union's parent body] personally and . . . he had remarked to her that she would
make a good organizer and that's when she fled." She reviewed the circumstances
of her start in the business 11 years ago and that her purpose was "to build a beauti-
ful place, a lovely place, and a respectable place." She reminded the employees
that she had provided many advantages, including "high windows, beautiful lunch
room, beautiful bathrooms and a respectable place to work in." She spoke of im-
minent improvements in vacation policies, as well as of wage increases that would-
be "due shortly" and which she was "going to take . . . into consideration." And
she spoke of the beauty of the building she had conceived, the sacrifices she had
made, how she was "trying to raise the standard of living" of her employees. and
the respectability of her operations. When, at length, one of the employees asked
Johnson what she was driving at, Johnson replied:
I know that some of you girls have been approached and visited by union
agents . . . . I have worked with the unions, I know what it is to work in the
union shops . . . and I've tried working piece rates and that can be very annoy-
ing. I want you girls to know that if you are unhappy here . that if you
don't like this kind of work, if you don't like what you are doing, that you
would be free to leave . and go to another place where you think you will
be happy working . . I don't want the union, I won't sign with the union
and if it ever comes to that, I'll close the place down.
Johnson pointed out, ". . . what I am trying to bring out is that I want you to love
your work. I want you to love what you are doing here and to be happy here and
if you don't like how the place is now or what your work is now, then would you
please leave? You would be free to leave and go where you would be happy." 3
Except for denying that she threatened to close the plant down if the Union came
in, Johnson did not in any important respect dispute this account of her speech as-
described by Crescimanno; nor did Respondent produce any of its numerous em-
ployees, or any management-related personnel, to controvert Crescimanno's testi-
mony; nor was an alleged transcript of that speech (which apparently was in Re-
spondent's possession) produced. In her own testimony, Johnson admitted that when.
she called the meeting of employees on June 7, she was aware that the Union had
for 2 days before that been attempting to organize the employees, having learned
this on June 6 from DiGiuseppe and some of the employees. To Crescimanno's
account Johnson added that in her speech she characterized herself, her supervisors,
and her employees as'having "always been a happy family working together .. . .
We have always been a very happy family. We have worked well together. There
are many of you standing in this room who have gone home without . with just
enough money to' buy groceries. This is the kind of business we have. We have a
family business." And, in clarification of this, Johnson testified that on occasions in
the past, when the Company found it difficult to meet its payroll, some of the em-
ployees had gone without pay; that some of the employees had been paid only
$10 or $15 per week for their "immediate needs" until business improved; and that
she had even borrowed money from some of the employees. In response to a ques-
tion on cross-examination about whether Respondent practiced the sharing of profits
as well as losses with employees, Johnson testified that the "sharing" of which she
had spoken "was in speaking about the hours that we worked. I said that we were
very badly in need of more operators. I had asked them to work overtime and on
Saturday, and we had a big show to put on the road and we had much work to be done,
that we had lost money last year and all of us would need to work and this was the
sharing part, and until we caught up with our production and could get more
operators, we could not give them everything." Johnson's testimony also indicates
that she acquainted her assembled employees with the "disharmony," "unhappiness,"
and "fighting, pushing, pulling, screaming and yelling" in union shops; and that, in
the context of the onset of the union campaigning and its pursuit of members among
the employees, Johnson narrated a grisly tale of her childhood involving her un-
s Galdi, another employee present at the speech, corroborated this account in major
aspects. He testified that Johnson said that she had "heard reports that the union has
been going around to see some of the workers" and that "if you don't like the place as it
is here, nobody is keeping you. Go somewhere else" ; and that she gave indications of pay
raises and improved vacations in the offing.
D'ARMIGENE, INC. 7
reasoning fear of pursuit by an awesome bogey known as "Raw-headed Bloody
Bones," the moral of which was to pluck up courage and conquer fear of pursuit by
such terrible, frightening bogeys. According to her testimony she also told the
employees that there was nothing to fear but fear itself, and that they were free to
join or not join, and at the same time, mentioning the Union's pending organiza-
tional drive, announced an improvement in the employees' vacation schedules, and
also, reminding them that "Some of you expect raises," stated, "I have a list of
employees who are scheduled for raises."
The circumstances leading up to Johnson's June 7 speech are not disputed, nor is
the major portion of its contents. There exists an issue' of credibility between
Johnson and Crescimanno on whether Johnson threatened to close the plant down if
the Union came in. Although resolution of this issue is not crucial to the question
of whether or not violation of Section 8(a) (1) of the Act occurred, since I would
answer that question in the affirmative even in the absence of such a threat to close
down, I nevertheless resolve this issue of credibility in favor of Crescimanno. I do
so because I was well impressed with Crescimanno's testimonial demeanor, while
I cannot say the same for Johnson because of her serious equivocations, evasions,
and contradictions of her own prior signed statements, and also because Respondent
failed to produce other employees or personnel to dispute Crescimanno and also
failed to produce an alleged transcript of Johnson's speech which Comptroller
Sullivan's testimony indicates was in Respondent's possession.
It is entirely apparent that Johnson's speech of June 7 occurred because she had
learned the day before, as she testified, from Vice President and Plant Forelady
Ann DiGiuseppe, as well as from employees, about the union organizational activity
which had started the night before (June 5). It is equally clear that the purpose of
her speech was to nip in the bud any thoughts of organizational affiliation which
the employees might beyentertaining: (a) through portrayal of the Union not only
as unnecessary, but as an unwanted and unwholesome intruder into a "happy family"
which would bring disharmony, disorder, disorganization, fighting, and disrespect-
ability in its wake; (b) through announcement of economic benefits, promise of fur-
ther economic benefits dangled in expectancy, pending the outcome of the union
drive; and (c) through express invitation to the employees who wished to join the
Union to leave Respondent's employ. This was superimposed, as will appear, upon
a background of announced intention not to deal with a union and threat to close
the plant down if a union came in. It was supplemented, as will also appear, by
discharge of two union members, including the vice president of the Union. The
unmistakable point to the grisly tale of "Raw-headed Bloody Bones" which formed
the focal dramatic highlight of the speech was to depict the Union as a horrible
apparition to be resisted and not given into at any cost by the members of the "happy
family working together" whose idyllic relationship would be disrupted by such in-
trusion into their well-ordered, satisfactory affairs.
It is well settled that promises and threats of this nature during organizational
activities constitute interference with and are in restraint and coercion of employees'
legally guaranteed rights of self-organization under the Act. I accordingly find and
conclude that by the described conduct of Respondent, involving the announcement
of economic benefits and promise or holding out of further economic benefits,4 the
invitation to its employees to quit its employ if they wished to join the Union, and
its announcement that it would not deal with a union and would close its plant in
the event of unionization, Respondent violated Section 8(a)( I) of the Act, as alleged
in paragraphs 8(a) and (b) of the complaint.
B. Interrogation
Respondent's president, Johnson, testified that as a matter of routine Respondent
at times inquired of job applicants whether they were members of the Union. Re-
spondent's supervisor of cutters, Bonventre, indicated in his testimony that although
in his hiring of cutters he "sometimes" asked job applicants if they belonged to a
4 Respondent urges in its brief that since Johnson's promises of economic benefits in her
speech were not conditioned upon the employees' rejection of the Union, they were not vio-
lative of the Act This contention is unsound. Employers' grants or promises of benefits
during organizational activities may be violative of Section 8(a) (1) even if unconditional.
N.L.R.B. v. Exchange Parts Company, 375 U.S. 405. Such actions carry "the suggestion
of a fist inside the velvet glove. Employees are not likely to miss the inference that the
source of benefits now conferred is also the source from which future benefits must flow
and which may dry up if it is not obliged." Id. at 409.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union, it was not the "policy" to ask this question .5 Despite this attempt by
Bonventre to minimize the effect of Johnson 's admission , the applicable allegation
of the complaint refers in the alternative to company "policy or practice," so that it
makes little if any difference whether this conceded activity on the part of Respondent
be regarded as a "policy" or as a "practice ." In its brief, in discussing this allega-
tion of the complaint , Respondent again emphasizes that Bonventre "denied" such
a "policy," while in 'no way commenting upon the admitted existence of the "prac-
tice." Respondent 's own testimony establishes that it was its "policy or practice"
to ask applicants for employment whether they belonged to a union. No justifica-
tion or explanation was advanced for this policy or practice . If, as Respondent in-
sists, it had no relationship to whether or not a job applicant was hired, then it is
difficult to understand why it was pursued. In the context of the background and
unfair labor practices herein , such a policy and practice assumes a significance it
perhaps might not otherwise have and it may be regarded as coercive , since in the
absence of disclosed and legitimate reasons therefor it suggests that membership in
a labor organization affects the eligibility and prospects of job applicants for em-
ployment, and it is therefore violative of Section 8(a)(1) of the Acts
It is accordingly found and concluded that by its policy or practice of asking
applicants for employment whether they belong to a union, Respondent violated
Section 8 (a)(1) of the Act, as alleged in paragraph 8(c) of the complaint?
C. Discharge of employees
1. Jean Crescimanno
Jean Crescimanno entered Respondent 's employ in March as a single-needle opera-
tor. The regular work hours of operators were 8 a .m. to 4:20 p.m. However, at
the start of her employment Crescimanno explained to Vice President and Factory
I It is to be observed that, in view of the extremely small number of cutters ( not over
3 or 4, of a total work force of as many as 93 ), he was hardly in a position to know.
Neither DiGiuseppe nor any other of Respondent ' s supervisors who did the bulk of the hir-
ing (I e ., of operators) was produced by Respondent to testify.
See, e g' Schnell Tool & Die Corporation , and Salem Stamping & Manufacturing Co,
Inc., 144 NLRB 385; Radiator Specialty Company, 143 NLRB 350; Schott Metal Products
Company, 128 NLRB 415, 429-430; Liberty Coach Company, Inc, 128 N'ZRB 160, 165-
166; L B. Woods, L. J Reischman, C. D. Dofllemeyer & G. W. Ewing, d/b/a Breckenridge
Gasoline Company , 127 NLRB 1462, 1463 . Blue Flash Express, Inc , 109 NLRB 591, cited
by Respondent , is inapposite since, unlike Blue Flash, under Respondent ' s own testimony
the interrogation was not isolated , and also unlike Blue Flash there is here a series of
unfair labor practices within a matrix of expressed determination to keep the Union out
of the plant. Nor, contrary to Respondent 's views advanced in its brief , is it essential to
establish that Respondent actually refused employment to applicants who belonged to a
union, since the coercive effect of such interrogation is sufficient to violate Section 8(a) (1).
Cf. National Welders Supply Co, Inc, et al, 132 NLRB 660, 662, 670. Furthermore, even
if it be assumed that Bonventre did in fact hire union cutters, this may well have been
due to the fact, as indicated by his own experience , that it was apparently difficult to ob-
tain nonunion cutters. The same may not have been true of operators.
4 Respondent ' s motion , upon which decision was reserved at the hearing, to dismiss para-
graph 8(c) of the complaint is accordingly denied Although paragraph 8(c) was added to
the complaint by amendment on motion of General Counsel during the hearing , proof of its
allegations may properly form the basis for findings and conclusions herein, inasmuch as
the evidence in support thereof came from the testimony of Respondent itself, legal sur-
prise could not be claimed, prejudice was not established, the issue was fully litigated, Re-
spondent did not seek to avail itself of an invitation for a continuance if desired , and the
issue is tendered for decision in its posthearing brief. Cf N.L R B. v. Puerto Rico Rayon
Mills, Inc, 293 F 2d 941 , 947-948 (C.A. 1) ; Rocky Mountain Natural Gas Company, Inc.,
326 F 2d 949, footnote 3 (CA. 10) ; Plumbers and Steamfitters Union Local 100, affiliated
with the United Association of Journeymen & Apprentices of the Plumbing and Pipe fitting
Industry of the U S. and Canada, AFL-CIO, etc. (Beard Plumbing Company ), 128 NLRB
398, 399-400, enfd. 291 F. 2d 927 (C.A. 5) ; N.L.R.B. v. Raymond Pearson, Inc ., 243 F. 2d
456 (CA. 5) ; N L R B. v. Sunbeam Electric Manufacturing Co , 133 F. 2d 856, 858
(C.A. 7) ; New England Web, Inc, et al , 135 NLRB 1019, 1023-1024, reversed on other
grounds 309 F. 2d 696 (C.A. 1);Fred H. Johnson, trustee under the will of Clay M.
Thomas , deceased , doing business as Atlas Linen and Industrial Supply, 134 NLRB 1230,
1231-1232; Clearfield Cheese Company, Inc., 106 NLRB 417, 424, modified on other grounds
213 F. 2d 70 ( CA. 3) ; Federal Rules of Civil Procedure , Rule 15(b).
D'ARMIGENE, INC. 9
Forelady Ann DiGiuseppe, who hired her, that because she had to get her three
children off to school she could not be in at 8 a.m., so DiGiuseppe authorized and
agreed that she could come in later. Thereafter, Crescimanno-as well as other
operators working under similar "arrangements-regularly and routinely came in to
work after 8 a.m. (usually 8:30 to 9), without criticism, warning, or comment at
any time. She was, of course, paid only for time actually time-clocked.s Not only
is there no contention that the quality or quantity of Crescimanno's work was in any
way ever criticized or questioned, but the evidence clearly establishes that her work
was regarded as of unusually high quality (so that she was even assigned to do
correctional work on production of other operators), praised by supervisory and
managerial personnel, and brought about for her a $5 weekly raise about a month
and a half before her discharge.
Crescimanno has been vice president (an elective office) of the Union since
March 1962. Although monthly union meetings had been held and Crescimanno's
union status was known at the plant, according to the testimony of Respondent's
president, Johnson, ' Crescimanno's affiliation with the Union became known to.
Johnson in April or May 1963, at which time Ann DiGiuseppe informed Johnson
about it.
As has already been described, the Union's organizational campaign began on-
Wednesday evening, June 5, and Johnson learned of it on June 6 and made her
speech to the assembled employees on Friday afternoon, June 7. On Monday,
June 10, Crescimanno was summarily discharged. The undisputed circumstances of
this discharge were as follows:
As Crescimanno was about to punch out at the end of her day's work on Monday,
June 10, she was told by her immediate supervisor, Ann Amabile; that the head
forelady, Vice President DiGiuseppe, wished to speak to her. When Crescimanno.
asked if there was anything wrong with her work, Amabile said, "No, not that I
know of." Crescimanno went to -see DiGiuseppe, who notified her that although
there was nothing wrong with her work she was being discharged for lateness and'
absence. When Crescimanno expostulated that this was unfair since others were in
the same category,9 DiGiuseppe said, "Yes, I know. We're going to have to start
with someone, so we'll start with you." When Crescimanno said, "Why me,"
DiGiuseppe merely indicated that "It is unfortunate, this is the way it is." After
gathering up her tools and leaving, Crescimanno at once called these facts to the
attention of Edward Banyai, manager of the Union. In company with Dante Gald ,
(discharged by Respondent the next day under circumstances about to be detailed)
and other employees of Respondent who went out on strike (as described below) int
protest of these discharges, she commenced picketing Respondent's plant on June 12,
continuing until around mid-July.'°
Neither DiGiuseppe nor Amabile was produced at the hearing, and the facts testi-
fied to by Crescimanno as detailed above were in no way disputed by Respondent.
Johnson's testimony indicated that she learned of Crescimanno's union affiliation,
from Ann DiGiuseppe in April or May; that there were other working mothers in
the plant who by arrangement did not report to work at 8 a.m.; that Crescimanno'
was a good worker; that Crescimanno was at no time warned; and that Crescimanno
was singled out of all employees for discharge.
Although Respondent insists it discharged Crescimanno only because of her late-
ness and absences, its evidentiary showing in that regard, particularly when con-
sidered in the light of all surrounding circumstances, including the precipitate timing
of that discharge, is far short of persuasive. As already indicated, I found Johnson
wanting in testimonial quality, while I had no comparable reservations concerning.
Crescimanno; and, neither DiGiuseppe nor Amabile, who figured directly in the
discharge, was produced by Respondent, under whose ready control each was. In
resolving the issues concerning Crescimanno's discharge in her favor and conclud-
ing that her discharge was discriminatory, I have also taken into consideration, in
addition to credibility, the fact that she was undisputedly hired by Respondent on a
8 During her employment with Respondent (terminating June 10) Crescimanno was ab-
sent a total of 20 out of 09 workdays because of illnesses of her children, without warning,
criticism, or adverse reaction from Respondent.
8 Crescimanno's testimony that she was hired on this basis, that she was at no time criti-
cized or warned about it, and that other working mothers at the plant were employed on
the same irregular or "later" starting time basis , indeed that others were coming in later
than she, was in no way controverted
10 Although Crescimanno apparently discontinued picketing around mid-July, others con-
tinued thereafter.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
later starting time , irregular attendance basis, as a working mother , the same as
other operators in its employ ; that others similarly situated in the plant reported for
work as late as and even later than she did ; that she was at no time criticized or
warned about coming in late; that there is no indication that her absence record was
unusual , or that it was criticized or objected to; 11 and that her work performance,
both as to quality and quantity , was not only never criticized or questioned , but, on
the contrary , praised and resulted in a raise shortly before she was discharged. I
have further taken into consideration the fact that she was the union vice president
and that Respondent admits it learned of her union affiliation shortly before her dis-
charge; the timing of her discharge right after the start of the union organizational
campaign ; the summary nature of the discharge ; and the fact that she was singled
out of all others in the same category.
There are three striking general characteristics in this evidence . In the first
place, some of these [discharged ] employees had been long -time, responsible
and faithful employees , and others had been commended for their work. All
were discharged summarily , without preliminary warning, admonition or oppor-
tunity to change the act or practice complained of. Such action on the part of
an employer is not natural . If the employer had really been disturbed by the
circumstances it assigned as reasons for these discharges , and had had no other
circumstance in mind, some word of admonition , some caution that the offend-
ing lapse be not repeated , or some opportunity for correction of the objection-
able practice , would be almost inevitable . The summariness of the discharges
of these employees , admittedly theretofore satisfactory, gives rise to a doubt as
to the good faith of the assigned reasons. In the second place, all the discharges
took place promptly after the union was formed . . . . In the third place, the
evidence is clear that the officials of the company were greatly perturbed at the
formation of the union and were absolutely, opposed to it . . . . Clearly the
unionization of the employees was much in the minds of the company 's officials.
[Prettyman, J., in E. Anthony & Sons, Inc. v. N.L.R.B., 163 F. 2d 22, 26-27,
cert. denied 332 U.S. 773.]
This case thus presents a pattern of discriminatory discharge which is not infre-
quently encountered in cases of this nature. Careful appraisal of all surrounding
circumstances persuades me that the purpose of Crescimanno 's discharge, coming as
and when it did, was to restrain and coerce other employees from exercising their
legal rights , in the budding union campaign , to affiliate with the Union or otherwise
to engage in the self-organizational activities guaranteed by the Act.
It is accordingly found and concluded that by its discharge of Jean Crescimanno
on June 10, Respondent violated Section 8 (a)(3) of the Act, as alleged in para-
graphs 9 and 10 of the complaint.12
u Although Crescimanno was absent from work 20 out of a total of 69 workdays during
her term of employment , her testimony is uncontroverted that Respondent in no way ob-
jected thereto ; nor is there any indication that this was an extraordinary comparative
absence record in Respondent 's plant; nor , considering the nature of the apparently loose
working arrangements and irregular working hours prevalent among the local housewives
employed at Respondent 's factory , is there any reason to suppose this was the real basis
or even a significant factor in Respondent 's decision to discharge so able a worker as
Crescimanno
12 In its brief, Respondent argues that Crescimanno 's discharge cannot be considered to
have been discriminatory because she would have left Respondent's employ voluntarily
within a few weeks after the date of her termination in order to take care of her children
during their summer vacation from school . This contention is unsound because this was
not a factor entering into Respondent 's discharge of Crescimanno ; indeed, it was not even
known to Respondent at the time . ( Even had it been a factor , it is well settled that where
a nondiscriminatory factor and a discriminatory factor both underlie a discharge , the dis-
charge is illegal since in part at least it is illegally motivated . Cf. N.L R.B v. Fitzgerald
Mills Corporation, 313 F. 2d 260 , 269 (C A. 2 ) ; N.L.R B v. Linda Jo Shoe Company, 307
F. 2d 355 , 357 (CA. 5 ) ; N L.R B. v. Jamestown Sterling Corp., 211 F . 2d 725, 726
('C.A 5) ) While not material to the issue of the legality of Crescimanno 's discharge, the
question of whether Crescimanno would have worked during the summer does, however,
relate to the issue of remedy and compliance . It is therefore dealt with below, under the
section of this Decision captioned "The Remedy." The same is true of Respondent's offer
of reinstatement , which is discussed under "The strike" and dealt with in "The Remedy,"
below.
D'ARMIGENE, INC. 11
2. Dante Galdi
Dante Galdi was hired as a marker-cutter on or about May 22 by Johnson and
Cutting Department Supervisor Anthony Bonventre. According to Galdi's testi-
mony, at his preemployment interviews he disclosed he was a union member and
could not indefinitely continue working in a nonunion shop without a working card
from the Union. Although Respondent hired him-Bonventre's testimony indicated
there was a scarcity of good cutters-Johnson made it a point to say that she had
"no intention of having a union" in her factory and that "if [I have] to go out, [I
have] to go out clean more ways than one." After a few days, Bonventre made it
known to Galdi that he could have a raise to $125 per week (from the $110 he was
then receiving) if he remained permanently. Galdi told Bonventre he was willing
to remain but could give no assurance how long, since he was awaiting permanent
appointment to a Post Office Department job, which might not come through for a
year. Bonventre assured Galdi he "could stay until the Post Office call [s] for [you],"
an assurance which Galdi accepted. Approximately 3 weeks later, when another
cutter, Larry Zuaro, was taken on, Bonventre and Galdi confirmed Galdi's remaining
in Respondent's employ until the Post Office job came through; and, on this occa-
sion (Friday, June 7), Galdi indicated he would be taking the following Monday
(June 10) off on personal business and would be back to work the next day, Tuesday,
June 11, to which Bonventre assented. However, when Galdi returned to work on
Tuesday 13 he was met by Bonventre, who called him into the office and told
him, "You know that the union delegates have been going around to see various
people . . . Mrs. Johnson feels that you are a union member and if the union
comes in and so forth, you will naturally vote with them." Galdi readily acknowl-
edged this, since, as he said, he had been a union member for 20 years. He then
returned to his work. Later that morning, following a conference among Bonventre,
DiGiuseppe, possibly Comptroller Sullivan, and Johnson, Bonventre informed Galdi
he was fired. When Galdi asked Johnson, "Why are you pulling a trick like this,"
she replied, "Danny, we hate to see you go. You know your work, you're a good
man but we feel that should the union come in, any kind of vote or anything like
that, you would vote the union way." Galdi was thereupon given a blouse to take
home to his wife as a parting gift in connection with his discharge, and he told
Johnson that if the plant became unionized to let him know so that he could return
to work for her. After he left, he reported the circumstances of his discharge to the
Union and thereafter joined in the picketing which ensued
The foregoing version of the circumstances of his employment and discharge, as
testified to by Galdi, was disputed at the hearing in important respects by Respond-
ent Supervisor Bonventre, who claimed that it was he who hired Galdi, and that it
was not until after Galdi had started to work that Galdi learned the plant was not
unionized, whereupon he indicated he could not risk working there since he was a
union man but at Bonventre's request agreed to remain until a replacement could be
found. However, also according to Bonventre's testimony on cross-examination, a
day or two after he started to work, Galdi's salary was raised from $100 to $110 per
week when Galdi accepted Bonventre's offer to remain with the Company perma-
nently, when Bonventre also told him that he "probably . . . will be able to get you
more money." Notwithstanding this, however, it was Bonventre's contention that he
sought and obtained a replacement for Galdi, starting work on Monday, June 10,
the second workday after the unionization campaign was discovered. Bonventre
attempted to ascribe this action to the supposed imminence of Galdi's departure to
take a Post Office job. According to Bonventre's testimony, the replacement for
Galdi was Larry Zuaro, a person self-employed in the phonograph record sale busi-
ness, with no cutting experience in the line of goods being manufactured at Respond-
ent's factory but with some prior experience in cutting other goods. Further accord-
ing to Bonventre, when Galdi came in on Tuesday, June 11 (it will be recalled that
Galdi had been off the day before), Bonventre did not discharge him but Galdi in-
formed Bonventre that he was "going to leave" because he was in "trouble" with
the Union; whereupon Bonventre told him he could remain for "the rest of the day."
Bonventre denied that he, or Johnson in his presence, told Galdi that he would have
to leave because Johnson felt he would vote for the Union.
Zuaro, the alleged "replacement" for Galdi, worked only 2 days, June 10 and 11
(the day of Galdi's termination), and joined the strikers and picketers on June 12.
Johnson denied that Galdi was discharged-for union reasons or for any other
reason-claiming that she saw Galdi in the middle of the day on June 11 with tools
13 I.e , his first workday after Johnson's speech of Friday, June 7, and the day after
Crescimanno was discharged.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in hand and asked whether he was leaving and that Galdi replied that he was because
he was in trouble with the Union. Respondent Comptroller Sullivan-with no per-
sonal knowledge of the circumstances-also testified that Galdi was not discharged
but quit on June 11.
It is apparent from the foregoing that determination of the legality of Galdi's dis-
charge under the Act turns primarily upon resolution of credibility. I have already
commented upon my impressions of the testimonial quality of Johnson, a highly
interested witness who not only hedged and equivocated but resisted testifying on
certain facts potentially inimical to her interests until confronted with prior signed
statements originating from her. Sullivan testified only on a conclusory element of
the Galdi matter (namely, his conclusion that Galdi "quit"), a matter as to which
he had no personal knowledge. The basic choice of credibility with regard to the
true nature of the Galdi termination therefore lies between Galdi and Bonventre.
I have no hesitation in stating that this leaves me with no real problem . While, on
the one hand, I was extremely favorably impressed with Galdi's testimonial be-
havior, on the other hand I was more than extremely unfavorably. impressed with
that of Bonventre, who was not only inconsistent and hedged, equivocated, displayed
"convenient" forgetfulness, and obvious hostility and rancor, but also admitted pre-
varication in his testimony before me at the hearing. When asked why he had
changed his testimony during the hearing, Bonventre nonchalantly passed it off by
breezily saying, "it just came out," indicating that some of his testimony was a fabri-
cation or figment of his imagination created while on the witness stand. In addition
to my extremely adverse reactions to Bonventre's testimonial demeanor and my low
estimation of his credibility, I also reject his version of Galdi's hiring, tenure, and
firing for other reasons, preferring instead the version of Galdi as being the more
inherently probable in an industrial relations frame of reference not unfamiliar in
cases of this type. Thus, for example, I cannot believe (as Bonventre would have
it) that Galdi did not ask or learn that the plant was nonunion until after he was
already working there. Nor do I believe that if, as Bonventre testified, Galdi agreed
to remain in Respondent's employ permanently (this being, according to Bonventre,
the reason for the $10 weekly increase to Galdi), a replacement would have been
sought for Galdi, who was concededly a highly skilled worker whom Respondent
was anxious to retain in its employ as long as possible-i .e., until such time as he
might receive a Post Office appointment. Nor can I believe that if, as Bonventre
indicated , it was only at Bonventre's requests ( allegedly on several occasions) that
Galdi agreed to continue to work there until a replacement could be found for him,
Bonventre would precipitately terminate Galdi immediately that an alleged replace-
ment reported, especially a "replacement" who was not really tried and proven in a
job requiring considerable skill and experience, who was hired without even a test or
trial, and who did not come from another cutting job but from unrelated and un-
qualifying self-employment in the phonograph record business. Nor can I believe
that the timing of Galdi's termination vis-a-vis the budding unionization campaign
was merely coincidental. Nor do I believe Bonventre's testimony that although he
had learned on June 6 that the unionization activity was going on, he did not tell
Johnson about it before the employees were assembled for her speech on the after-
noon of June 7; nor that Bonventre was under any misapprehension about the fact
that Galdi's hoped-for Post Office job might not eventuate for a long time; nor that
Bonventre replaced Galdi for this reason; 14 nor that Bonventre would have hired
a replacement for Galdi if it did not intend to replace Galdi; nor that Galdi would
have returned to work on Tuesday, June 11, if he intended to quit. Nor do I for
one moment believe that Galdi voluntarily quit-particularly in the midst of a
unionization campaign at the plant.
In crediting, as I do, Galdi's version of the circumstances of his employment,
tenure, and discharge, as testified to by him and described above, there is no doubt
in my mind that either at the inception of or very early during his employment with
Respondent Galdi intended to leave Respondent's employ as soon as he obtained a
more suitable job, or unless he received a working card from his union or unless
the plant or his unit (cutters) became unionized, or when his hoped-for Post Office
appointment came through; but there is also no doubt whatsoever in my mind that
he intended to remain there until one of those contingencies came to pass, and that
14 If, as Bonventre would have it, he replaced Galdi because the latter was imminently
about to step into a Post Office job (which Galdi denied, and which denial I believe ; and
as to which Galdi testified, and I believe, Bonventre had assured him he could remain until
the job became a reality), why then would Galdi have told Johnson in connection with his
termination, as Bonventre testified, that "after all this [unionization] Is straightened out,
you can give me my job back?"
D'ARMIGENE, INC. 13,
Respondent so agreed.15 Nor, in the all-inclusive overview of the particular labor
situation here presented, is there any doubt in my mind that Galdi was discharged in
the way he was and at the time he was, because of his union affiliation, Respondent's
expressed fear of his vote for unionization, and Respondent's desire to nip the
unionization effort in the bud by the coercive effect of Galdi's discharge coupled
with that of Union Vice President Crescimanno 16 the preceding day, upon other
employees contemplating union affiliation.
It is accordingly found and concluded that by its discharge of Dante Galdi on
June 11, Respondent violated Section 8(a) (3) of the Act, as alleged in paragraphs 9
and 10 of the complaint.17
D. The strike
Following the discharge of Crescimanno on June 10 and that of Galdi on June 11,
employees of Respondent went out on strike 18 and commenced picketing Respond-
ent's premises on June 12. The strike and picketing have continued. In this aspect
of the case, the issue presented is whether this was an unfair labor practice strike
or a recognitional strike. I believe and find that the strike was an unfair labor prac-
tice strike, induced by Respondent's unfair labor practices as herein found, and
triggered by the discriminatory discharges of Crescimanno and Galdi following
upon the heels of the starting of the self-organizational activities of the employees
a few days before those discharges.
John Sicignano, a marker-cutter in Respondent's employ since mid-1962 and a
member of Local 10 for over 6 years, testified that he and other employees of Re-
spondent went out on strike and picketed in order "to protect ourselves" because of
Respondent's "unfair labor practice" in discharging Crescimanno and Galdi for anti-
union reasons; as Sicignano expressed it, "I figured if they could fire one [union-
cutter, i.e., Galdi], who knows when it would be my turn." The pickets carried two
signs-one to the effect that Respondent was discriminating against ILGWU work-
ers, the other that Respondent had discriminatorily discharged a Local 10 cutter.
Sicignano testified that while he was picketing, he was asked by Ann DiGiuseppe,
"Are you afraid of these [Union] people?" and he firmly denied receiving any union
threats impelling him to strike. I was favorably impressed with Sicignano's de-
meanor and I credit his testimony. I believe and find that he went out on strike
because of and in protest against the discriminatory discharges of Crescimanno and
Galdi and the unfair practices as found, and that he was not coerced or otherwise
improperly influenced to strike through any threat or fear of bodily or other harm
to himself or anybody else.
Joseph A. Costa, called as a witness by Respondent, testified that he entered Re-
spondent's employ as a cutter on June 12, the day the picketing started, worked about
a.week , and quit . His leaving Respondent 's employ followed the visit to his home
of two union adherents (one of them Zuaro, the cutter hired by Respondent as the
"replacement" for Galdi ), who told him about a firing and that he was crossing a
11 It will be recalled that•Bonventre himself testified that it was on this occasion that it
was agreed that Galdi would remain permanently that he was given a $10 weekly raise and
the prospect of further increase . And Respondent 's reinstatement offer telegram of June 24
to Gald! also expressly refers to its being a "confirm [ ation of] our prior offer to you of
permanent employment " [ Emphasis supplied ]
1e Respondent makes much of the fact that another cutter, Sicignano , was also a union
member while in its employ, as negating the possibility that Galdi was fired for union
affiliation It proves nothing of the sort. It might , for example , well have been that with
the advent of still another union member ( Galdi ) Respondent was apprehensive-precisely
as testified to by Galdi as having been expressed by Respondent 's president , Johnson-lest
a representation election at the plant would result in a union victory, at least among the
cutters (who numbered not more than three eligible to vote at the time). It might also
indicate-as Bonventre conceded-that good cutters are scarce, and perhaps good nonunion
cutters even scarcer. Moreover, it is not necessary that an employer discharge all union
adherents before it be in violation of the Act for the discharge of some or even one. "[T]he
fact that [ petitioner ] retained some union employees does not exculpate [ it] from the
charge of discrimination as to those discharged " N.L.R.B. v. W. C. Nabor8, d/b/a
W. C. Nabors Company, 196 F. 2d 272 , 276 (C.A. 5), cert. denied 344 U.S. 865 . See also
N.L R.B. v. Link Belt Company, 311 U.S 584, 602.
19 As in the case of Crescimanno , an offer , of, reinstatement was made by Respondent to
Galdi some time after his discharge . , The,effect of this is-discussed in the portions of this
Decision captioned "The, strike ,and "The, Remedy. , ,
IS It was stipulated -by,counsel at the hearing that-- the striking employees;-In addition to
Crescimanno and Galdi, were Sicignano , Zuaro, Costa , Weissman , and Previtte.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
picket line, and enlisted his cooperation. Although Costa's reaction was, as he put
it, "I understood their situation because I also was a union man," he nevertheless
indicated his intention of working that day, whereupon they commenced picketing
his home until the police arrived. Apparently Costa soon obtained another job and
left Respondent's employ. He denied that he or his wife or daughter had been
threatened or had told him they had been threatened, or that he ever told Respond-
ent that he or his wife or daughter had been threatened, physically or otherwise, if
he continued to work for Respondent.
As has been indicated, Costa was produced to testify by Respondent. I was favor-
ably impressed with Costa as a witness and I fully credit his testimony.
Respondent contends that the employees who went out on strike and picketed did
so only because "coerced" by the Union, and not because of Respondent's unfair
labor practices including the discharges of Crescimanno and Galdi. Respondent
sought to establish this partly through argument (as distinguished from evidence)
and partly through the testimony of Cutter Supervisor Bonventre and Comptroller
Sullivan, each of whom testified to statements alleged to have been made to them by
employees (including Sicignano and Costa, who firmly denied making such state-
ments, and whom I believe). Much if not most of the statements which Bonventre
and Sullivan attributed to these employees consisted not merely of immediate hear-
say but of hearsay several times removed-such as, alleged repetitions of what Costa
had allegedly told Sullivan that Costa had allegedly been told by Costa's wife that
she had allegedly been told by some unidentified person or persons, or that Costa or
.his wife (or Costa through his wife) had allegedly been told by Costa's daughter
that she had allegedly become "upset because of certain phone calls" of undescribed
content from an unidentified person or persons; or such as alleged repetitions of
what Weissman (another employee) had allegedly told Sullivan that Weissman's wife-
had allegedly told Weissman that she (Weissman's wife) had allegedly been told by
some unidentified telephone caller; and similar hearsay, some, to be sure, not quite
so far removed. I admitted such testimony, properly in my opinion,19 not as evi-
dence of the truth of the hearsay statements themselves but as bearing upon the
state of mind of the persons 20 to whom allegedly made or repeated. However, it
would seem that when, as herein, the persons to whom such statements were allegedly
repeated themselves testify and are credited ,21 as to their own state of mind and
deny that the alleged statements were made to them, this is more convincing evidence
of their own state of mind than the alleged hearsay alone, particularly when warmed
over in the testimony of interested witnesses of lesser credibility 22 still further re-
moved from the unproduced original alleged sources. Considering the nature of the-
alleged hearsay, the fact that none of the persons to whom the alleged statements are-
ascribed was produced by Respondent, the fact that the nonproduction of such per-
sons was without exception unexplained and unaccounted for by Respondent, the
fact that no subpenas were requested by Respondent for the appearance of any of"
those persons, and the fact that the alleged conduits of the hearsay (Sicignano an(f
Costa, whose credibility, based upon close observation of their testimonial demeanor,
I rate high) flatly denied being `threatened or! making the statements attributed to,
them by Respondent's managerial and supervisory personnel (whose credibility I rate
lower), I place no credence in these alleged repetitions of uncorroborated remote
hearsay, and find that upon the evidence presented Respondent has failed to estab-
lish that any statement was made by the Union involving or implying any threat to,
or coercion upon any employee or member of his family to cause him to strike 23
19 Richardson , Evidence, see. 211 ('8th ed . 1955).
20 I e , Costa and Weissman.
21 I.e., Costa ( produced by Respondent as its witness ) and Sieignano . Weissman was
not produced.
22 Le; Bonventre and Sullivan. While I certainly do not place Sullivan on the same gen-
eral, credibility perch with Bonventre, nevertheless, in this particular aspect of the. case
I am unable to accept Sullivan's testimony in preference to the firm denials of Costa and'
Sicignano.• `
23 Although I have found, based upon the credited testimony of Costa and Sicignano, that
the alleged hearsay statements were in fact not made to either of them, it is, in any event,
at least questionable whether findings and conclusions, required to be supported by "re-
liable, probative, and substantial evidence" In this administrative proceeding (Administra-
tive Procedure Act, sees. 7(c) and 10(e) ; cf. IX Wigmore, Evidence, sec 2494, p. 300.
[3d ed. 1940] ; Consolidated Edison Co. of New York, Inc. v. N.L.R.B , 305 U.S. 197, 229;
230; Willapoint Oysters v. Ewing, 174 F. 2d 676, 690, 691 ( C.A. 9) ; N.L R.B. v . Bell Oil &
Gas Co., 98 F. 2d 406, 410 (C.A. 5) ; N.L.R.B. v. A . S. Abell Cot, 97 F. 2d 951, 958,
D'ARMIGENE, INC. 15
I further find that Respondent's employees did not go out on strike and picket be-
cause of any such statements or threats but solely because of and in protest against
Respondent's unfair labor practices including the discriminatory discharges of Cresci-
manno and Galdi, and that the strike which commenced on June 12 was an unfair
labor practice strike, as alleged in paragraphs 11(a) and (b) of the complaint 24
Respondent further contends that even assuming that its discharge of Crescimanno
and Galdi were discriminatory in violation of Section 8(a)(3) of the Act, and that
the ensuing strike was by reason thereof an unfair labor practice strike in its incep-
tion, nevertheless Respondent's liability to the discharged employees was terminated
and that the strike lost its character as an unfair labor practice strike. This con-
tention is predicated upon offers of reinstatement made by Respondent to those
employees on June 24 and 25, about 2 weeks following their discharge. There is
no doubt that on June 24 and 25 Respondent made offers of reinstatement to
Crescimanno and Galdi. Those offers were broad and unconditional, and they
neither included, excluded, nor mentioned backpay. According to the undisputed
testimony of Comptroller Sullivan, he later told Crescimanno on the picket line on
June 24 that Respondent was making her an "unqualified offer of reinstatement" but
that backpay would have to await determination by the Board. Galdi denied that
such a statement (reserving the backpay issue for the Board) was thereafter made
to him. Such a statement was not required, since the Board's powers relative to
finding and remedying the alleged unfair labor practices were independent of such a
pronouncement by Respondent. The Board has held that a discriminatorily dis-
charged employee may not refuse an unconditional offer of reinstatement, even
though unaccompanied by backpay; that such an offer tolls the employer's liability
for backpay subsequent to the date of the offer of reinstatement; and that the em-
ployer's liability for backpay preceding the offer of reinstatement remains for dis-
position through resolution of the unfair labor practice charges before the Board.
Reliance Clay Products Company, 105 NLRB 135, 137; G. W. Emerson Lumber
Company, 101 NLRB 1046; Differential Steel Car Company, 75 NLRB 714, enfd.
179 F. 2d 241 (C.A. 6). Requiring the employee to accept an unqualified re-
instatement offer without backpay thus mitigates what would otherwise be continu-
ing monetary liability on the part of the employer, while preserving the employee's
rights and the Board's interest in ultimate adjudication of the underlying substantive
questions involved in the original alleged unfair labor practice. However, although
Respondent's offers of reinstatement without backpay operated to toll further back-
pay accrual, they did not operate to erase Respondent's unfair labor practices which
had resulted in charges pending before the Board, in protest against which and for
the complete remedying of which other employees had gone out on an unfair labor
(C A. 4) ), may be rested upon hearsay alone, to say nothing of such uncorroborated remote
hearsay as herein. See Davis, Administrative Law Treatise , sees. 14.10-14.12 ( 1958) ;
Consolidated Edison Co. of New York, Inc. v. N.L.R.B., supra, at 230 ("Mere uncorrobo-
rated hearsay or rumor does not constitute substantial evidence") ; Willapoxnt Oysters v.
Ewing, supra, at 691; Act, sec 10(b) : "Any such proceeding shall, so far as practicable,
be conducted in accordance with the rules of evidence applicable in the district courts of
the United States under the rules of civil procedure for the district courts of the United
States, adopted by the Supreme Court of the United States pursuant to the Act of June 19,
1934 . ... ; N L.R.B. v Haddock-Engineers, . Limited, etc, 215 F. 2d 734, 736-737
(C.A. 9) ; N.L.R.B v. Amalgamated Meat Cutters and Butcher Workmen of North America,
Local 127 (Armour Creameries), 202,P. 2d 671, 673 (CA. 9).
24 Norlee Togs, Inc., 129 NLRB 14, relied upon by Respondent , is inapposite . That case
dealt with a charge that an employer refused to bargain as required by Section 8(a) (5) of
the Act under circumstances justifying good-faith doubt on the employer's part as to
whether the union represented a majority of its employees . Herein, no refusal to bargain
under Section 8(a)(5) is charged , but,* rather , discriminatory discharges in violation of
Section 8 ( a) (3). If Norlee Togs Is relied upon to support the proposition that the mere
fact that an employee strikes and pickets( does not per se establish that his action is based
upon an unfair labor practice of the employer ( rather than , for example, compulsion on the
employee from some other source ), such a proposition is a truism . Herein, however, there
is no substantial credible evidence-as distinguished from mere argument , supposition,
surmise, conjecture , and at best uncorroborated remote hearsay-of any coercion or com-
pulsion on the employees to strike and picket . On the contrary , the substantial credible
evidence establishes that the employees struck in protest against the discriminatory dis-
charge of two fellow employees and other unfair employer practices designed to thwart
their exercise of self-organizational rights secured to them by the Act.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice strike, as they had the right to do. In view of Respondent's unfair labor
practices, consisting of the discriminatory discharges of the two union members 25
and the plexus of immediately preceding and contemporaneously developing events
of which they formed an inseparable part, and the continued withholding of back-
pay due to them, the character of the resulting strike was not converted from its
original character of an unfair labor practice strike, in the absence of Respondent's
complete cessation and full remedying of those unfair labor practices-an objective
for the attainment of which the unfair labor practice strikers had the right to con-
tinue to strike, as they did.
I am unable to accept Respondent's theory that the employees struck as part of an
intricate scheme by the Union to organize the plant under the protective umbrella of
a fictional, rigged unfair labor practice situation 26 As already found, the record
does not support this contention. The employees went out on strike in protest
against the discharges of their fellow employees who were union members. It is
true that organizational activities continued after the discharges-but this does not
establish that those activities were the cause of the strike. Even if the strike was in
part motivated by organizational considerations , it would still be an unfair labor
practice strike: "The strike, which in fact did take place, was . . . an unfair labor
practice strike, even though other reasons were also present , since one of the reasons
for it was to protest an unfair labor practice [ citing cases ]." N L R.B . v. West
Coast Casket Company, Inc., 205 F. 2d 902, 907 (C.A. 9). See also N L.R.B. v.
Fitzgerald Mills Corporation, 313 F. 2d 260, 269 (C.A. 2), and cases cited. The
employees and the Union were under no obligation to discontinue their organiza-
tional efforts and activities just because discharges had taken place; nor did the fact
that the employees and the Union continued their organizational activities after
those discharges convert the unfair labor practice strike to an organizational or
recognitional strike.27
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall recom-
mend that it cease and desist therefrom and take certain affirmative action designed
2 Cf. Bernhardt Broa. Tugboat Service, Inc. v N.L.R B., 328 F 2d 757 (C A. 7). "Even
if the employees did hear of his [Chappell 's] reinstatement there was no offer of backpay
or posting of notices respecting Chappell to reassure them that reprisals were not to be
feared.
x As evidence to support this theory, Comptroller Sullivan, basically a credible witness
(even though during his testimony he required repeated prodding with written notes handed
to him by Respondent 's counsel to refresh his flagging recollection ), testified at length con-
cerning conversations and conferences with Union Business Agent Koozman while the strike
was in progress , involving what turned out to be abortive attempts at conciliation Re-
spondent contends that these establish that the true and only reason for the strike was to
organize the plant , and not in protest of the unfair practices . I do not agree . The fact
that the Union was willing or even desirous to enter into negotiations with Respondent
does not negate the fact that the strike which was already in progress was an unfair labor
practice strike and that the employees on strike had left work because of Respondent's un-
fair practices as herein detailed and found If, indeed , there were any doubt on this score,
it would be dispelled by Sullivan ' s own testimony that the primary demand of Union
President or Manager Banyai was that Respondent "reinstate the workers you fired with
full back pay," specifically referring to a female employee and specifically indicating that
the cutters were on strike because of Galdi's discharge
w Before leaving this point , it may be appropriate to dispose of a possibly related matter
which arose at the hearing and upon which decision was reserved This concerned a stipu-
lation proposed to opposing counsel by Respondent's counsel , setting forth certain alleged
"settlement" offers between Respondent and the Union , General Counsel not being a party
thereto. While taking no issue with the accuracy of the offers of settlement as described
by Respondent 's counsel and by him proposed to be stipulated with other counsel herein,
General Counsel and counsel for the Charging Party declined to enter into the stipulation
and objected to admission into the record of the subject thereof as incompetent and im-
material. Treating the proposed stipulation either as a demand for a concession or as an
offer of proof , I now sustain the objections and reject the offer of proof, since the subject
matter involved was clearly, incompetent with relation to, the issues herein, and because
such offers of settlement are inadmissible for the purpose intended , and for the further
reason that the particular offer even if admitted would have established nothing material
to or of assistance in,resolution of theIssues herein . Cf. Lexington Telephone Company,
et at, 39 NLRB 1130, 1132 ; footnote 44; IV Wigmore, Evidence, secs. 1061-1002 (3d ed.
1940 ). See also N .L.R.B. v. Fitzgerald Mills Corporation , 313 F. 2d 260, 269 (C.A. 2).
D'ARMIGENE, INC., 17
to effectuate the policies of the Act. Having found that Respondent discriminatorily
discharged two employees, I 'shall recommend that it take remedial measures appro-
priate to the case of each. Because of special circumstances, I shall not recommend
reinstatement in either case. -
As has already been pointed out, there'is•no question that Crescimanno and Galdi
each received and refused to accept an unconditional offer of reinstatement made by
Respondent on June 24 and 25. As has also been pointed' out, these refusals to
accept reinstatement were improperly predicated by the discharged employees upon'
Respondent's refusal to comply with the employees' demands for-backpay payments
as a precondition to returning to Respondent's employ. Having offered the dis-
charged employees reinstatement, Respondent was and is under no obligation to re-
new those offers once declined. The employees are therefore neither entitled to-
reinstatement nor to backpay after their refusal of the offers of reinstatement on
June 24 and 25 28 They are, however, entitled to backpay from the dates of their
wrongful discharges to the dates of the reinstatement offers. Accordingly, I shall
recommend that these discriminatorily discharged employees be made whole for any
loss of earnings suffered as a result of their unlawful discharges, by payment to each
of a sum of money equal to that which each respectively would normally have earned
as wages from the date of their respective discharges until the respective dates of
Respondent's offers of reinstatement, less net earnings if any during that period, to-
gether with interest on the resulting amount; backpay and interest to be computed
in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289,
and Isis Plumbing & Heating Co., 138 NLRB 716. In the case of Crescimanno, if
the last date she would have worked prior to the commencement of her children's
1963 summer vacation from school would have been prior to the date of Respond-
ent's reinstatement offer, then I recommend that such prior date be the terminal date
for her backpay; 29 and in any event, in the calculation of backpay in her case, appro-
priate allowance shall be made by ratio formula or otherwise, for work absences
during the backpay period, based upon her attendance record during the term of her
employment by Respondent. In the case of each of these employees, I shall recom-
29 Reliance Clay Products Company; G . W. Emerson Lumber Company ; Differential Steel
Car Company; supra. Even in the absence of their refusals to accept the reinstatement
offers, additional special considerations in the case of each of the dischargees would mili-
tate against their reinstatement, and I would therefore in any event have recommended
against reinstatement of either. In the case of Crescimanno, in view of her testimony that
she remained home from work during the entire sumnier of 1962 and intended to do like-
wise in 1963 while her three children were home on vacation from school, unless she suc-
ceeded in obtaining the services of a satisfactory babysitter or sitters or other suitable
help to take care of them, I would in any event have regarded the possibility that she
would have worked during the summer of 1963 as entirely too conjectural to justify a back-
pay award for that period. However, inasmuch as Respondent had no knowledge of her
intention not to work during the summer of 1963, she would still, in my opinion-had she
not declined the offer of reinstatement-have been entitled to backpay from the date of her
discharge until the date when her children would have started to remain at home on their
1963 summer vacation, less the usual deducted items. And-even had she not declined
the offer of reinstatement-I would still not have recommended her reinstatement. At the
time she was hired by Respondent, she did not disclose, nor did she thereafter disclose,
nor was there ever any understanding with her that she would not work during the sum-
mer, nor that she could return in the fall after a full summer's leave of absence following
only a few months of employment prior to the summer. The question of whether, under
these circumstances , she would have returned to or have been rehired by Respondent in the
fall if she had not been fired in the spring , and if so when, is likewise so highly speculative
and conjectural as not, in my opinion, in any event to have justified a reinstatement recom-
mendation (It will be observed that under the terms of the Recommended Order herein,
Crescimanno may, like Galdi and others, at any time apply for employment with Respond-
ent, without being subject to illegal discriminatory practices )
In the case of Galdi, I would likewise in any event-even had he not declined the offer
of reinstatement-have recommended against reinstatement in view of a letter which he
wrote on October 1 to counsel for the General Counsel, stating that he did not desire to
return to Respondent's employ. (The objections of General Counsel and counsel for the
Charging Party to the receipt in evidence of this letter, ruling upon which was reserved at
the hearing, are hereby overruled .) For the same reason, if he had not declined reinstate-
ment, I would have limited his backpay to the date of that letter , subject to the usual
deductible contingencies.
See footnote 28, supra.
760-577-65-vol. 148-3
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mend that Respondent be required to make available necessary records for computa-
tion of backpay due.
Since the strike of employees which commenced and has continued since June 12
was and is an unfair labor practice strike occasioned by and in protest against Re-
spondent 's unfair labor practices , I shall recommend that each and every employee
who engaged therein shall be offered immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other rights
and privileges , if necessary, by discharging other employees who may have replaced
him.
In view of the fact that the unfair labor practices committed are of a character
striking at the roots of employee rights safeguarded by the Act, I shall also recom-
mend that Respondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
I shall further recommend that Respondent be required to post an appropriate
notice.
CONCLUSIONS OF LAW
1. Respondent is 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. By the conduct set forth in section III which has been found to constitute un-
fair labor practices, Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed to them by Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a)( 1 ) of the Act.
4. By discriminatorily discharging and failing and refusing to reinstate Jean Cresci-
manno and Dante Galdi, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The strike of Respondent's employees commencing June 12, 1963, occurred
and continued in sole consequence of Respondent 's said unfair labor practices, and
therefore was and is an unfair labor practice strike, and Respondent's employees
who engaged therein were and are unfair labor practice strikers 30
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that the Respondent, D'Armigene,
Inc., its officers, agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging employees from joining or maintaining membership in, or giv-
ing assistance or support to, Local 107 or Local 10, International Ladies' Garment
Workers' Union, AFL-CIO, or any other labor organization, by granting, promising,
or offering said employees wage increases , improvements in vacation plans, or other
benefits or improvements in working conditions or terms of employment to refrain
from such membership, assistance , or support.
(b) Threatening employees with loss of employment , going out of business, not
dealing with their collective-bargaining representative, or other reprisals if they join
or remain members of or assist or support said Local 107 or Local 10 or any other
labor organization.
(c) Interrogating any applicants for employment on the subject of whether they
belong to or are sympathetic to the aims of or intend to join any labor organization.
(d) Discharging or refusing or failing to reinstate with full backpay any employees
by reason of their membership in or assistance or support to said Local 107 or
Local 10 or any other labor organization, or discriminating in any other manner in
regard to their hire and tenure of employment, except to the extent permitted by
the proviso in Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
S° In view of findings and conclusions herein, Respondent 's motions to dismiss the com-
plaint, made at the conclusion of the entire case and upon which decision was reserved,
are hereby in all respects denied. As to Respondent's contention that the Regional Director
at one time declined to issue a complaint-an action which was overruled or reversed by
the General (Counsel upon appeal of the Union ; cf. N.L.R.B. v. Pant Milling Company,
360 U.S. 301.
D'ARMIGENE, INC. 19
(e) In any other manner interfering with, restraining, or coercing employees in the
exercise of their right to self-organization , to form, join, maintain membership in,
assist, or support said Local 107, Local 10, or any other labor organization, to bar-
gain collectively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities, except to the extent
that such right may be affected by agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized by Section 8 (a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Make Jean Crescimanno and Dante Galdi whole for any loss of pay they may
have suffered as a result of the discrimination against them , in the manner set forth
in "The Remedy" section of this Decision.
(b) Offer to all employees who went out on strike on or after June 12, 1963, im-
mediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and in accordance
with the other conditions set forth in "The Remedy" section of this Decision.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under the terms of this Decision and Recommended Order.
(d) Post at its plant in Bay Shore, Long Island, New York, copies of the attached
notice marked "Appendix." 31 Copies of said notice, to be furnished by the Regional
Director for the Second Region, shall, after being duly signed by Respondent's author-
ized representative, be posted by Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ-
ing the plant lunchroom and all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from receipt of this
Decision and Recommended Order, what steps have been taken to comply therewith 32
"In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
12 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the Nationl Labor Re-
lations Board, and in order to effectuate the policies of the Labor Management Rela-
tions Act, as amended, we hereby notify you that:
-WE WILL take immediate steps to pay Jean Crescimanno and Dante Galdi all
pay which they lost because we discharged them on June 10 and 11, 1963, plus
interest.
WE WILL offer all employees who went out on strike on or after June 12, 1963,
following our discharge of Jean Crescimanno and Dante Galdi, immediate and
full reinstatement to their jobs or to substantially equivalent jobs, without preju-
dice to their seniority or other rights and privileges. ,
WE WILL NOT discharge or otherwise discriminate against any employee for
joining or remaining a member of, or assisting or supporting, Local 107 or
Local 10, International Ladies' Garment Workers' Union, AFL-CIO, or any
other union.
WE WILL NOT make or carry out any threat or reprisal, nor will we promise
any benefit, to discourage any employee from joining or remaining a member of,
or assisting or supporting, said Local 107 or Local 10 or any other union.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten to close down or not to deal with a union if our fac-
tory becomes unionized.
WE WILL NOT question applicants for employment on whether they belong to
a union, or on whether they intend to join or are in sympathy with a union.
WE WILL NOT in any other manner interfere with , restrain, or coerce any em-
ployees in the exercise of their right to self-organization , to form labor organi-
zations, to join or assist Local 107 or Local 10 , International Ladies' Garment
Workers' Union , AFL-CIO, or any other labor organization , to bargain col-
lectively through representatives of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
and protection , or to refrain from any or all such activities , except to the extent
that such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized in Section 8 (a) (3) of
the Act, as modified by the Labor -Management Reporting and Disclosure Act
of 1959.
All employees are free to become , remain , or to refrain from becoming or remain-
ing, members of any labor organization.
D'ARMIGENE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above -named employees if presently serving in
the Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue , New York, New York, Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
U.S. Tool & Cutter Co. and Mechanics Educational Society of
America, AFL-CIO. Case No . 7-CA-4550. July 27, 1964
DECISION AND ORDER
On April 6, 1964, Trial Examiner William F. Scharnikow issued
his Decision in the above-entitled proceeding, granting the motion of
the General Counsel to cancel the hearing scheduled herein and for
judgment on the pleadings,' finding that the Respondent had engaged
in and was engaging in certain unfair labor practices within the mean-
ing of the Act, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
1 At one point in ,his Decision, the Trial Examiner inadvertently referred to this motion
as the Respondent 's motion.
148 NLRB No. 4.